IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8258 of 1997 RAM YATAN SAHNI, son of late Bishnu Sahni, resident of village Bhitha, P.O. Bhitha, Dharampur, P.S. Pupari, District Sitamarhi, presently Assistant Teacher, Govt. Primary School Lakhnipur, P.O. Bhadian, Anchal Nanpur, District Sitamarhi ... Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner and Secretary, Secondary Primary and Adult Education Department, Vikash Bhawan, Patna 2. Director (Primary) Education, Vikash Bhawan, Patna 3. District Superintendent of Education, Sitamarhi 4. Headmaster, Govt. Middle School Bhadian, District Sitamarhi … Respondents ----------- 8. 20.7.2010 Heard counsel for the petitioner and the counsel for the State. In this writ application the prayer of the petitioner reads as follows: “This is an application by the abovenamed petitioner for issuance of an appropriate writ/order/direction to quash the order contained in letter no. 2662 dated 9.8.1997 of District Superintendent of Education Sitamarhi (hereinafter referred as D.S.E.) and consequential order of Headmaster cum School complex head, Middle School Bhadian (Nanpur), Sitamarhi as contained in No. 137 dated 20.8.1997 whereby and whereunder the petitioner has been directed to deposit in Treasury through challan the excess amount drawn as D.A. over advance increment from 1.4.1983, on account of his wife‟s vasectomy for sterilization under Bihar Government servant‟s (Special provision in respect to Family Planning) Rule, 1977.” Counsel for the petitioner would submit that when the Government has framed a rule under proviso to Article 309 of 2 the Constitution as with regard to grant of additional increment to an employee undergoing family planning measure and the petitioner was also given the benefit of such rules (Annexure 3) by giving him additional increment in the year 1983, the benefit could not have been taken away on the ground that no D.A. was admissible on this additional increment. To that extent counsel assails the impugned order passed by the D.S.E., Sitamarhi dated 9th August, 1997 directing the Headmaster of Cluster School of the petitioner to revise the pay slip of the petitioner as also recover the amount from 1.4.1983 onwards. Counsel in this context has also submitted that the reliance placed by the respondents in their counter affidavit to the resolution dated 27th September, 1995 providing, inter alia, ^^ewy osru ds vykos fo'ks"k osru@oS;fDrd osru bR;kfn ij eagxkbZ HkRrk ns; ugha gksxkA** would run contrary to the instruction/ clarification issued by the officials of the Finance Department which in effect had reiterated the permissibility for grant of D.A. or additional increment in the light of the query answered of the D.S.E., Sitamarhi. In this context he would also refer to Annexure 10 dated 28.10.1994 of the Under Secretary of the Finance Department answering the query of D.S.E. dated 30.4.1994 as also its being reiterated by the same authority in his subsequent letter dated 27.1.1996. In the opinion of this Court this new plea being taken in the rejoinder affidavit has not been answered/ could not have 3 been answered because if these documents were brought on record at the time of filing of the writ petition the respondent officials of the Finance Department could have explained that as to whether individual communication made in letters contained in Annexures 10, 11 and 12 would hold forte in presence of the Government resolution dated 26th September, 1995. As the matter has remained pending in this Court for almost 13 years, it would be better if this impasse is resolved by the present Finance Commissioner, who will look into the applicability of the Government resolution, as contained in Annexure „A‟ to the counter affidavit vis-à-vis the clarification issued by the Under Secretary of the Finance Department dated 28.10.1994 and its being reiterated on 27.11.996 vide Annexures 10 and 12 to the writ application. It is, however, made clear that even if it is found that the petitioner was not entitled for getting D.A. on special increment he would not be subjected to any recovery, inasmuch as it was not on account of any fault of the petitioner much less misrepresentation of any kind made by him which can be said to have led to the payment of the amount of D.A. to him and therefore, it would only direct that the petitioner may be given his due entitlement but in any event whatever amount has already been paid to him on this head prior to passing of the impugned order will not be recovered. Subject to the aforementioned observation, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/ 4