IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2203 of 2006 RAM CHARITRA RAM Versus THE STATE OF BIHAR & ORS ----------- 8. 29.4.2010. Heard Mr. Jagdish Prasad, learned Counsel for the petitioner, Mr. N.K.Sinha, learned AAG-10 for the State and Mr. L.P.K.Rajgrihar representing the Accountant General. The petitioner is aggrieved by the order bearing memo no.1949 dated 23.9.2005 as contained in Annexure-1, whereby the Treasury Officer has been directed for recovery of an amount of Rs.4,37,797/- said to be the increments earned by the petitioner and which was sought to be recovered on grounds that the petitioner being the Head Master of the Girl School had failed to pass the Hindi Noting and Drafting Examination. With the consent of the learned counsel for the parties, this matter has been taken up for disposal at the stage of admission itself. Learned counsel for the petitioner, with reference to the Hindi Examination Rules, 1968 appended at Annexure-B of the counter affidavit, more particularly to the stipulation present at para-2 thereof, submits that such of the employees who had passed any such Hindi 2 examination conducted by the state having equivalent standard to that of matriculation, were not required to pass the Hindi Noting and Drafting Examination, as envisaged under the Hindi Examination Rules, 1968 (hereinafter referred to as the Rules). Learned counsel for the petitioner next submits that the petitioner was appointed as Assistant Teacher vide memo no.193 dated 22.7.1968 and was granted Matric Trained scale vide memo no.1198 dated 24.3.1976. The petitioner was promoted to the post of Head Master vide memo no.6040 dated 10.9.1985 by the District Superintendent of Education, East Champaran and was transferred and posted at the Middle School, Manglapur within Areraj Block where he gave his joining on 11.9.1985. The petitioner was granted Graduate Trained scale vide memo no.6022 dated 18.12.1989 and was allowed to cross the efficiency bar with effect from 15.12.1991. The petitioner superannuated with effect from 31.12.2003 while posted at Middle School, Barvan Pakri within Chakia Block of East Champaran. It is after his superannuation and during the process of finalization of his pension that the 3 impugned order as contained in letter dated 1949 dated 23.9.2005 came to be issued under the signature of the respondent District Superintendent of Education, East Champaran directing the Treasury Officer for effecting recovery of Rs.4,37,797/- being the increment earned by the petitioner, on grounds of not passing the Hindi Noting and Drafting Examination. Learned counsel for the petitioner submits that the said recovery is in the teeth of the stipulation present at para-2 of the Rules for the reason that the petitioner having already passed the matriculation examination with Hindi was not required to appear in any such examination. He further submits that the order is also not sustainable as having been issued in utter violation of the principles of natural justice as no show cause notice or hearing was afforded to the petitioner prior to the passing of the impugned order. He further submits that the petitioner having superannuated on 31.12.2003, the impugned order being issued almost two years thereafter, is an arbitrary act of respondents. Learned counsel, in continuation 4 of arguments, submitted that the effect of the recovery was withdrawal of the increments earned by the petitioner and which is a minor penalty under the provision of Civil Services (C.C.A) Rules, 1930 and requires a proceeding as per the provision of Rule 55A read with the Rule 43(b) of the Bihar pension Rules. It was next submitted that the respondents having failed to initiate any such proceedings, the impugned order, also cannot be sustained on that ground. Mr. N.K.Sinha, learnedA.A.G.10, relied upon the Circular of the Special Secretary bearing no.1846 dated 25.5.1977 taken note of in letter dated 1.9.1993 (Annexure-C), which provided that though the teachers of elementary school were not required to pass the said Examination but if such teachers were posted in Middle school as Headmaster, then they were required to pass the examination within one year, failing which the increment could be withheld but this effect would not be cumulative. He submits that the said circular was followed by another instructions present at memo no.1834 dated 13.11.1987 and which provided that as the teachers of elementary/middle schools were not 5 required to engage themselves in preparing drafts etc, hence they were not required to appear in the said examination but no sooner they are promoted as Headmaster then in such cases, passing of the examination would become necessary. He further submitted that the circulars were very clear on the issue and so long the petitioner was Assistant Teacher, he was not required to pass the said examination having passed the examination in Hindi but after his promotion as Headmaster of the Middle School on 10.9.1985, the petitioner was required to pass the said examination in terms of the Rules and circulars governing the issue. He further submits that there was no infirmity in the order passed by the authorities intending recovery for the reasons that admittedly the petitioner had not passed the Examination. There is another circular which has been annexed as Annexure-C to the counter affidavit bearing memo no.2394 dated 1.9.1993 which is in the line of the earlier circular. Paragraph-2(2) of the said circular provides as under: foHkkxh; vkns”kkad 12@o8&0179@88+ 83 fnukad 25-2-89 n~okjk jktdh;d`r ek/;fed fon~;ky;ksa ds iz/kkuk/;kidksa ds fy, fgUnh fVIi.k ,oa izk:i.k ijh{kk dh mRrh.krk vfuok;Z dh x;h gSA jktdh; ek/;fed 6 fon~;ky;ksads iz/kkuk/;kidksa ds leku jktdh;d`r e/; fon~;ky; ds iz/kkuk/;kidksa dks Hkh ;g ijh{kk mRrh.kZ djuk vufok;Z gS A A perusal of the stipulation present at para-2(2) of the circular dated 1.9.1993, in no uncertain terms manifests that the issue of whether or not the Headmasters were required to pass the Hindi Noting and Drafting Examination, was clarified only under the departmental order dated 25.2.1989 whereby it was specially held that the Headmasters of the Middle Schools would have to pass the Hindi Noting and Drafting Examination. Admittedly, the petitioner was promoted to the post of Headmaster in the year 1985 and the Rules clarifying the issue making it compulsory for the Headmasters to appear in the Examination was introduced only on 25.2.1989. The petitioner obviously having passed the Matriculation examination with Hindi was not required to pass the said Examination in terms of the Hindi Examination Rules 1968. The contention of the petitioner of having passed the matriculation examination with Hindi has not been controverted by the respondents. The petitioner thus having been promoted to the post of Headmaster prior to 25.2.1989, was 7 not covered by the stipulations of the circular nor the circular was made retroactive making it compulsory for even such of the Headmasters who were appointed prior to the said date, to pass the said examination. In the circumstances, I am of the opinion that the petitioner having been promoted to the post of Headmaster in 1985, was not covered by the circular dated 25.2.1989 and thus was not required to pass the examination. The order of recovery contained in Annexure-1 is arbitrary and can not be upheld either on merits or on the touchstone of violation of the principles of natural justice and is set aside. The respondents are directed to refund the amount recovered from the petitioner within a period of three months from the date of receipt/production of a copy of this order. Needles to add that the other retiral benefits of the petitioner if already not paid shall also be paid within the period stipulated above. The writ petition is allowed with the directions aforesaid. ahk (Jyoti Saran, J.) 8