IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13925 of 2002 PREMLATA DEVI, wife of late Basanti Kumar, resident of village Khagra, P.S. Naugachhia, District Bhagalpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary cum Commissioner, Human Resources Development Department, Vikash Bhawan, New Secretariat, Baily Road, Patna 3. The Director (Primary Education) cum Special Secretary, Human Resources Development Department, Vikash Bhawan, New Secretariat, Baily Road, Patna 4. The Accountant General, Bihar, Birchand Patel Path, Patna … Respondents. ----------- 3. 30.6.2010 Heard counsel for the petitioner and the counsel for the State as also for the Accountant General. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of a writ in the nature of certiorari for quashing the memo bearing No. 6/N5-015/96-100 dated 14.3.1997 contained in Annexure 3 issued by the respondent no.3 and further for issuance of a writ in the nature of mandamus directing the respondents to rectify the illegal deduction made in the pay scale of the husband of the petitioner after his retirement and to pay the difference of pay illegally deducted by the respondents and further to fix the pension of the husband of the 2 petitioner in accordance with law giving the petitioner all legal and consequential benefits including the benefits of arrear of salary, arrear of pension family pension with compound interest.” Counsel for the petitioner would submit that the husband of the petitioner was a Lecturer in Teachers Training College, Banka, who had retired from service on 31.12.1990 and yet was subjected to recovery in form of excess amount drawn by him on the head of his salary and also subjected to lowering of his pension and other retirement benefit. In this context he would also refer to a representation filed by the husband of the petitioner on 25.3.1993 wherein he had raised his grievance with regard to such recovery and re-fixation by way of lowering his retirement benefit including monthly pension. He has also invited attention of this Court towards the order dated 29.2.1996 in C.W.J.C.No. 4483/1994 to contend that the husband of the petitioner was conscious to his rights and in fact had moved this Court in time against the order of reduction of his pension and recovery of the amount from 3 him. He would, therefore, submit that once this Court had directed the authority in the order dated 29.2.1996 to pass a reasoned order on the pending representation of the husband of the petitioner, the same ought to have been disposed of at least by giving some cogent reason, inasmuch as the impugned order dated 10.3.1997 does not fulfil the test of a reasoned order. Counsel for the State would submit that this writ application has been filed after more than five years of the impugned order passed by the Director, Primary Education. He would further submit that once this fact becomes clear that the husband of the petitioner was entitled for a pay scale of Rs. 940-1660, the grant of higher pay scale of Rs. 1500-2750 or its replacement pay scale of Rs. 1600-2780 could not have been given to the husband of the petitioner. He would, therefore, submit that once the authority had come to a conclusion that the husband of the petitioner was not entitled for such pay scale of Rs. 1500-2750 and/or 1600-2780 the only logical out come to reject the claim of the husband of the 4 petitioner in the light of the objection of the Accountant General recommending reduction of the pay scale of the husband of the petitioner by causing also recovery of excess amount paid to him. It is true that the writ application is belated but then taking into consideration that it is the widow petitioner who has to pursue this writ application after the death of her husband, who is said to have died on 13.10.2001 after remaining confined to bed for a long period of time, this Court would condone the delay in filing of this writ application. There can be no two proposition in law that the payment of salary to a Government servant can only be made in the prescribed pay scale to which he is entitled. There is nothing on record to show that the husband of the petitioner was entitled for grant of pay scale of Rs. 1500- 2750 or replacement pay scale of Rs. 1600- 2780. The impugned order dated 10.3.1997 is also equally vague and in fact self contradictory in its own forms as would be apparent from the following extracted 5 portion of the same reading as follows: Þ4- oknksa ds vH;kosnu esa vafdr fd;k x;k gS fd funs'kd izkFkfed f'k{kk ds Kkikad 391 fnukad 7-8-91 ds vuqlkj mUgsa fnukad 4-12-89 ls :i;k 940&1669@& esa izFke dkyc) izksUufr nh xbZA 5- oknks ds }kjk ;g Hkh dgk x;k fd os :i;k 1500&2750@& ds osrueku esa lsok fuo`fRr ds le; 2390¾00 :I;k osru izkIr dj jgs Fks tcfd mudk osru fu/kkZj.k la'kksf/kr osrueku 1600&2780@& ds vk/kkj ij fd;k x;k ftlds QyLo:i osru fu/kkZj.k esa mUgsa ,d osru o`f) dk ?kkVk gqvk A 6- bl Øe esa foRr foHkkx }kjk fuxZr ladYi la[;k 6021 ¼fo0½¼2½ fnukad 18-12-89 dk voyksdu fd;k x;k A blds }kjk voj f'k{kk lsok ds csfld xzsM i= ¼viqujhf{kr osrueku :i;k 850&1360@&½ ds fy, :i;k 1500&2750@& dk fjIysalesaV osrueku 1-1-1986 ds izHkko ls Lohd`r djus dk fu.kZ; fy;k x;k FkkA 7- ckn esa foRr foHkkx ds ladYi la[;k 4439 ¼fo0½ fnukad 25-8-90 ds }kjk :i;k 1500&2750@& ds osrueku dks la'kksf/kr djrs gq, 1-1- 1986 ds izHkko ls :i;k 1600&2780@& osrueku Lohd`r fd;k x;k A 8- vr% ;g Li"V gS fd :i;k 1500&2750 dk osrueku izHkko esa ugha gSA blfy, bl vk/kkj ij oknh }kjk fd;k x;k nkok ekU; ugha gS of.kZr ifjfLFkfr esa oknksa ds vH;kosnu dks vLohd`r fd;k tkrk gSAÞ Now if the husband of the petitioner was drawing his salary in the prerevised pay scale of Rs. 850-1360 i.e. in the basic pay scale of Subordinate Education Service which was revised to Rs. 1500-2750 on 18.12.1989 w.e.f. 1.1.1986 and later on replaced by Rs. 1600-2780 how could his fixation of pay be reduced to his disadvantage after his retirement at the time of giving benefit of his first time bound promotion w.e.f. 4.12.1989. The things get further complicated in absence of a counter affidavit inasmuch as there is no answer much less any explanation to the following averments in 6 paragraphs no. 6 to 11 reading as follows: “6. That thereafter petitioner’s husband was posted as Headmaster, Basic School, Haweli Kharagpur, District Munger and his salary was fixed in the scale of 415-15-565- EB-20-745. 7. That by virtue of recommendation of 4th pay Revision Committee the scale of the petitioner’s husband was fixed in 850-30-1270-EB-30-1360. 8. That again when the recommendations of the 4th Pay Revision Committee was enforced then vide memo no. 6021/F-D. dated 18.12.1989, the petitioner’s husband’s pay scale was fixed in the pay scale of Rs. 1500-50-2150- 60-2750 which scale was again changed vide Finance Department Memo No. 4439 dated 25.8.1990 and was fixed in the pay scale of Rs. 1600-50-2300-60-2780 and the husband of the petitioner retired on 31st December, 1990 in the afternoon and was drawing his salary of Rs. 2390, it was last. It is the last pay scale of the petitioner’s husband at the time of his retirement. 9. That it is stated that the husband of the petitioner was not given the benefit of First Time 7 Bound promotion and therefore he made representation before the respondent no.2 to grant him the benefit of first time bound promotion in appropriate pay scale and fix his pension accordingly. 10. That after the retirement of the petitioner’s husband the first time bound promotion was given to the petitioner’s husband but his pay scale on the post on which he was working was arbitrarily redufed from Rs. 2330/- to Rs. 2300/- with effect from 1.1.1986 and thereafter as he was given benefit of the first time bound promotion in spite of giving enhance pay scale to the petitioner’s husband a letter has been issued in this context by which the respondents have reduced Rs. 20/- per month from 1.3.1989 to 3.12.1989 and Rs. 30/- per month from 4.12.1989 to 31.12.1990 in a very arbitrarily manner. It is further stated that prior to reduction the pay scale of husband of the petitioner he was not given any opportunity of show cause. 11. That due to the aforesaid illegal and arbitrary deduction done in the pay scale drawn by the petitioner’s husband at the time of retirement, after his retirement the petitioner’s husband’s pension was fixed in the reduced scale of 8 pay.” Unfortunately the impugned order also does not answer the aforesaid plea of the husband of the petitioner which were also raised in a very clear manner in his representation dated 25.3.1993 (Annexure 1 to this writ application) which has been disposed by the impugned order. Thus the decision of the respondents or the consequential order passed by the Director on 10.3.1997 so far it relates to re-fixation of pay of the husband of the petitioner in absence of cogent reasons cannot be sustained specially when it is also clear the impugned order of the Director, Primary Education, that there was no misrepresentation or fraud on the part of the husband of the petitioner in claiming payment of salary in the higher pay scale of Rs. 1500-2750 or its replacement pay scale of Rs. 1600-2780. Therefore, after the husband of the petitioner had retired on 31.12.1990 the respondents could have reduced the pay scale for the purposes of fixation of pensionary and other benefits in the light of his admitted entitlement but 9 they could not have made any recovery of the alleged excess salary drawn by the husband of the petitioner. From the representation filed by the husband of the petitioner, Annexure 1, it appears that he had been subjected to recovery of alleged excess amount paid to him from the salary bills and monthly pension. This Court would not approve such action inasmuch as it has to be held such recovery of excess amount from the husband of the petitioner and consequential benefit of the petitioner was impermissible. Reference in this connection may be made to the judgment of the Apex Court in the case of Syed Abdul Qadir & ors. vs. the State of Bihar & ors., reported in (2009)3 SCC 475. That being so, this Court would allow this writ application by quashing the impugned order dated 14.3.1997 and remit the matter back to the respondent Director, Secondary Education to pass a fresh order as with regard to correct pay fixation of the husband of the petitioner and for refund of recovered amount already made from the pay pension and/or other retirement benefit of the husband of the petitioner to the 10 petitioner within a period of six months of the date of receipt/ production of this order. It is, however, made clear that the calculation and payment of all retirement benefit of the husband of the petitioner would be only made as per entitled pay scale in terms of the fresh order to be passed by the Director. It also goers without saying that the fixation of family pension also would be made on the basis of entitled last pay of the husband of the petitioner and not on the basis of any higher pay, which he may have been drawing at the time of his retirement. The writ application, therefore, is allowed to the extent indicated above and the respondent no.3 is directed to reconsider the whole matter afresh in the light of observations and directions in this order and also pass an order for refund of the amount of recovery already made from the pay and pensionary benefit of the husband of the petitioner to the petitioner within a period of six months from the date of receipt/ production of a copy of this order. (Mihir Kumar Jha,J.) Surendra/ 11