IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8227 of 2002 SATYA BHAMA DEVI wife of Late Rajendra Prasad, resident of village-Jamalpur Bigha, P.S.-Athmalgola in the District of Patna Versus 1. THE STATE OF BIHAR through Director, Secondary Education, Bihar, Patna. 2. The District Education Officer, Patna. 3. The Headmaster, S.F.S. High School, Athmalgola in the district of Patna. 4. The Accountant General, Bihar, Patna. ----------- 7 08.12.2009 Heard learned counsel appearing on behalf of the petitioner, Mr. Sunil Kumar Mandal learned Standing Counsel No.15 appearing on behalf of the State and Mr. J.P. Karn, learned counsel representing Accountant General. The petitioner is aggrieved by an order dated 1.12.1997 (Annexure-1) whereby the District Education Officer, Patna has directed the Headmaster of the High School to deduct the increments given to the husband of the petitioner late Rajendra Prasad for the period 9.6.1983 to 30.11.1991 by reason of the fact that late Rajendra Prasad did not pass the Hindi Noting and Drafting Examination. A further prayer has been made regarding refixation of pension of the late husband of the petitioner on the basis of last pay drawn - 2 - and payment of arrears for the period 30.11.1991 to 14.12.1998 arising by reason of such refixation together with refixation of family pension and payment of arrears w.e.f. 14.12.1998. Facts briefly stated are that the husband of the petitioner retired as clerk on 30.11.1991. After retirement although G.P.F. ,unutilized leave salary and Gratuity was paid to the husband of the petitioner but the pension was not fixed and he was provided only provisional pension until November, 1998 as he expired on 14.12.1998. Thereafter nothing was paid. Just before the death of the husband of the petitioner, annexure-1 was issued on 1.12.1997 under the signature of the District Education Officer, Patna addressed to the headmaster of the concerned school where the husband of the petitioner was working, requiring him to deduct the increment drawn by him during the period 9.6.1983 to 30.11.1991 i.e. the date of retirement. The reason assigned for such action was that the husband of the petitioner had earned increments during - 3 - the said period without passing the Hindi Noting and Drafting examination. Surprising no copy was endorsed to the husband of the petitioner. The petitioner by enclosing a letter of the Human Resources Department dated 30.4.1991 (Annexure-3) categorically stated that as the Hindi Noting and Drafting Examination never took place during the period in question there was no fault on the part of the husband of the petitioner in not appearing in the said examination and as such the impugned order was not sustainable. It is further submitted that the order as contained in Annexure-1 suffers from the vice of gross violation of the principle of natural justice inasmuch as neither any notice nor any hearing was granted to the deceased employee before passing of such order. He further submits that the order has been issued after lapse of six years of the retirement of the husband of the petitioner who retired on 30.11.1991 whereas the impugned order is dated 1.12.1997. It was thus contended that the impugned order is unsustainable and the recovery - 4 - effected is per se arbitrary and unreasonable and cannot be sustained and that the petitioner is fully entitled to the reliefs prayed in the writ petition. Though by order dated 11.11.2009 the state was directed to respond to the issues raised by the writ petitioner and pursuant thereto a counter affidavit has been filed on 24.11.2009, however, the counter affidavit is absolutely silent on the issues raised in the writ petition. It is indisputed that the husband of the petitioner has been paid his retiral dues towards general provident fund, gratuity and leave encashment. The only issue which remains for consideration is regarding recovery of the excess amount said to have been drawn by way of increments by the husband of the petitioner during the period 9.6.1983 to 30.11.1991, the refixation of the pension of the husband of the petitioner and the family pension of the petitioner on the basis of the last salary drawn by her husband and also payment of the arrears arising by reason of such refixation. I have heard learned counsel appearing - 5 - on behalf of the parties and considered the materials on record. The impugned action of the respondents cannot be sustained for the reasons that the statement of the petitioner that no Hindi noting and Drafting examination was held during the period 9.6.1983 to 30.11.1991 with support of the letter of the Human Resources Department dated 30.4.1991 (Annexure-3), has remained uncontroverted. As already indicated hereinabove, this Court had posed this issue before the respondents in its order dated 11.11.2009 but even the same has remained unanswered. Thus the statement of the petitioner remains unrebutted and would draw in favour of the petitioner. Even otherwise the impugned action of the respondents is patently arbitrary and unreasonable having been taken after a lapse of six years from the date of superannuation of the husband of the petitioner who retired on 30.11.1991 and the impugned order is dated 1.12.1997. The impugned order also fails the test of adherence to the principles of natural justice. Thus on either of the counts, the impugned order becomes unsustainable. - 6 - Thus for the reasons assigned above the order dated 1.12.1997(Annexure-1) is set aside. As a consequence thereof, the petitioner would be entitled for refund of the amount of increments recovered under the order dated 1.12.1997 (Annexure-1). The petitioner would also be entitled for refixation of the pension of her husband for the period 30.11.1991 to 14.12.1998 and arrears arising therefrom as well as for refixation of her family pension together with its arrears on the basis the last salary drawn by the husband of the petitioner. In the result, this writ petition is allowed and the respondent District Education Officer, Patna is directed to refund the deductions made from the retiral benefits of the husband of the petitioner pursuant to Annexure-1. The respondent District Education Officer, Patna is also directed to take all steps for refixation of the pension of the husband of the petitioner on the basis of last salary drawn and the family pension admissible to the petitioner and make payment of the arrears towards pension and family pension and the payment of current pension within a period - 7 - of three months from the date of receipt/production of a copy of this order. Needless to add that the respondent Accountant General, Bihar, Patna would issue the necessary authorization in relation to pension and family pension upon such refixation without causing unnecessary delay so that the entire exercise is carried out within the period stipulated above. Bibhash (Jyoti Saran, J.)