IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2193 of 2006 Geeta Devi wife of Sheoraj Singh, resident of village Supa Bigha, P.S. Akodhi Gola District- Rohtas (Sasaram) and presently posted as an A.N.M. at Addl. Primary Health Centre Akadhi Gola District Rohtas (Sasaram). …. Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary, Raj Bhasha Department Govt. of Bihar, Patna. 3. The Secretary, Department of Health, Govt. of Bihar, Patna. 4. The Finance Secretary, Govt. of Bihar, Patna. 5. The Director in Chief Health Services Govt. of Bihar, Patna. 6. The Additional Director Health Services, Govt. of Bihar, Patna. 7. The Deputy Director Health Services (Primary) Govt. of Bihar, Patna. 8. The Additional Commissioner Cum Secretary, Department of Health Govt. of Bihar, Patna. 9. The Incharge Medical Officer Primary Health Center Dehri District Rohtas (Sasaram), Bihar. …. Respondents. ----------- For the petitioner : Mr. Abhinav Shrivastava, Adv. For the respondents : Mr. Anil Kumar Singh, A.C. to G.P.3 ----------- 6. 23.06.2011 This writ petition is directed against the order bearing memo no. 955, dated 12.12.2005 (Annexure-1), issued under the signature of respondent no. 9, whereby a sum of rs.1,42,476.00 paise has been sought to be recovered in instalments from the salary of the petitioner on account of payment of increments without having passed the Hindi Noting and Drafting Examination (hereinafter referred to as the „Examination‟). 2. The petitioner was appointed in the services of the State of Bihar in the Health Department 2 as Auxiliary Nurse Mid-wife (hereinafter referred to as A.N.M.), vide Letter No. 2380, dated 6.9.1986, and had joined on 27.9.1986. She continued to be paid her routine increments as per her entitlements. She was served with the impugned order wherein it is stated that, without having passed the examination, she had drawn a sum of Rs.1,42,476/- by way of increments during the period September 1987 to April 2005, unauthorisedly and illegally. She is, therefore, liable to refund the same, which shall be recovered in instalments, i.e. @ Rs.603/- per month from her salary. It is relevant to state that she subsequently passed the examination held on 26.10.2008, the result of which was published on 14.9.2009. 3. This matter was laid before a learned single Judge of this Court who noticed conflict of views between the following two decisions of learned single Judges of this Court: (i) Order dated 4.11.2009 in Asha Devi vs. The State of Bihar & Ors., 2010(1) PLJR 901. (ii) Unreported order dated 10.5.2010 (Annexure-6) passed in CWJC No. 3877 of 2006 (Radha Devi vs. the 3 State of Bihar & Ors.) The learned single Judge has also referred to rules 7 and 8 of fcgkj ljdkjh lsod ¼fgUnh ijh{kk½ fu;ekoyh, 1968, as well as the judgment of Supreme Court in Bihar State Electricity Board & Anr. vs. Bijay Bhadur & Anr, (2000) 10 SCC 99. In view of the apparent conflict between the two decisions of learned single Judges with reference to the statutory rules and judgment of the Supreme Court, the learned single Judge has referred the present writ petition for consideration of a Division Bench by his order dated 13.8.2010. That is how the matter has been laid before us for our decision. 4. Learned counsel for the petitioner submits that the field is occupied by the Rules, read with the circulars of the State Government issued from time in clarification of the provisions of the Rules. The communication dated 20.6.1970, read with those of 29.1.1972 and 15.10.1999, marked Annexure- 2 series, make it abundantly clear that A.N.Ms. are exempt from operation of the Rules. He submits in the same vein that 4 communication of the State Government dated 5.5.2005 (Annexure- 2 series), makes passing of the examination compulsory for a large number of employees of the Health Department, but does not include A.N.M.. Therefore, the aforesaid three communications of 1970, 1972, and 1999, continue to operate in favour of the petitioner. 4.1) He next submits that even if passing of the examination were compulsory for the category of employees of the petitioner, a combined reading of the relevant provisions of the Rules makes it clear that the petitioner shall not be deprived of the benefit of increments if he passes the examination at a later date. He submits that the two orders of the learned single Judges of this Court are not in conflict with the Rules, nor with the judgment of the Supreme Court. 5. Learned Government Counsel has supported the impugned order. 6. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The writ petition does not state the 5 nature of the duties and functions being performed by A.N.Ms., and whether or not they are required to record notes, or submit drafts for approval, or submit reports. The counter affidavit is far worse, and is of the level of being ridiculous. We are handicapped in deciding issues of facts. We are, therefore, left to read the communications relied on by the learned counsel for the parties issued from time to time, and as it generally happens with diverse communications of the State Government on the same subject, tend to be contradictory. 7. We, therefore, examine different communications placed before us for the limited purpose of disposal of the present writ petition. The text of the communication dated 20.6.1970, is reproduced hereinbelow. “ izs"kd] Mk0 Lo0 iz0 iz0 flUgk lgk;d funs”kd] Lok0 lsok;sa ¼fcgkj] iVuk½ lsok esa] lHkh ojh; O;;ikyd fpfdRlk inkf/kdkjh ,oa v0”k0fp0 iVuk]fnukad 20-6-1970 fo’k;%& fgUnh izk:i.k ijh{kk ikl djus ds laca/k esa A 6 egk”k;] mijksDr fo’k; ij vkidk /;ku vkd`’V djrs gq, eq>s dguk gS fd fu;qfDr jktHkk’kk foHkkx ds Kki la0 14448 fnukad 3-11-61 ds dafMdk vuqlkj ,sls ljdkjh deZpkjh fgUnh fVII.kh izk:i.k esa fu;qfDr le>s tk;saxs ftUgsa vius dk;Z lEiknu esa fVIi.kh rFkk izk:Ik fy[kus dh vko”;drk ugha igyh Hkfo’; esa izksUufr ds QyLo:Ik vko”;d gks rks ijh{kk esa mRrh.kZ gksuk vfuok;Z gks tk;sxk vkSj izksUufr in ij osru o`f) rc rd ds fy;s :d tk;sxk tc rd os mDr ijh{kk esa mRrh.kZ ugha gks tkrs A tgkWa rd iz[k.M esa inLFkkfir Lok0 deZpkfj;ksa dk laca/k ys[kkiky ,oa i=kpkj fyfid dk NksM+dj vU; dks vius nSfud dk;Z lEiknu esa fVIi.kh rFkk izk:i.k dh vko”;drk ugha iM+rh mUgsa fgUnh fVIi.kh ijh{kk ls foeqDr le>k tk;s vkSj fu;fer osru o`f) nh tk;s A d`Ik;k i= izkfIr dh lwpuk nsa A fo'okl Hkktu g0@&Lok0 i0 iz0 flUgk lgk;d funs”kd] LokLF; lsok;sa] fcgkj Kki la0 20 ¼2960@20-6-70]vk0jk0½” (emphasis added) It is thus evident that all the employees of the Health Department posted in a block, except the accountant and the correspondence clerk would be exempt from passing the examination. 7 7.1) This communication was clarified by that of 29.1.1972, which clearly mentions A.N.M. in the subject matter, the text of which is reproduced hereinbelow:- “izs"kd MkW0 Jherh ,l0 uUn mi funs”kd LokLF; lsok ¼iz0½ fcgkj] iVuk lsok esa] lHkh ojh; O;; ikyd fpfdRlk inkf/kdkjh ,oa v0 “k0 fp0 ftyk ifjokj fu;kstu inkf/kdkjh] iVuk] fn0 29-1-72 fo’k;& ,0,u0,e0 dks fVIi.kh izk:i.k ijh{kk ikl fd;s fcuk osru o`f) ,oa n{krkjks/k ikj djus ds laca/k esa A Ekgk”k;] mijksDr fo’k;d Lok0 funs”kky; ds i= la0 10 ,p0&602&66¼66½ 600¼10½ Lok0 fnukad 20-6-70 dh izfr layXu djrs gq, ,oa bl laca/k esa blds igys dh lHkh vkns”kksa dk vfrdze.k djrs gq, funsZ”k fn;k tkrk gS fd lacaf/kr deZpkfj;ksa dk dh osru o`f) ,oa n{krkjks/k ikj djrs le; layXu izi= lwph vuqlkj gh dkjZokbZ djsa A d`Ik;k i= dh izkfIr Lohdkj dh tk;s A fo”oklHkktu g0@& lq"kek uUnu mi funs”kd] Lok0 fcgkj] iVuk la[;k & 10 & ¼,p 602&66 ¼600½10 Lo0” (Emphasis added) 8 It is evident on a perusal of this communication that it is with reference to the said communication dated 20.6.1970, and tends to create an impression that A.N.Ms. are exempt from passing the examination. 7.2) This was followed by Communication dated 15.10.1999, the text of which is reproduced hereinbelow;- la[;k 21@la[;k 05@9917 ih@ fcgkj ljdkj “LokLF; fpfdRlk f”k{kk ,oa ifj0 d0 foHkkx iVuk] fnukad 15-10-99 izs’kd] Jh th0 ,l0 dax] vij vk;qDr ,oa ljdkj ds lfpo lsok esa] lfpo] jktHkk’kk foHkkx] fcgkj fo’k;& LokLF; foHkkx ds deZpkfj;ksa dks fgUnh fVIi.k ,oa izk:i.k ijh{kk ls eqDr djus ds lEcU/k esa A egk”k;] mi;qZDRk fo’k; ds laca/k esa eq>s dguk gS fd LokLF; foHkkx us vius Kkikad 185 fu0 iz0 fnukad 8-8-1990 dh dafMdk&4 ¼izfrfyfi layXu½ esa ;g fu.kZ; fy;k x;k gS fd ys[kkiky ,oa i=kpkj fyfid dks NksM+dj “ks’k r`rh; oxZ ds deZpkjh dks fgUnh fVIi.k ,oa izk:i.k dh ijh{kk mRrh.kZ djus dh vko”;drk ugha gS] D;ksafd vU; rduhdh deZpkjh gaS A 9 vr% vkils vuqjks/k gS fd vki bl laca/k esa vko”;d vkns”k fuxZr djsa A fo”oklHkktu g0@&vLi’V ¼th0 ,l0 dax½ vij vk;qDr ,oa ljdkj ds lfpo” (Emphasis added) It appears on a perusal of the same that all the employees of the Health Department except accountants and correspondence clerks, are exempt from passing the examination because they are technical employees. 7.3) It is thus evident on a combined reading of these three communications that the employees of the category of A.N.M. are exempt from passing the examination. 8. This was followed by government communication dated 5.5.2005, whereby the combined effect of the aforesaid three communications have been specifically diluted, and a large number of employees of the Health Department, who were earlier exempt from passing the examination, are now required to pass the 10 same. The text of the communication dated 5.5.2005, is reproduced hereinbelow;- “fo’k;%& fgUnh fVIi.k izk:i.k ijh{kk ls foeqDr ugha djus ds laca/k esa A egk”k;] mi;qZDr fo’k; ij dguk gS fd LokLF; fpfdRlk f”k{kk ,oa ifjokj dY;k.k foHkkx] fcgkj ds fuEukafdr in/kkjdksa dks fgUnh fVIi.k izk:i.k ijh{kk ls foeqDr ugha djus esa jkt Hkk’kk foHkkx] fcgkj] iVuk dh lgefr izkIr gqbZ gS %& ¼1½ QkekZflLV] 2-iz;ksx”kkyk izkoSf/kd 3-cqfu;knh LokLF; &dk;ZdrkZ] 4-,DLkjs Vsdfufl;u 5-,dljs eSdsfud 6-“kY; d{k lgk;d 7-MkdZ :e vflLVsUV 8-ifj/kkid 9-LokLF; ifjn”kZd 10-feJd 11-LcPNk fujh{kd 12- gsYFk cdZj 13- dykdkj&lg&Nk;kdkj 14-pkyd&lg&py fp= pkyd 15- [kk| fujh{kd 16-efgyk LokLF; dk;ZdrkZ 17-efgyk Lok0 ifjnf”kZdk 18-,xzsM ulZ 19-lgk;d LokLF; dk;ZdrkZ ¼2½ vr% mDr in/kkjd dkfeZ;ksa dks fgUnh fVIi.k izk:i.k ijh{kk tks jktHkk’kk foHkkx] fcgkj] iVuk }kjk le;&le; ij vk;ksftr dh tkrh gS esa fu;ekuqlkj mRrh.kZ gksuk vfuok;Z gS A ¼3½ bl laca/k esa iwoZ fuxZr lHkh vkns”k fujLr fd;k tkrk gS A ¼4½ vius Lrj ls lHkh lacaf/kr dfeZ;ksa dks bldh izfr miyC/k djkuk lqfuf”pr djsa A fo”oklHkktu g0@& vLi’V funs”kd izeq[k LokLF; lsok,Wa] fcgkj] iVuk” 11 It is evident on a perusal of the same that a large number employees of the Health Department who would be described as technical employees, are no longer exempt from passing the examination. Viewed from any angle, this Communication does not include A.N.M. In other words, all employees of the Health Department seemingly discharging technical duties and functions are no longer exempt from passing the examination. A.N.M. is not included in the list of those employees of the Health Department who are now required to pass the Examination. 9. We, therefore, conclude that A.N.Ms. are not included in this list of employees required to pass the examination, and are exempt from passing the examination. We are mindful of paragraph 3 of the communication dated 5.5.2005, that “bl laca/k esa iwoZ fuxZr lHkh vkns”k fujLr fd;k tkrk gS A” Even if paragraph 3 is treated to have been cancelled the aforesaid communications of 20.6.1970, 29.1.1972 and 15.10.1999, it does not seem to derogate from our 12 conclusion because A.N.M., a distinct and recognized category of employees of the State Government, are exempt from passing the examination because of the omission in the list of employees mentioned in the said communication dated 5.5.2005. We, therefore, reach the conclusion that, in view of the materials placed before us, A.N.Ms. are not required to pass the examination. 10. In view of the foregoing discussion, the remaining questions canvassed at the Bar, or the issues referred by the learned singe Judge for our decision, need not be decided. 11. In the result, the writ petition is allowed, and the impugned order bearing memo no. 955, dated 12.12.2005, is hereby set aside. Let the amount recovered from the petitioner be refunded to her. kanchan (S. K. Katriar, J.) ( Amaresh Kumar Lal, J.)