IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6766 of 2006 PUNAM SINHA, W/o Shri Raghuvendra Narain Singh, resident of village Ramban, P.O. Phulkaha, P.S. Shyampur Bhatanha, District Sheohar, at present posted as A.N.M., Majorganj Prakhand, District Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. Secretary to the Government, Deptt. Of Health, Bihar, Patna 3. Addl. Secretary to the Government, Deptt. Of Medical Education and Family Planning, Bihar, Patna 4. Incharge Medical Officer, Primary Health Centre, Majorganj, District Sitamarhi … Respondents 1st party 5. Under Secretary, Deptt. Of Medical Education and Family Planning, Bihar, Patna 6. Civil Surgeon cum Chief Medical Officer, Sitamarhi … Respondents 2nd party with CWJC No.6748 of 2006 SHAIL DEVI, W/o Rajendra Prasad Sah, resident of Riga Road, Nayatola, Ward No.1, P.O., P.S. & Distt. Sitamarhi at present posted as Mahila Swastha Karyakarta (A.N.M.), Majorganj Prakhand, Distt. Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. Secretary to the Government, Deptt. Of Health, Bihar, Patna 3. Under Secretary to the Government, Deptt. Of Medical Education and Family Planning, Bihar, Patna 4. Incharge Medical Officer, Primary Health Centre, Majorganj, District Sitamarhi … Respondents 1st party 5. Under Secretary, Deptt. Of Medical Education and Family Planning, Bihar, Patna 6. Civil Surgeon cum Chief Medical Officer, Sitamarhi … Respondents 2nd party with CWJC No.6767 of 2006 MIRA KUMARI, W/o Shri Parmeshwar Choudhary, resident of Chauraut Lodge, at present posted as Mahila Swastha Karyakarta (A.N.M.), Majorganj Prakhand, Distt. Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2 2. Secretary to the Government, Deptt. Of Health, Bihar, Patna 3. Under Secretary to the Government, Deptt. Of Medical Education and Family Planning, Bihar, Patna 4. Incharge Medical Officer, Primary Health Centre, Majorganj, District Sitamarhi … Respondents 1st party 5. Under Secretary, Deptt. Of Medical Education and Family Planning, Bihar, Patna 6. Civil Surgeon cum Chief Medical Officer, Sitamarhi … Respondents 2nd party with CWJC No.7446 of 2006 KIRAN KUMARI, W/o Shri Tarkeshwar Prasad Verma, resident of village Japharpur, P.S. Belsand, Distt. Sitamarhi, at present posted as A.N.M., Majorganj Prakhand, Distt. Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. Secretary to the Government, Deptt. of Health, Bihar, Patna 3. Addl. Secretary to the Government, Deptt. Of Medical Education and Family Planning, Bihar, Patna 4. Incharge Medical Officer, Primary Health Centre, Majorganj, District Sitamarhi … Respondents 1st party 5. Under Secretary, Deptt. Of Medical Education and Family Planning, Bihar, Patna 6. Civil Surgeon cum Chief Medical Officer, Sitamarhi … Respondents 2nd party ----------- 3. 13.8.2010 All these four writ applications involve a common question, namely, whether the petitioners, holding the post of Auxiliary Nurse and Mid-wife (A.N.M.), were required to pass Hindi Noting and Drafting Examination within one year of their appointment so as to give benefit in the matter of grant of increment, confirmation 3 and crossing the efficiency bar. The common prayer of the petitioners in all these four writ applications reads as follows: “(i) An appropriate writ, order or direction quashing the letter dated 10.4.2006 as contained in Annexure 4 issued by the respondents 3 and 4 be issued. (ii) An appropriate writ, order or direction commanding the respondents to forebear from taking any step for recovery of any amount from the petitioner‟s salary, be issued.” Mr. Yogendra Mishra, learned counsel appearing on behalf of the petitioners in all the four cases, has submitted that true it is that a Rule under Proviso to Article 309 of the Constitution, namely, Bihar Sarkari Sewak (Hindi Priksha Nayamawali, 1968 was made operative by Notification No. 361 dated 15.6.1968 which made it mandatory for every Government servant to pass such Hindi Noting and Drafting Examination within one year of their appointment, failing which they could be subjected to withholding and/or their annual stoppage of increment/ confirmation 4 and/or crossing efficiency bar but then the same Rule itself envisaged its applicability only in respect of such Government servants who had perform job and work of putting notes and/or preparing drafts while doing the file work. It is in this context that a categorical stand by way of submission had been made that since the job of A.N.M. nowhere even remotely was related to putting of notes and preparation of drafts, the competent authority of the Health Department, namely, the Assistant Director, Health Services vide his letter no. 670 dated 20.9.1970 and the Deputy Director of Health, Bihar, Patna by her letter no. 367 dated 29.2.1972 had made it clear that barring the post of Accountant and the Correspondence Clerk in Health Department no other employee of the Health Department posted at the block level was required to pass Hindi Noting and Drafting Examination. Mr. Mishra, therefore, proceeds that in view of the aforementioned two circulars the petitioners had neither appeared in Hindi Noting and Drafting Examination nor were subjected to any of rigors of 1968 Rules and 5 in fact they had continued to get the benefit of their annual increment on year to year basis. He had also submitted that as a matter of fact when the said two circulars dated 20.9.1970 and 29.2.1972 were superceded only by a later circular dated 5.5.2005 issued by the Director-in-Chief of the Health Services wherein 19 posts in the Health Department including that of A.N.M. were also held to be requiring passing Hindi Noting and Drafting Examination the impugned order subjecting the petitioners to recovery of a huge sum in the impugned order dated 10.4.2006 on the ground that the petitioners were not entitled to earn such annual increment and that increments earned by them with consequential monetary benefits was fit to be recovered, must be held contrary to the earlier Government decision. Mr. Mishra has also submitted that in any event the petitioners being a Class III employee had neither played any fraud nor made any misrepresentation in any manner so as to be subjected to recovery. Counsel for the State, on the other hand, in all these four cases, with the help 6 of the counter affidavit, would submit that Rules of 1968 had statutory force and the alleged circulars issued in 1970 and 1972 by the Health Department had no competence to amend the statutory requirement of Rules, inasmuch as it is a well settled proposition of law that an executive instruction cannot override the statutory provision. It has also been submitted that the audit objection report of the office of the Accountant General had pointed out that a large number of Class III employees of the Health Department including petitioners were given annual increments contrary to the provisions of 1968 Rules and such amount being inadmissible to such employees who had not passed the Hindi Noting and Drafting Examination the same being excess amount drawn by the petitioners was fit to be recovered specially when the authorities of the Health Department were under obligation to comply with the said audit objection. In the opinion of this Court, the issue which has been raised by the petitioners in these writ applications was definitely not gone into by the authorities 7 who had passed the impugned order seeking to recover a huge amount from each of the petitioner. In fact perusal of records it is more than clear that such orders for recovery has been passed at the local district level as is also clear from the impugned order dated 10.4.2006 itself which was passed by the In-charge Medical Officer, Primary Health Centre, Majorganj, Sitamarhi on the basis of some directions given in the letter of the Under Secretary to the Health Department dated 6.3.2006. In fact there is no difficulty for this Court in holding that the Rules will have always precedence over any executive instruction but then if the Rules itself provide for exemption, it would be within the jurisdiction of the competent authority to clarify such Rules by issuing circular. In the present case way back in the year 1970 and 1972, soonafter the enforcement of 1968 Rules, the Deputy Director of the Health Services had gone to issue such circulars probably interpreting Rule 4 of 1968 Rules to mean that A.N.M. at least not required to do any job of putting notes in 8 the file or preparing drafts would not be required to pass Hindi Noting and Drafting Examination. Therefore, if ultimately the authorities of the Health Department by way relook of 1968 Rules want to clarify the applicability of 1968 Rules for passing of Hindi Noting and Drafting Examination for A.N.M. as would appear from the circular issued by the Director-in-Chief on 5.5.2005, Annexure „A‟ to the counter affidavit, its impact being only prospective in nature, the petitioners could not have been subjected to recovery at least on the basis of the decision taken on 5.5.2005. The consequential order dated 6.3.2006 of the Deputy Secretary of the Health Department by way of clarification to the In-charge Medical Officer of Primary Health Centre, Majorganj, Sitamarhi also does not deal this issue, inasmuch as it does not even take cognizance of existence of aforesaid 1970 and 1972 circulars and in fact proceeds on the basis that since there was an audit objection, the same had to be complied by way of recovery of the amount in excess drawn by the petitioners on account of not 9 passing the Hindi Noting and Drafting Examination. In such a situation, when the respondents have not at all decided the issue with regard to correctness of the two circulars of 1970 and 1972 as specifically relied by the petitioners in their writ application, this Court would direct the Principal Secretary of the Health Department himself to examine the whole things afresh with an open mind taking into consideration not only the requirement of 1968 Rules but also validity of 1970 and 1972 circulars. If in course of such examination, it is found that 1970 and 1972 circulars were issued by an incompetent authority, who had no power to pass an order of relaxation or if it is found that 1970 and 1972 circulars had not in any way adversely affected the applicability of 1968 Rules even for the post of A.N.M., he would still go to decide as to whether the circular issued by the Director-in-Chief of the Health Services dated 5.5.2005 having not held either 1970 and 1972 circulars to be inadmissible or bad could the same adversely affected the 10 petitioners specially when it had superceded all previous circulars only with prospective effect i.e. w.e.f. 5.5.2005. The Principal Secretary of the Health Department, therefore, would take a clear cut decision in the background of factual matrix of the case of the petitioners and in this exercise he would also find as to whether the petitioners in any way were responsible in earning their increment by playing any fraud or making any misrepresentation. While doing so the Principal Secretary will also keep in mind that if the circular of 5.5.2005 was only prospective in nature and the petitioners in the light of the aforesaid circular have already passed their Hindi Noting and Drafting Examination, whether they would still be required to refund of the excess amount if there was no misrepresentation or fraud on their part. This Court for the time being would not like to put its final word on the matter, inasmuch as it expects the Principal Secretary to take his firm decision as to whether in the given facts and circumstances 11 of the case of the petitioners as also in view of the law, that was prevailing on the dates they had earned their annual increments in the light of 1970/ 1972 circulars issued by the Health Department. Till such a exercise is completed and a final order is passed by the Health Commissioner, the impugned orders kept in abeyance under the earlier order of this Court dated 12.6.2006 shall not be given effect. With the aforementioned observation and direction, these applications are disposed of. (Mihir Kumar Jha,J.) Surendra/