IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.999 of 2008 DULAR CHAND RAM SON OF LATE LALMAN RAM, RESIDENT OF VILLAGE- AHRAWAN, P.O.- NATWAR, DISTRICT- ROHTAS, AT PRESENT RESIDING AT ROAD NO. 4, ASHOK NAGAR, KANKARBAGH, PATNA-20 Versus 1. THE STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY, DEPARTMENT OF HEALTH, BIHAR, NEW SECRETARIAT, PATNA 2. THE COMMISSIONER-CUM-SECRETARY, HEALTH DEPARTMENT, BIHAR, NEW SECRETARIAT, PATNA 3. THE DIRECTOR, HEALTH DEPARTMENT, BIHAR, NEW SECRETARIAT, PATNA 4. THE SUPERINTENDENT, PATNA MEDICAL COLLEGE AND HOSPITAL, PATNA 5. THE ACCOUNTANT GENERAL, BIHAR, PATNA ----------- 7 09.09.2010 Heard learned counsel for the petitioner and Mr. Braj Kishore Prasad Sinha, learned Govt. Pleader No. 3 appearing for the State. Petitioner’s grievance is for fixation of his pay scale and payment of arrears thereof as also for refunding the deducted amount from the retiral dues. As submitted, during the pendency of the writ application the first two grievances of the petitioner have been redressed. As regards the third grievance it is submitted that pursuant to the order passed on the previous writ petition filed by the petitioner vide C.W.J.C. No. 6756 of 2001 disposed of on 18.05.2001 the respondent issued the office order contained in memo no. 4824 dated 15.06.2001 as contained in Annexure-10 to the I.A. No. 189 of 2008 from which it would appear that the petitioner was granted selection grade while working as a Clerk in the administrative office of the Patna Medical College & - 2 - Hospital vide letter of the Health Department as per letter no. 1296 (5) dated 12.076.1981 in the pay-scale of Rs. Rs.335-535 and the salary was accordingly fixed after granting 12 % as a promotional benefit. Later on the said order was modified under the order of the Department of Health as contained in letter no. 469(5) dated 15.04.1983 whereby the order of promotion of the petitioner to the selection grade was modified w.e.f. 15th February, 1979 in the pay-scale of Rs. 240-490/- and in the revised scale w.e.f. 01.045.1981 in the pay-scale of Rs. 680-965/-. Later on the petitioner was promoted to the post of Office Superintendent in the said Hospital in the pay-scale of Rs. 1640-2900/-. Learned counsel further submits that Annexure-10 mentions that the selection grade of pay granted to the petitioner w.e.f. 15.02.1979 in the revised pay-scale of Rs. 730-1080/- instead of Rs. 680-965/- was due to their own mistake and similarly again similar mistake was committed while fixing the salary of the petitioner on his promotion to the post of office superintendent of the Hospital in terms of the office order no. 2919 dated 02.04.1991 in the pay-scale of Rs. 1640- 2900/- instead of Rs.1500-2750/-. Learned counsel contends that petitioner retired on 31st October, 2000 and recovery after his retirement from the gratuity is not justified on account of the alleged initial mistakes - 3 - committed in the year 1979 in fixing the salary of the petitioner which he continued to receive as also after his promotion to the higher post of Office Superintendent the pay-scale was again revised on implementation of the 5th Pay Revision Committee Report as per the Govt. Resolution no. 660 dated 8th February, 1999. Learned counsel for the State, on the other hand, submits that the said excess payment was made for which petitioner is responsible since he was working in the office of the Superintendent in P.M.C.H. and in that circumstance the excess amount paid to the petitioner due to wrong fixation of salary was liable to be recovered. Learned counsel further submits that all the admissible dues of the petitioner towards the retiral dues has already been paid. Learned counsel further submits that the recovery was rightly made since the payments were made on account of wrong fixation of pay-scale. Upon considering the rival submissions of the parties, controversy is against recovery. According to the petitioner recovery is not justified after his retirement from his gratuity as petitioner can not be faulted for allowing the selection grade while working as Clerk w.e.f. 15.02.1979 and the petitioner continued to receive the salary with subsequent revisions in pay-scale and also on his promotion to the post of Officer Superintendent with - 4 - effect from the year 1991. On perusal of the order as contained in Annexure-10 as also Annexure-C to the supplementary counter affidavit, it appears that the recovery is due to wrong fixation of salary on account of mistake in fixing as to what was the correct pay-scale payable to the petitioner while granting him the selection grade w.e.f. 15.02.1979. Similar mistake was committed later on in the year 1991 while promoting him to higher post of Office Superintendent in P.M.C.H. It is not the case of the respondents that the pay-scale of the petitioner was revised during the aforesaid period due to any misrepresentation or fraud on the part of the petitioner or in fixing the pay scale the petitioner had any role to play. The only ground indicated in the said order as contained in Annexure-10 to the supplementary affidavit that is on account of clerical mistake as to the admissibility of the pay scale to which the petitioner is entitled. The petitioner has retired on 31st October, 2000 and now this Court is of the opinion that it would not be justified on the part of the respondents to recover the aforesaid amount of Rs. 88,762/- from the gratuity of the petitioner for which apparently no fault is attributed against him. In the above circumstances, the aforesaid amount of Rs. 88,762.60/- which has been recovered - 5 - from the gratuity as mentioned in gratuity payment order as contained in Annexure-11 to the supplementary affidavit is directed to be refunded back to the petitioner expeditiously preferably within a period of two months on receipt/production of the certified copy of the present order to be presented before the respondent no.2 with copy of the same to the respondent nos. 3, 4 & 5. It is further made clear that any decision contrary to the above stands quashed. The writ application stands disposed of with the above observations/directions. Manish/- (Shailesh Kumar Sinha,J.)