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2022 DIGILAW 847 (PAT)

Naresh Prasad Sharma v. State of Bihar

2022-10-11

MOHIT KUMAR SHAH

body2022
MOHIT KUMAR SHAH, J.:–The present writ petition has been filed primarily for directing the respondents to make payment of the retiral dues of the petitioner, who superannuated on 31.03.2021, while working as Headmaster, Upgraded Middle School, Fatehpur, Khaira, Jamui. 2. It is the complaint of the petitioner that the retiral dues have not been paid despite the petitioner having retired long back from his services. 3. Per Contra, it is the stand of the respondent-State, as is apparent from the counter affidavits filed in the present case that the entire retiral dues of the petitioner has now stood paid. 4. The learned Additional Chief Secretary, Education Department, Government of Bihar, Patna, who is present in the Court, has submitted that on account of objection being raised by the Office of the Accountant General, Bihar, Patna regarding incorrect fixation of pay scale of the petitioner due to grant of erroneous annual increments without the petitioner having passed the Hindi Noting and Drafting Exam and consequently, the pension papers/service book of the petitioner being returned to the department, the respondent State authorities had taken corrective measures, whereupon the pay-scale of the petitioner was re-fixed by excluding the annual increments, which had been erroneously granted to him, without him having passed the Hindi Noting and Drafting Exam. It is also submitted that though the pension and gratuity of the petitioner has now been calculated on the basis of the re-fixed pay-scale, as aforesaid, however, in view of the law laid down by the Hon’ble Apex Court in a catena of judgments, the most recent one being the one rendered by in the case of State of Punjab Vs. Rafiq Masih, reported in (2015) 4 SCC 334 , the respondent Department does not intend to make any recovery of the amount of excess salary paid to the petitioner on account of grant of annual increments to him without passing the Hindi Noting and Drafting Exam, especially in view of the fact that there has been no misrepresentation on the part of the petitioner to derive such benefits and the mistake is on the part of the respondents-State authorities, who had wrongly granted annual increments to the petitioner. 5. 5. This Court, in its order dated 10.08.2022, had though refuted the objection raised by the Office of the Accountant General, Bihar, Patna by relying on a judgment rendered by the learned Division Bench of this Court, in the case of State of Bihar and others Vs. Smt. Jivachi Devi, reported in 2020(2) BLJ 471, as upheld by the Hon’ble Apex Court, however, it has been pointed out that although it has been held in the said case that excess salary paid to the concerned employee cannot be recovered after superannuation but then it has also been held therein that passing of departmental / accounts examination is not a condition precedent for grant of the benefits of A.C.P./ M.A.C.P., whereas the present case pertains to denial of annual increments, upon promotion, in case the incumbent does not pass the Hindi Noting and Drafting Exam within one year. In this connection, reliance has been placed on Bihar Government Servant (Hindi Examination) Rules, 1968, framed under proviso to Article 309 of the Constitution of India, which are statutory in nature and would govern the mode and manner of grant of annual increments to the concerned employee, subject to passing of the Hindi Noting and Drafting Exam. Rules 3 and 7 of the Bihar Government Servant (Hindi Examination) Rules, 1968, are reproduced herein below:— ^^3- gjsd ljdkjh lsod dks ftldh fu;qfDr ,sls in ij gqbZ gS] tgka mls vius dÙkZO;&lEiknu ds Øe esa fVIi.kh fy[kuk vkSj izk:i.k rS;kj djuk iM+rk gS ftuesa fjiksVZ vkfn Hkh 'kkfey gks] nsoukxjh fyfi esa fgUnh fVIi.kh vkSj izk:i.k dh ijh{kk esa ml in fu;qfDr ls ,d o"kZ ds Hkhrj mÙkh.kZ gksuk gksxkA tks ljdkjh lsod ljdkjh ladYi la[;k&1632] fnukad 11 vDVwcj] 1961 ds vèkhu fofgr vkSj dsUnzh; ijh{kk lfefr }kjk lapkfyr fgUnh dh foHkkxh; ijh{kk esa mPp ;k fuEu Lrj ls mRrh.kZ gks pqds gSa] mlds fy, bl ijh{kk esa mÙkh.kZ gksuk visf{kr u gksxkA 7- ftl ljdkjh lsod dks nsoukxjh fyfi esa fgUnh fy[kus&iढ+us dh ijh{kk ;k nsoukxjh fyfi esa fgUnh fVIi.kh vkSj izk:i.k dh ijh{kk] vFkok nksuksa ijh{kkvksa esa mÙkh.kZ gksuk gS mls rc rd u rks osru&o`f) nh tk;sxh] u lEiq"V fd;k tk;sxk] u n{krkjksd gh ikj djus fn;k tk;sxk] tc rd og visf{kr fgUnh ijh{kk ;k ijh{kkvksa esa mÙkh.kZ u gks tk;A** 6. The learned Counsel for the respondent State has further referred to Letter No. F/Va3-0277/77 Shi. The learned Counsel for the respondent State has further referred to Letter No. F/Va3-0277/77 Shi. 1846 dated 25.05.1977, issued under the pen and signature of the Special Secretary as well as to Letter No. 3/M 1-49/2002-4048/vi (2) dated 03.06.2003, issued by the Finance department, Govt. of Bihar, wherein it has been postulated that such teachers who get posted/promoted on the post of Headmaster of a middle School, will have to pass the Hindi Noting and Drafting Exam within a period of one year otherwise their pay increment shall remain stopped automatically. 7. I have heard the learned Counsel for the parties and gone through the provisions contained in the Bihar Government Servant (Hindi Examination) Rules, 1968 as also those contained in the aforesaid circulars dated 25.05.1977 and 03.06.2003. A bare perusal of the provisions contained in the Bihar Government Servant (Hindi Examination) Rules, 1968 would show that the same does not provide for denial of annual increments to the concerned employee, upon promotion, in case of non-passing of Hindi Noting and Drafting Exam within one year. However, the aforesaid circulars dated 25.05.1977 and 03.06.2003 do postulate that such teachers who get posted/ promoted on the post of Headmaster of a middle School, will have to pass the Hindi Noting and Drafting Exam within a period of one year otherwise their pay increment shall remain stopped automatically. Though, the Bihar Government Servant (Hindi Examination) Rules, 1968 would definitely have statutory force but then it is to be adjudged as regards the validity and enforceability of the aforesaid circulars dated 25.05.1977 and 03.06.2003, however, since the said Rules/ Circulars are not under challenge in the present proceedings, resulting in lack of pleadings in this regard, this Court deems it fit and proper to leave the Question of law open, to be adjudicated in an appropriate case. 8. 8. Considering the arguments advanced by the learned counsel for the State, taking into account the averments made in the interlocutory application filed yesterday, in the Court itself, for modification of the order dated 10.08.2022 and considering the aforesaid Rules/ Circulars, which have been brought on record of this case yesterday only, this Court is of the considered view that though recovery of excess salary paid to the petitioner, not on account of any mis-representation on the part of the petitioner but on account of mistake of the respondent-State authorities, cannot be made, as has also been admitted by the learned Additional Chief Secretary, Education Department, Govt. of Bihar, Patna, but then the respondents would be entitled to rectify the mistake and re-fix the pay-scale of the petitioner, after deducting the annual increments granted erroneously to the petitioner, without passing of the Hindi Noting and Drafting Exam, for the purposes of computation of pension and Gratuity, an exercise which has already been effected in the present case. In such view of the matter, the order dated 10.08.2022, passed by this Court in the present case, setting aside the objection raised by the Office of the Accountant General, is modified to the extent that though the pension and gratuity of the petitioner would be computed and paid to him on the basis of the re-fixed pay-scale, as aforesaid, however, it would not be permissible either for the Accountant General, Bihar, Patna or for the respondent- State to make any recovery of the excess salary paid, on account of grant of annual increments erroneously, without passing of the Hindi Noting and Drafting Exam. 9. Nonetheless, this Court would grant liberty to the petitioner, to challenge the re-fixation of pay-scale, carried out by the respondents-State authorities, by deducting the annual increments granted to him upon being promoted on the post of Headmaster as also to challenge the aforesaid Rules/ circulars dated 25.05.1977 and 03.06.2003, by resorting to appropriate proceedings. 10. The writ petition stands disposed off on the aforesaid terms.