IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1514 of 2009 RAMAWATI DEVI, WIFE OF LATE RAJENDRA PRASAD, RESIDENT OF VILLAGE – MILKY, P.S. PALIGANJ, DISTRICT – PATNA. …………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DISTRICT SUPERINTENDENT OF EDUCATION, PATNA. 3. THE HEAD MASTER, MIDDLE SCHOOL, BAIKATPUR, FATUHA, DISTRICT – PATNA. 4. THE ACCOUNTANT GENERAL, BIHAR, PATNA. 5. THE TREASURY OFFICER, PATNA. …………… RESPONDENTS. ----------- 04/ 26.07.2011 Heard counsel for the petitioner and counsel appearing for the State. Counter affidavit has been filed on behalf of the then District Superintendent of Education, Patna, which is now designated as District Programme Officer. Petitioner is the widow of late Rajendra Prasad, who was an Assistant Teacher in Primary School, Fatuha in the district of Patna. Petitioner’s husband was allowed Matric trained scale with effect from 11.8.1975 and first time bound promotion was allowed to him with effect from 11.8.1985. The husband of the petitioner died in harness on 18.9.2002. Till date, he was alive, the benefit of time bound promotion allowed with effect from 1985, was never questioned. Petitioner was allowed death benefits of her husband by the orders of the District Superintendent of Education, 2 Patna. She was also receiving family pension. Suddenly letter dated19.10.2006 contained in Memo No. 8070 was issued by the then District Superintendent of Education, Patna, whereby a direction was issued to recover excess amount paid to the husband of the petitioner on account of allowing time bound promotion with effect from 11.8.1985 instead of 1.4.1987. On the basis of this order Rs.1,09,177/- was directed to be recovered from the family pension of the petitioner and accordingly, payment of family pension was stopped with effect from April, 2007. The impugned order, whereby direction has been issued for recovery of excess amount paid to the petitioner’s husband on account of early time bound promotion allowed is under challenge in the present writ application. Counsel for the petitioner submits that till the date petitioner’s husband was alive, there was no order from any corner, no show cause was issued to him, neither any departmental proceeding in this regard had been initiated. After the death of the petitioner’s husband, the petitioner was also receiving family pension. The respondents, had no reason for issuing an 3 illegal and arbitrary direction to make recovery from her family pension. The respondent-authorities of the Education Department or the Accountant General, are not vested with a jurisdiction to pass such order of recovery from the family pension of the widow, after the death of the employee, who actually had been allowed the benefit of time bound promotion. In the counter affidavit nothing new has been mentioned except that time bound promotion allowed to petitioner’s husband in the year, 1985 was premature as his entitlement was in the year 1987. Since, the petitioner’s husband received excess payment, on account of early time bound promotion, a direction had been issued to recover such excess amount from the family pension of the petitioner. During the pendency of the writ application, on account of ad interim order passed on 17.8.2010, and operation of impugned order was stayed. In compliance of the ad interim order, the recovery was stayed and payment of family pension remain continued to the petitioner. The petitioner, as such continued to receive her family pension. 4 Considering the fact that during the life time of petitioner’s husband no disciplinary action had been taken by the authorities, rather all payments were made to him. Recovery from family pension of the petitioner is not legally permissible. The impugned order contained in Memo No. 8070 dated 19.10.2006 is quashed. Petitioner will continue to receive her family pension as she used to receive it earlier receiving and any amount which has been recovered from the family pension of the petitioner, that shall be refunded by the respondent-authorities, within four weeks from the date of production/communication of this order. This application is allowed. DKS/ (Mridula Mishra, J.)