IN THE HIGH COURT OF JUDICATURE AT PATNA ------- Letters Patent Appeal No.288 of 2011 ------ 1. THE STATE OF BIHAR THROUGH THE SECRETARY OF HEALTH EDUCATION AND FAMILY WELFARE DEPARTMENT, BIHAR, PATNA 2. SMT. GEETA PRASAD, THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 3. THE SUPERINTENDENT, SADAR HOSPITAL,PURNEA NAMELY, R.C. MANDAL. 4. SHRI R.C. MANDAL, SUPERINTENDENT, A.N.M. SCHOOL, PURNEA 5. DR. UPENDRA TIWARY, CIVIL SURGEON CUM CHIEF MEDICAL OFFICER, PURNEA, S/O SHRI AJABLAL TIWARY, VILLAGE + POST- JHANJHARPUR, P.S. PASRAHA, DISTRICT- KHAGARIA............................................................APPELLANTS Versus LILAWATI KUMARI W/O LATE JITAN PRASAD, R/O VILLAGE AND P.S. SAREYA, DISTT- GOPALGANJ, AT PRESENT JUNIOR SISTER TUTOR, A.N.M. SCHOOL, PURNEA... RESPONDENT ---------- 5 06-07-2011 Heard the parties in respect of I.A. No.1272 of 2011 filed under section 5 of the Limitation Act. For the reasons mentioned in the aforesaid application, the delay of about 116 days in preferring this appeal is condoned and the limitation petition is allowed. Heard learned counsel for the appellants and learned counsel for the respondent. This appeal is directed against the order dated 7-7-2010 passed in a contempt proceeding bearing M.J.C. No. 3262 of 2007. The contempt petition was for the alleged violation of order dated 9-8-2007 passed in C.W.J.C. No. 3262 of 2007. A copy of that order has been annexed as annexure-3 to the counter-affidavit. One of the two reliefs sought by the writ petitioner was in respect of payment of 2 salary for the period 30-3-1996 to 1-4-1998, during which she claims to be posted in the Secretariat. Admittedly the counter-affidavit filed in the writ proceeding on behalf of Civil Surgeon, Purnea contained a simple statement that for the salary in question, requisite steps had been taken for funds and payment shall be made as soon as the same is received. On that basis the writ court passed a direction in paragraph-7 of the judgment which is as follows- “ The writ petition is accordingly allowed. Respondent no.2 is hereby directed to ensure payment of lawful dues to the petitioner. The entire dues of the petitioner already paid in part or yet to be paid, shall carry interest @ 6% from the date of her entitlement till the date of payment. If the same is not paid within a period of three months from today, she shall thereafter be entitled to interest @ 12% till the date of payment. The petitioner shall also be supplied with details of calculation. The petitioner shall be entitled to costs of this writ petition quantified at Rs.10,000/- ( ten thousand ), all to be paid in one instalment.” Under the aforesaid directions the lawful dues of the petitioner were required to be paid within the time stipulated. It is not in dispute that all the dues of the petitioner including salary for that period was paid by the Civil Surgeon during the pendency of the contempt proceeding which is noted in the order under appeal itself. However, the writ petitioner/ respondent herein raised a grievance that during the pendency of the contempt proceeding an order bearing Memo No.1856 Swa., Purnea dated 7-7-2009 had been issued under the signature of Civil Surgeon-cum- Chief Medical officer, Purnea informing the writ petitioner that she was erroneously paid salary for the period 6-5-1997 to 1-4-1998 and hence the said amount was to be recovered in instalment. The order under appeal discloses that the learned single Judge 3 found the order dated 7-7-2009 to be an order passed in violation of the directions issued in the writ case and simply for harassment, accordingly that order was quashed. A direction has been given to the concerned authority to refund the recovered amount along with interest at the rate of 25% in one lump sum. It has been submitted on behalf of appellants that the order dated 7-7-2009 which has been quashed in contempt jurisdiction was actually on the basis of decision and order of the Director-in-Chief, Health Services, Bihar contained in his letter no.1122 (6) dated 23-11- 2007 whereby the service period of the writ petitioner from 30-6-1996 to 5-5-1997 was treated to be period spent in waiting for posting and entitled her for full pay and allowances whereas the period 6-5-1997 to 1-4-1998 was regularized as extraordinary leave without pay. The plea of the appellants is that the counter-affidavit filed in C.W.J.C. No.9339 of 2000 suffered from an inadvertent error and by mistake the whole period from 30-3-1996 to 1-4-1998 was impliedly admitted as period waiting for posting in the Secretariat. According to the appellants the order of the Director-in-Chief was based upon relevant facts taking into account the period when the writ petitioner did not work in spite of posting and hence such an order issued after the disposal of the writ petition may provide the writ petitioner/ respondent herein with a fresh cause of action but the interest of justice requires that the Director-in- Chief and other concerned officer should be given an opportunity to correct the error so that the writ petitioner may not enrich herself illegally on account of excess payment of Rs.1,09,186.00. It has further 4 been submitted that there was no intention to harass the writ petitioner otherwise the entire amount would not have been paid initially in compliance with the order of the writ court. Learned counsel for the writ petitioner submits that it was the duty of the Director-in-Chief who was party in the earlier writ proceeding to bring the correct facts to the notice of the court before the writ petition was decided on 9-8-2007. According to him once the Civil Surgeon-cum- Chief Medical officer, Purnea had taken a stand on affidavit and did not controvert the assertion that the writ petitioner was waiting for posting in the Secretariat for the entire period, the State or other officials such as Director-in-Chief cannot take a contrary stand and pass the order treating the period 6-5-1997 to 1-4-1998 as extraordinary leave without pay. In our considered view, the parties must be given adequate and proper opportunity to prove their respective cases in respect of legality and propriety of the order of the Director-in-Chief dated 23-11- 2007 leading to order for recovery in instalment passed by the Civil Surgeon on 7-7-2009. When the matter relates to payment from public exchequer, one mistake inadvertent or otherwise by the Civil Surgeon cannot be permitted to be final so as to entitle the writ petitioner for salary, if it was actually not due. Only on proper adjudication the respondent may be found so entitled. Hence the part of order under appeal where by the order dated 7-7-2009 has been quashed and cost of Rs.25,000/- imposed, is set aside. It is made clear that we have not considered the legality or correctness of the order of the Director-in- 5 Chief dated 23-11-2007 mentioned in paragraph-7 of the memorandum of appeal or the order of the Civil Surgeon dated 7-7-2009 directing for recovery of the excess amount in instalment. It will be open for the writ petitioner/ respondent herein to challenge those orders through appropriate proceeding in accordance with law. The appeal is allowed to the aforesaid extent. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey,J)