1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4173 of 2006 SAVITRI DEVI wife of Late Jagat Narain Pandey resident of village Ashahani, Post- Chainwa, Police Station- Rasulpur, District –Chapra (since dead and substituted by his legal representative) ... Petitioner. Versus 1. THE STATE OF BIHAR 2. The Commissioner-cum-Secretary, Department of Excise and Drug Control, government of Bihar, Patna. 3. The Joint Commissioner, Department of Excise and Drug Control, Government of Bihar Patna. 4. The Principal Superintendent of Excise, Katihar. 5. The Accountant General, Bihar, Patna. … Respondents. ----------- 2. 04.05.2010 I. A. No. 4303 of 2010 For the reasons mentioned in this application, the prayer made therein is allowed and the name of petitioner is directed to be deleted and in her place the name of Sanjay Kumar Pandey, eldest son of the deceased petitioner, is directed to be substituted. I. A. No. 4303 of 2010 is accordingly disposed of. C. W. J. C. No. 4173 of 2006 Heard counsel for the petitioner and counsel for the State as also counsel for Accountant General. The prayer made in this writ petition reads as follows:- “1. That this is an application for issuance of appropriate 2 writ(s)/direction(s) directing the respondent authorities to fix the family pension of petitioner on the basis of last pay which was withdrawn by her late husband prior to his death. And further for direction to the respondents to pay family pension and arrears of family pension in revised scale to the petitioner with statutory interest. And/or for grant of any other appropriate reliefs for which she may be found entitled in the eye of law.” Counsel for the petitioner would submit that the original petitioner was a widow and she had no concern as to whether her husband the employee had passed the departmental examination in his lifetime during the period of service. He would further submit that the substituted petitioner representing the interest of his deceased father cannot be penalized in the matter of payment of arrear of family pension inasmuch as the original petitioner the widow had to be paid family pension @ 30 per cent of the last salary drawn by her husband. Counsel for the petitioner in this respect relies on an order of this Court dated 26.8.2003 in C.W.J.C. No. 5654 of 2003 wherein this Court had quashed the order with regard to recovery being made from the retiral benefit 3 of the excess amount allegedly paid to the husband of the original petitioner. In the opinion of this Court there are always two aspects as with regard to payment of retiral benefit one being entitlement and the other being the payment. In this case there is no doubt that there was a provision of relaxation in passing of the Hindi Noting and Drafting examination but such relaxation was never given to the husband of the original petitioner, i.e. the father of the substituted petitioner. Consequently, whatever extra payment were made to the deceased employee by way of increments in his service career and were sought to be recovered, from him, was quashed by this Court by order dated 26.8.2003 in C.W.J.C. No. 5654 of 2003 but that however would not mean that qualifying pay for payment of retirement benefit would be also the enhanced amount with such inadmissible increments to which the deceased employee was never entitled on account of his not passing the compulsory Hindi Noting and Drafting examination, under statutory Rules. Once this aspect of the matter becomes clear in view of admitted fact that the husband of the original petitioner was never granted relaxation from 4 appearing or passing the Hindi Noting Drafting Examination, his ultimate payable salary would be the one which he was entitled to get in law. The respondents have explained this aspect in the counter affidavit by making it clear that after the order of this Court the excess amount of salary which was recovered from the original petitioner had been refunded and her family pension had been fixed on the monthly salary which the husband of the original petitioner was entitled to draw in accordance with law. This Court, therefore, does not find any error in such procedure adopted by the respondent and accordingly the prayer of the petitioner that family pension should be paid on the last pay of Rs.4900/- must be and is hereby rejected. The family pension has been correctly fixed and paid on the basis of salary which the husband of the original petitioner was entitled to get in law i.e. Rs. 4400/- per month. Coming to the next grievance of the original petitioner that pay-scale of her husband had been revised and thus there would be a requirement of refixation of family pension, this Court would direct the respondents to examine this aspect and if there is any provision of such 5 refixation of family pension in the order of the State Government revising pay scales of retired employees the same would also be gone into and decided in accordance with law within a period of six months from the date of receipt/production of a copy of this order. Let it be made clear that as the original- writ petitioner, widow has died on 27.9.2008 now the question would only remain to payment of arrears to the substituted petitioner and thus if any amount in terms of revision of family pension may become admissible and payable in law for the period till her death on 27.8.2008, its payment must be made to the petitioner within six months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions, this writ application is disposed of. Kanchan (Mihir Kumar Jha, J.)