IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8367 of 2002 Rajmati Devi, Wife of Late Suresh Mishra, Village & P.O. Chattiya, P.S. Malahi, District East Champaran. ------------ Petitioner Versus 1. The State of Bihar through the Secretary, Department of Health, Government of Bihar, Patna. 2. The Director, Health of Bihar, Patna. 3. Block Development Officer, Additional Primary Health Centre, Kariya Block, Paharpur. 4. Incharge Medical Officer, Additional Primary Health Centre, Kariya Block, Paharpur, East Champaran. 5. Senior Account Officer, Bihar, C/o Office Accountant General (A&E)II, Bihar, Patna. 6. Accountant General (A/E), Bihar, Patna. -------- Respondents ----------- 8 21.06.2010 No one appears on behalf of the petitioner. Counsels for the State as also Accountant General are present. In this writ application, the prayer of the petitioner reads as follows:- “1. That this is an application for issuance of an appropriate writ order or direction for quashing Annexure-1 whereby an excess payment made to the Late husband of the petitioner has been honoured to be recovered as the same was not made due to any misrepresentation on part of the husband of the petitioner and has been made due to the fault of the authorities and discrepancy creptin due to the 5th Pay Revision and as per the principles laid down Saahabram Vs. State of Haryana and others reported in 1995 Suppl (1) SCC 18 the same cannot be recovered and for grant of any consequential relief or reliefs which this Hon’ble Court may deem fit and proper under the circumstances of the 2 case.” The petitioner, being the widow of late Suresh Mishra, in fact, has very limited grievance that whatever salary or emolument was fixed in favour of her husband, the same was duly notified by the officials of the State of Bihar in which there was no misrepresentation made by him holding a Class- III post. She has accordingly submitted that after the death of her husband, the reduction of the amount of family pension and/or recovery of the alleged amount would be a gross injustice to a widow who does not have even now the service details of her husband. In this regard, reliance has been also placed on the judgment of the Apex Court in the case of Sahib Ram Vs. State of Haryana & Ors. reported in 1995 Suppl. (1) SCC 18 and an order of this Court dated 26.8.1999 in CWJC No. 6191 of 1998, wherein the aforementioned judgment of Sahib Ram (supra) was followed by the learned single Judge of this Court. Counsel for the State, with reference to the counter affidavit of the Accountant General, has submitted that once the Accountant General had reported that:- “7. That on scrutiny of service book it was found that late Mishra 3 was allowed higher pay scale Rs. 535-765 in place of 425-605 with effect from 1.3.1986. It may be mentioned here that the pay scale of Dresser has not been revised from 1.3.1986 as per recommendation of pay anomaly Committee report. The replacement scale of Dresser was also not given correctly from 1.1.1996. As per Finance Department Resolution no. 660 dated 8.2.1999 at page 76, Sl. No. 326, the pay scale of Dresser from 1.1.1996 is mentioned Rs. 2650-4000 whereas Department allowed Rs. 3050-4590. 8. That in light of resolution no. 660 dated 8.2.1999 (Annexure B) the case of the petitioner was returned to the Department vide letter no. Pen-4-1678-79 dated 12.10.2001 issued from the office of the Accountant General for correct pay fixation and to intimate the mode of adjustment of excess paid pay and allowance due to allowing higher pay scale as mentioned above. But the case has not been received again from the Department after compliance. A reminder was also issued to the Department for sending the pension case of the petitioner vide letter no. Pen-4-935-36 dated 2.8.2002.” , there was little scope for the respondent officials of the State of Bihar to make recovery of the amount. In the opinion of this Court, when the husband of the petitioner, who was employed as a Health Worker on 13.11.1969 and had also died on 26.1.2000, any action taken by the authorities of the Accountant General and/or 4 the State of Bihar on or after 12.10.2001 much after the death of husband of the petitioner for refunding the amount of salary was unjustified. It has to be noted that there is no counter affidavit on behalf of the respondent State of Bihar to even suggest of any misrepresentation or any fraud played by the husband of the petitioner in getting the aforesaid higher pay-scale. In that view of the matter, while this Court would direct that the proposed recovery in terms of the impugned order will not be made but then whatever salary to which the husband of the petitioner was entitled in law in the pay scale of Rs. 2650-4000 will only be the basis for calculation of all retirement benefit. In other words, the re-fixation will be made in terms of the impugned order as contained in Annexure-1 but no recovery shall be effected from the widow in any manner on the ground of excess amount paid to her husband in his life time. With the aforementioned observations and directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)