IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3421 of 2004 ALI AHMAD, son of Late Hadi Raza, resident of village – Sarfuddinpur, P.S. Bihta, District – Patna. Versus 1. THE STATE OF BIHAR. 2. The Commissioner and Secretary, Building Construction Department, Govt. of Bihar, Patna. 3. The Engineer-in-Chief cum Chief Engineer, Design Circle, Building Construction Department, Govt. of Bihar, Patna. 4. The Chief Engineer Design, Building Construction Department, Govt. of Bihar, Patna. 5. The Superintending Engineer Design Circle No.1, Building Construction Department, Govt. of Bihar, Patna. 6. The Accountant General, Bihar & Jharkhand, Birchand Patel Path, Patna. ----------- 04. 16.7.2010 The original petitioner died during the pendency of the writ application. An I.A. namely, I.A. No. 2880 of 2005 has been filed by the widow for her substitution in place of her husband. Let Most. Shakila Khatoon be substituted in place of the petitioner who died on 27.2.2005. The husband of the petitioner was Upper Division Assistant working in the office of the Superintending Engineer, Design Circle No.1, Building Construction Department, Govt. of Bihar, Patna. He worked on that post till his age of superannuation which was 30th June, 1999. Case of the petitioner is that at the fag end of service he was struck by paralysis and was confined to bed, which prevented him from shouldering his responsibility and attending to office. His prolonged illness compelled him to seek all kinds of leave available to him. With due fairness it must be recorded that the State did try to accommodate him by granting leave due and which could be granted under the rules. However, due to the inability of the petitioner to report 2 to work even after the extra-ordinary leave having been sanctioned to him, some problem arose with regard to the period 1st March, 1999 to 30th June, 1999. Petitioner approached the respondents, stated the position and made a request not to take a hyper technical view of his inability to report back before he could be given leave even for the balance period till his superannuation. Matter was considered at the appropriate level and salary was authorized. Petitioner retired but the issue did not rest at that. Somebody raised an issue that authorization of salary in favour of the husband of the present petitioner for the last four months would be in violation of Rule 232 of the Bihar Service Code. He ought to have joined duty or submitted his medical fitness. Sanction for payment of salary was sought to be undone and taken away by an office order dated 3rd of February, 2001 ( Annexure-13 to I.A. No. 4198 of 2004). The husband of the petitioner filed the present writ application challenging the said decision. During the pendency of the writ application he has passed away and now his wife is pursuing the matter. It is not disputed that respondent authorities have considered the request of the petitioner taking the humanitarian consideration of the entirety of the facts. Husband of the petitioner had very categorically made a request to accommodate him in the given circumstances that he was unable to move or to report back to duty for a long period of time and there was some leave due in his account. The only reason why authorities decided to take back the benefit of salary authorized in his favour is technicality of service rule which 3 has been quoted in the counter affidavit. It is not that the erstwhile petitioner had not pointed out this aspect of the matter of his inability to report to duty because of his physical condition before retirement. The State authorities had taken a holistic view of the whole issue and authorized payment of salary for the last four months. Once it is authorized and released in favour of the employee, a subsequent action of taking it away and that too without offering him an opportunity or considering this aspect of the matter that authorization was granted on due deliberation on a special circumstance giving the physical condition of the husband of the petitioner in the fag end of his life. Even otherwise the employee is no more. Widow is at advance stage of her life who herself is ailing as has been stated in the writ application. It will be too harsh to allow recovery in terms of annexure-13. The writ application is allowed. Annexure-13 is quashed. If any recovery has been made pursuant to the said order, the same shall be refunded. If no recovery has been made, it shall not be made. rkp ( Ajay Kumar Tripathi, J.)