IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4058 of 2005 SHRI HEMENDRA PRASAD SINHA son of late Bindeshwari Lal resident of village-Ushrahia, P.O. Old Rebasi, New Shankar, P.S. Riga, District-Sitamarhi (at present retired Headmaster, Government Middle School, Purnahia, P.S. Bathaha, District-Sitamarhi, Bihar) Versus 1. THE STATE OF BIHAR 2. The Director, Primary Education, Bihar, Patna. 3. The District Superintendent of Education, District-Sitamarhi. 4. The Headmaster, Government Middle School, Purnahia, District-Sitamarhi. 5. The Accountant General, Bihar, Patna. 6. The Senior Accounts Officer, Office of the Accountant General, Bihar, Patna. 7. The Assistant Account Officer, Office of the Accountant General, Bihar, Patna. 8. The Treasury Officer, District-Sitamarhi. 9. The District Account Officer, Sitamarhi, Department of Finance ----------- 14 07.01.2010 Heard Mr. Rajendra Lal Das learned counsel appearing on behalf of the petitioner, Mr. Himanshu Kumar learned A.C. to G.A. 5 for the State and Mr. L.P.K. Rajgrihar learned counsel appearing on behalf of the Accountant General. The writ petitioner has challenged the orders issued by the Accountant General as contained in Annexure 1 and 1/1. He also challenges the recovery order dated 5.9.2003 (Annexure-2) passed by the respondent No.3, the 2 District Superintendent of Education, Sitamarhi and the order dated 30.12.2004 passed by the said authority rejecting the representation filed by the petitioner in the light of the liberty granted by the Court as contained in Anneure-4 Learned counsel for the petitioner contends that the fixation of his scale was considered by the District Superintendent of Education, Sitamarhi and had the approval of the Finance Department. He submits that it is after his retirement on 31.7.2003 when his pension papers were forwarded for authorization by the Accountant General that certain infirmities were allegedly pointed out in the pay fixation and the matter was remitted back to the authorities of the State Government in its Education Department for reconsideration thereof and who came to a conclusion that the pay fixation of the petitioner had not been correctly done. Learned counsel appearing on behalf of the petitioner with reference to a circular of the State Government placed at Annexure-7 of the writ petition dated 4.9.1980 submits that the pay fixation of the petitioner was done in 3 the light of the stipulations made in the said circular and there was no infirmity in the same. It is submitted that the same having formal endorsement of the competent authorities being the District Superintendent of Education and also seal of approval by the Finance Department the subsequent revision of his pay scale was not correct. Learned counsel for the petitioner thus submits that in view of the aforesaid position supported by the fact that there was no role on the part of the petitioner in the pay fixation exercise nor the petitioner had been charged with obtaining the same by representing or misrepresenting, the impugned order was unsustainable. It is submitted that the correctness or otherwise of the pay fixation is on the basis of the interpretation given to the clauses of the circular dated 4.9.1980 as contained in Annexure-7 and it is in view of the stipulations made therein that the pay fixation had earlier been carried out and which was duly recommended by the District Superintendent of Education and also approved by the Finance Department. The petitioner continued to draw the salary on the basis of 4 the said pay fixation till his retirement. It is thus submitted that there was no occasion for the recovery of the said amount, moreso after his retirement. Learned counsel appearing on behalf of the Accountant General with reference to the statement made in the counter affidavit filed on 13.4.2005 and the supplementary counter affidavit filed subsequently on 16.11.2009 submits that the pay fixation of this petitioner was tested in the backdrop of the circular dated 4.9.1980 (Annexure-7) and upon consideration of the stipulations made therein the correct position has been set out in the chart placed at Annexure-A of the supplementary counter affidavit and whereby each stage of the scales to which the petitioner was entitled has been explained. It is submitted that the last pay scale on which the petitioner should have retired was Rs. 12500/- but due to incorrect pay fixation he was drawing salary at the scale of Rs. 12750/- and which was not in accordance with the stipulations. It is contended that it is in this background, that necessary directions have been issued to the authorities of the State Government in its Education 5 department for making recovery of the excess amount paid to the petitioner which was calculated to the tune of Rs. 88567/-. Learned counsel for the State submits that the matter was re-examined in the light of the objections raised by the Accountant General and it was found that there were infirmities in the pay fixation of the petitioner and which was subsequently corrected and it was also found that the petitioner had drawn excess amount by reason of incorrect pay fixation. Having given anxious consideration to the rival contention of the parties and upon perusal of materials on record, I am of the opinion that no doubt the petitioner being the Headmaster of the school was also the drawing and disbursing authority who had drawn/fixed the pay scale in question for himself. In fact the impression of the petitioner that he was entitled to that particular pay scale can not be doubted because the same was found correct and also recommended by the District Superintendent of Education and was also approved by the Finance Department. In fact it is in this background that the petitioner continued to draw his salary on the said scale 6 until his retirement. It is only after his retirement that the authorities of the State Government came to a conclusion that the pay fixation had not been carried out correctly and that also after receipt of an objection raised by the office of the Accountant General. The very fact that the pay fixation had the approval of the competent authorities i.e. the District Superintendent of Education and the Finance Department, the petitioner alone cannot be held responsible for the incorrect pay fixation. In the said situation the undertaking given by the petitioner cannot act as a estoppel to his right to question the impugned action. The order of recovery from the retiral benefits of the petitioners is also not sustainable for the unreasonable delay in enforcing the same. The rectification of the error in the pay fixation by the department in the light of the objections of the Accountant General would operate prospectively. In the circumstances the impugned order of recovery as contained in Annexure-2 is set aside and the authorities are directed to refund the amount of Rs. 88,567/- which has been deducted from the salary of the petitioner 7 within a period of three months from the date of receipt/production of a copy of this order. The writ petition is allowed with the directions aforesaid. Bibhash (Jyoti Saran, J. )