IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15168 of 2008 PREMA DEVI WIFE OF LATE RAMJANAM SINGH, RESIDENT OF VILLAGE – DEHRI, P.O. – TARANAGAR, P.S. BIHTA , DISTRICT PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF WATER RESOURCES, GOVERNMENT OF BIHAR, PATNA. 2. THE ENGINEER-IN-CHIEF, DEPARTMENT OF WATER RESOURCES, GOVERNMENT OF BIHAR, PATNA. 3. THE CHIEF ENGINEER, DEPARTMENT OF WATER RESOURCES, GOVERNMENT OF BIHAR, PATNA. 4. THE EXECUTIVE ENGINEER, SONE CANAL DIVISION, KHAGAUL, DISTRICT – PATNA. 5. THE ACCOUNTANT GENERAL, BIHAR, PATNA. ----------- 13. 05.04.2010 Heard learned counsel for the petitioner, State as also the Accountant General. The prayer of the petitioner is for releasing the full sanctioned Leave encashment amount of the husband of the petitioner who died in harness on 19th of January 2008 while working as Revenue Clerk under the respondent no. 4. It is submitted that a sum of Rs. 127890/- was sanctioned against leave encashment, however, from the said amount a sum of Rs. 1,15, 187/-was adjusted allegedly on the ground that husband of the petitioner was granted second time bond promotion which was later found not in order vide letter no. 1261 dated 13th of June 2008 (Annexure-1) issued in favour of the Accountant General with a copy to the petitioner. Learned counsel for the petitioner further submits that till death of her husband i.e 19th of January 2008, he was never communicated with any order withdrawing the only granting second time bound promotion or the proposed recovery of the amount paid to her husband allegedly in excess. Therefore adjustment of amount in question said to be the excess payment salary is not justified in law. Accordingly, the prayer has been made for quashing the part of the aforesaid order adjusting the aforesaid amount of Rs. 1,15,187/- as per Annexure-1. Learned counsel for the State, on the other hand, submits that while sanctioning and communicating the order granting second time bound promotion as per Memo no. 26 dated 05.01.2000 as contained in Annexure- A to the counter affidavit of respondent nos. 1 to 4 it was mentioned to the effect that during the course of confirmation of promotion, if it is found that the husband of the petitioner was not entitled for the same, the amount paid to him will be liable to be recovered. It is further submitted later it was found that the aforesaid grant of second time bound promotion was not correct as evident on perusal of the letter no. 1185 dated 28th of June 2007 written by the Joint Secretary, Water Resources Development Department, Government of Bihar to the Chief Engineer respondent no. 3 followed by the office order issued on 29th February 2008 as contained in Annexure- C series although issued after the death of the concerned employee. As such the excess amount paid on account of such promotion was adjusted from the amount of leave encashment, therefore, the action of the Respondent State is legal and valid. Learned counsel for the Accountant General submits that the necessary authorization for payment of the leave encashment was issued for the balance amount of Rs. 12,703/- on receipt of the order as contained in Annexure-1. Considering the submission of the parties, and their pleading, it appears that the husband of the petitioner was allowed second time bound promotion as per memo no. 26 dated 05.01.2000 as contained in Annexure- A whereby the Accountant General was communicated the above decision with regard to the grant of second time bound promotion with effect from 04.04.1995. In the said communication, it was mentioned that in course of confirmation by the Department of Finance, if it is found that the grant of second time bound promotion is found not in order excess payment due to such promotion would be recovered. However, there is nothing on the record to show that any communication withdrawing the aforesaid promotion was made to the husband of the petitioner much or any communication proposing to withdraw the aforesaid grant of second time bound promotion. The submission on behalf of the State that aforementioned letter no. 1185 dated 28th of June 2007 as contained in Annexure – C was communicated to the husband of the petitioner is not substantiated by any material on record or even the copy of the said letter was forwarded to the husband of the petitioner, though, the follow up action by issuance of the office order no. 510 dated 29th of February 2008 was taken by sending the copy of the letter to the other authorities including late deceased employee as per the aforesaid letter. The said office order was issued after the death of the concerned employee since he died on 19th January, 2008. Upon considering the facts and circumstances of the case and in light of the discussions made above, respondent no. 4 is hereby directed to release the adjusted amount from the sanctioned amount of leave encashment of Rs. 1,15,187/- to the petitioner preferably within a period of three mopnths on receipt/production of certified copy of the present order. Consequently the impugned order contained in Memo No. 1261 dated 13th of June 2008 (Annexure-1) whereby the aforesaid sum of Rs. 1,15,187/- is adjusted from the sanctioned amount of Rs. 1,27,890/- is quashed to this extent. The writ application stands allowed. No cost. Jagdish (Shailesh Kumar Sinha,J.)