IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9287 of 2006 AARTI SARKAR, wife of Sri Alok Kumar Sarkar resident of Puranendu Apartment, Flat No. 201 Bhikhna Pahari, P. S. Sultanganj, District- Patna. ….. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Department of Health, New Secretariat, Patna. 3. The Director-in-Chief, Health Services, New Secretariat, Patna. 4. the Superintendent, Guru Govind Singh Hospital Patna City, Patna. .. Respondents. ----------- 3. 20.08.2010 Heard counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ petition reads as follows;- “1. That this petition is being filed with a prayer for quashing of the order contained in Memo No. 645 dated 23.6.2006 issued under the signature of respondent Superintendent whereby and whereunder an amount of Rs.281484.00 was recoverable from the petitioner and accordingly it was ordered to recover Rs.4691 from the salary of the petitioner.” Mr. Sanjeev Kumar Mishra, learned counsel for the petitioner as with regard to the aforementioned relief would submit that when the Health Department itself had issued Circular in the year 1970 and 1972 laying down that passing of Hindi Noting and Drafting Examination in terms of 1968 Rules was not required for the post of 2 Auxiliary Nurses and Midwife (A.N.M.) and other similar posts having no concern with the job of placing note or preparing draft i.e. the file work, it would be wholly incorrect on the part of the respondent to have resorted to recover a huge amount of 2.81 lakhs approximately from a lowly paid employee like the petitioner by subjecting her to monthly recovery of Rs.4691 per month specially when she had not played any fraud or made any misrepresentation for getting her annual increment from year to year. In this context, he would also submit that the very fact that the Director in Chief of the Health Services had decided to nullify the circular of 1970 and 1972 by circulating a circular on 5.5.2005 would by itself be an evidence of the fact that every one in the Health Department had a reason to believe and in fact had also acted upon such belief that A.N.Ms. were not required to pass Hindi and Noting Drafting Examination. Counsel for the State in absence of the counter affidavit filed by him would take a plain and simple plea that if there was a Rule framed under the proviso to Article 309 of the Constitution, any government circular running 3 contrary to the statutory rules will have to give away as it is well settled that executive instruction cannot supplant the statutory rules. In the opinion of this Court, the issue is not so simple. The 1968 Rules itself envisaged certain relaxation or clarification. This Court is not aware as to whether 1970 and 1972 Circulars of the Health Department were issued in the prescribed manner i.e. in consultation with the Rajbhasha Department and whether such circular were the conscious decision of the State Government as per Rules of Executive Business but then if the authority in the Health Department had themselves all along treated the post of A.N.Ms. immune from passing the Hindi and Noting Drafting Examination from 1970 onwards the subsequent audit objection being made in the year 1998 or thereafter to this effect could not have allowed the respondents to also make recovery of the amount of increments and its consequential benefit already given to the petitioner and other A.N.Ms. on year to year basis despite her not passing the Hindi and Noting Drafting Examination. This Court recently had the occasion to notice all these aspects in its order dated 13.8.2010 passed 4 in CWJC No.6766 of 2006 and its analogous cases and therefore following the same conclusion this Court would remit the matter back to the Director in Chief to examine the case of the petitioner and would take a conscious decision as to whether the petitioner would be liable to refund the amount of annual increment given to her from year to year despite not passing Hindi and Noting Drafting Examination till 4.5.2005. Till such a decision is taken, the interim order passed in this case on 15.11.2006 restraining the respondents from making any recovery from the petitioner would continue. It is made clear that the petitioner has not passed the Hindi and Noting Drafting Examination even after the clarifactory circular issued by the Director-in-Chief on 5.5.2005 and as such she will not be entitled to get any benefit of increment from May 2005 onwards till she would pass the prescribed Hindi and Noting Drafting Examination. Thus in the case of the petitioner it is only the issue of recovery which is being remitted back to the competent authority inasmuch as there is no doubt that the petitioner after 5.5.2005 is required to pass Hindi and Noting Drafting Examination which itself becomes also 5 admitted from the conduct of the petitioner who had appeared in the said Hindi and Noting Drafting Examination and had only partly cleared the same. Be that as it may, this Court would remit this matter back to the Director-in-Chief in the same terms and conditions as in the order dated 13.8.2010 passed in CWJC No.6766 of 2006. With the aforesaid observation and directions, this writ application is disposed of. kanchan/- (Mihir Kumar Jha, J.)