IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13918 of 2005 RAGHUPATI SHARMA son of late Ramhari Sharma resident of village-Bampur, Police Station- Nagarnausa (Chandi) District-Nalanda. Versus 1. THE STATE OF BIHAR 2. The Secretary (Primary Education) Secondary, Primary, and Adult Education Department, Government of Bihar, New Secretariat, Patna. 3. The Director(Primary Education) Secondary, Primary and Adult Education Department, New Secretariat, Patna. 4. The District Superintendent of Education, Nalanda. 5. The Accountant General, Bihar, Patna. 6. The Assistant Account Officer posted in the office of Accountant General, Bihar, Patna. ----------- 4 13.05.2010 Heard Mr. Vijay Kumar Pandey, learned counsel for the petitioner, Mr. Shashi Shekhar Sinha, learned A.C. to G.P.9 for the State and Mr. Rakesh Kumar Singh, learned counsel for the Accountant General. The petitioner has questioned the legality of the order contained in the pension intimation memo dated 25.8.2005 placed at Annexure-1 to the writ petition as also that part of the service Book placed at Annexure-1/A whereby after carrying out an exercise of refixation of pay scale with effect from 15.7.1976, the same has been scaled down and a recovery of Rs. 45,432/- has been directed by the Senior Accounts Officer, in the office of the Accountant General. 2 The petitioner was appointed as Headmaster in the Middle School, Bampur on 8.1.1961 while it was functioning under a Managing Committee. The school of the petitioner was taken over under the provisions of the Bihar Non Government Elementary School (Taking over and Control) Act 1976 (herein after referred to as the ‘Act’) with effect from 1.1.1971. The petitioner was granted the matric trained scale and subsequently B.A. trained scale with effect from 1.10.1978. The petitioner passed his Hindi Noting and Drafting Examination on 4.3.1978 and his pay scale was revised with effect from 1.4.1981 from Rs. 850/- to 1360/-. It is contended that the pay scale of the petitioner was approved by the Finance Department on 8.2.1990. It is next contended that under the implementation of the pay revision recommendations effective from 1.1.1986, the pay scales of all Government employees including the Headmasters were also revised. It is stated that following the aforesaid pay revision, the pay scale of the petitioner was revised to Rs. 2200/- to 4000/- which again was approved by the Finance 3 Department. The pay of the petitioner was again revised under the Fitment Committee Report contained in the resolution of the Finance Department report bearing memo No.660 dated 8.2.1999 with effect from 1.1.1996 but with actual payments from 1.4.1997 and was fixed in the scale of Rs. 7,500/- to 12,000/-. The said fixation of scale was again approved by the Finance Department and a copy whereof has been placed at Annexure-4 to the writ petition. Learned counsel for the petitioner submits that the petitioner superannuated on 31.12.2004 drawing the prescribed salary of Rs. 11,000/- in the scale of Rs. 7500-Rs. 12,000/- It is contended that on the basis of last salary drawn, the provisional pension was fixed at Rs. 5,488/- vide order dated 22.6.2005 (Annexure-5). Learned counsel for the petitioner submits that it is only in the course of final fixation of pension that an objection was raised by the Senior Accounts Officer, in the Office of the Accountant General, Bihar, Patna contained in letter dated 2.9.2005 enclosed at Annexure-A to the counter affidavit, which also carried a refixation of the salary of the petitioner with effect from 15.7.1988 until his 4 superannuation on 31.12.2004. In the opinion of the Senior Accounts Officer the joining of the petitioner shown as 16.1.1969 was not correct as the said school was taken over only on 15.7.1976 and thus the petitioner could only have been granted the senior scale after 12 years service beginning from 15.7.1976 and which would be 15.7.1988. Proceeding on the said opinion, an exparte refixation was carried out, the salary of the petitioner was scaled down accompanied with a conclusion that the petitioner had drawn excess salary. The Accountant General followed it up by issuing the pension intimation memo(Annexure-1) on the basis of last salary drawn of Rs. 10750/- and fixing the pension of the petitioner at a lower rate of Rs. 4,599/- per month. Learned counsel for the petitioner submits that the very premise drawn by the Senior Accounts Officer of calculation of the service period of 12 years from the date of taking over of the school in question, is completely misconceived in view of the clear stipulation of the provisions of the act under which the schools in question were taken over with effect from 1.1.1971. With reference to 5 the provisions of Section 3(1), he submits that the Act is very clear on the issue that the schools in question which was taken over under the Act would be deemed to be a Government school with effect from 1.1.1971. He thus submits that in view of the clear stipulation, the premise drawn by the Senior Accounts Officer of treating the joining of the petitioner as on 15.7.1976 being the date on which the school was taken over and ignoring the deeming effect of the Act renders the orders completely arbitrary, unsustainable and contrary to the statutory stipulations. Learned counsel for the petitioner submits that the fixation of salary having been approved by the Finance Department and which approval having not been withdrawn, the action of the authorities in processing the retiral benefits on the basis of the opinion of the Accountant General is arbitrary. He further submits that in any view the impugned action being taken in clear violation of the principles of natural justice is also not sustainable. Learned counsel for the State supports the impugned action and submits that they have proceeded on the basis of the objection raised by the Accountant General. He further submits 6 that as the service book of the petitioner was not in their possession hence the issue could not be considered. Learned counsel for the State with reference to the letters appended at Annexures- B, C and D of the counter affidavit submits that they have been repeatedly asking the petitioner to produce the service book for taking a conscious decision on the issue. Learned counsel for the petitioner in response to the said averments refers to Annexures-1/A, which is a relevant extract of the service book containing the audit objection and he submits that if the petitioner would have been in the possession of the service book, the said audit objection could not have been made on the same. He thus submits that the State is acting in an arbitrary manner to deny the justful claim to the petitioner. Learned counsel for the Accountant General supports the impugned action and submits that it was in accordance with the relevant provisions. Having considered the rival contentions of the parties, I am convinced that the very premise drawn by the Senior Accounts Officer placed at Annexure-A of the counter affidavit is 7 completely misconceived in view of the clear stipulations of Section 3 of the Act of 1976. May be the school in question was taken over under an order dated 5.7.1976 issued in the light of the provisions of the ‘Take over Act’ but in view of the fiction created under the provisions of Section 3, the school would be deemed to have been taken over with effect from 1.1.1971. There was no infirmity in the fixation of the scale of the petitioner and in which view, the conclusion drawn by the Senior Accounts Officer becomes completely unsustainable. In addition to the above, the fixation of the scale of the petitioner having received the approval of the Finance Department and which statements of the petitioner has not been controverted by the State at any stage, it did not require any interference until the opinion expressed by the Accountant General was endorsed by the Finance Department. That is not the case here. The State-respondents have simply proceeded in a mechanical manner on the basis of objection raised by the Accountant General. That the principles of natural justice was utterly violated, further supports the case of the petitioner. 8 In the circumstances, the refixation carried out by the respondent authorities on the basis of objection raised by the Accountant General cannot be upheld and is set aside. The respondents are directed to refix and recalculate the pension and pensionery entitlements of the petitioner on the basis of last salary drawn by him on the date of superannuation on 31.12.2004 and provide him with all the consequential benefits. The writ petition is allowed. Bibhash ( Jyoti Saran, J.)