IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5646 of 1997 1.PRABHAWATI DEVI, W/O RAM BILAS MANJHI(DECEASED) 2.SURYA KANT PRASAD. 3.BINOD KUMAR. 4.JAGDISH KUMAR. 5.BIPIN KUMAR. 6.BIPIN KUMAR. ALL SONS OF RAM BILAS MANJHI(DECEASED), R/O MOHALLA MAHADEVA, SIWAN TOWN, P.S SIWAN TOWN, DISTRICT SIWAN. .........PETITIONERS. Versus 1.THE STATE OF BIHAR. 2.COMMISSIONER, SARAN DIVISION, SARAN, CHAPRA. 3.DISTRICT MAGISTRATE, SIWAN. 4.ESTABLISHMENT DEPUTY COLLECTOR, SIWAN, NO. 3 AND 4 UNDER P.S. SIWAN, DISTRICT SIWAN. .........RESPONDENTS. ----------- 03/ 13.05.2011 No one appears. The original Ram Bilash Manjhi petitioner had assailed the order dated 02.05.1997, whereby and whereunder on account of shifting of his date of promotion, a recovery of 57,871.70( Fifty Seven Thousand Eight Hundred Seventy one Rupees and Seventy Paise) has been directed to be made in equal installments of Rs. 2000/ per month. During the pendency of this writ application the original writ petitioner has died and has been substituted by the petitioners. From the reading of the writ application as well as the impugned order, it 2 appears that the promotion of the original petitioner was given in view of the order of the Commissioner dated 24.10.1990, as contained in Annexure-2. The commissioner had on an appeal filed by the original petitioner condoned the break in service from 01.08.1967 to 31.08.1967 and had directed for counting his service from 10.11.1961 and retaining his promotion on the post of Upper Division Clerk w.e.f 27.06.1971, as also the post of Senior Grade to him w.e.f 27.06.1971 and the post of Office Superintendent w.e.f 27.06.1984. Such order passed by the Commissioner was however, made subject matter of the writ application before this Court at the instance of Janardhan Prasad, who had assailed the order of the Commissioner dated 24.10.1990 and this Court by order dated 19.01.1995 in C.W.J.C. NO. 8322 of 1993 had quashed the order of the Commissioner of Saran Division. The impugned order in fact had been passed as a fall out of the order of this court in the aforementioned writ application. In view of the fact that when this writ application was admitted on 3 27.06.1997, and no interim order was passed for staying the operation of the impugned order, the recovery from the salary of the original petitioner @ Rs. 2000 per month till the date of his death on 03.07.1997 must have been made. If the remaining amount has also been recovered from the heirs and legal representatives of the petitioner, it would be open for the substituted petitioners to represent their case before the competent authority for refund of the amount which was recovered from the salary and/or retirement benefit of the original petitioner, inasmuch as, from reading of the impugned order as also the materials on record, it would be clear that there was no fraud or mis- representation on the part of the original petitioner and in fact he became beneficiary of such amount on account of the order passed by the commissioner of Saran Division, which was subsequently set aside by this Court in the order dated 19.01.1995. This Court, however, did not give liberty to the respondents to also make recovery from the 4 original petitioner and in fact the matter was confined with regard to the grievances of the writ petitioner Janardan Prasad as with regard to his seniority and holding the higher post of Office Superintendent in Siwan Collectorate vis-à-vis. The Original petitioner, therefore, in all fairness after the original petitioner had died leaving behind his heirs and legal representatives who are the substituted petitioners in this case, this Court must hold that the recovery of such amount from the salary and/or retirement benefits of the original petitioner was wholly illogical and therefore, this Court would give liberty to the substituted petitioners to approach the competent authority seeking refund of the amount recovered made from the salary/retirement benefits of the original petitioner and the Competent Authority must refund the amount of Rs. 57,871.70 paise or any lessor amount which may have been recovered from the salary or the retirement benefit of the original petitioner within a period of three months of receipt/production 5 of a copy of this order. With the aforementioned observation and directions this application is disposed of. Ranjan (Mihir Kumar Jha, J)