IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7071 of 2003 NEELAM VERMA, w/o Sri Gopalji Sahay, resident of Painathi, Post- Bahpura, P. S. Bihta. ……Petitioner. Versus 1. 1.THE STATE OF BIHAR, through , Health Secretary, Govt. of Bihar, New Secretariat, Jawaharlal Nehru Marg, Patna. 2. Finance Secretary, Govt. of Bihar, Old Secretariat, Patna. 3. Director-in-Chief, Health Services, Govt. of Bihar, New Secretariat, Patna. 4. Civil Surgeon, Purnea, District- Purnia. 5. Incharge Medical Officer, Primary Health Centre Rupauli, Purnea. ……..Respondents. ----------- 4. 19.08.2010 Heard counsel for the petitioner and counsel for the State. Initial this writ application, the petitioner had made the following prayer; “(i) Issuance of an order, direction or writ in the nature of certiorari quashing the letter dated 20.6.2000 contained in Memo Number 239 under the Signature of Incharge, Primary Health Centre, Rupauli, PUrnea whereby increments granted to the petitioner during the period 3.7.1982 to 15.5.94 to the tune of Rs.16737/- is being recovered not in consonance with equity. (ii) Issuance of an order, direction or writ in the nature of mandamus commanding the respondents not to reduce the scale of the petitioner from 4500-7000 to 4000-6000 (Scale of L.H.V. to the scale of A.N.M.).” Counsel for the petitioner would submit that during the pendency of this writ application, since the petitioner had a cause of action for claiming the benefit of second ACP, an additional prayer has been made in this 2 writ application by filing an amendment petition, I. A. No. 430 of 2010, but he does not intend to press this writ application. I. A. No. 430 of 2010 is accordingly dismissed as not pressed. Coming to the merits of the case as with regard to the prayer in the original writ petition, counsel for the petitioner has also accepted that as the petitioner has passed the matriculation examination, she has been given the benefit of pay-scale of L.H.V i.e. Rs.4500-7000, therefore he does not press even that part of relief claimed in paragraph 1(ii) of the writ application. Counsel for the petitioner has primarily concentrated for relief prayed in paragraph 1(i) by taking a plain and simple plea that in the Health Department under the circular issued in the year 1970-72 there was no concept for the Nurses, L.H.Vs. and A.N.Ms. to pass hindi noting and drafting examination inasmuch as their job did not require any duty of noting and drafting. In fact, the authorities of the Health Department had kept on giving annual increment to each and every employee including nurses on that very premises and it is only subsequently, in 3 view of the audit objection that the recovery was started from all such persons who had been given increments without passing Hindi Noting and drafting examination. In this context, he would submit that as soon as the petitioner came to know of the audit objection, she had appeared in the hindi noting and drafting examination and had also passed the same way back in the year 1994 much before the order of actual recovery. He also points out that the Director-in-Chief of the Health Services in fact had gone to clarify this aspect only in Circular dated 5.5.2005 that earlier 1970 Circular of the Health Department creating an impression of no requirement of passing hindi noting drafting examination by the L. H. V, Nurses and A. N. M. were withdrawn but then that too had only prospective effect. He would therefore submit that an amount of Rs.16737/- from the salary of the petitioner should not be allowed to be recovered specially when this Court by an interim order dated 5.8.2003 had restrained the respondents from making any recovery. Counsel for the State on the other hand placing reliance on 1968 rules framed under proviso to Article 309 would submit that no circular of the Health Department 4 was capable of amending statutory provisions and therefore if by mistake on the part of the authority the petitioner had been given the benefit of annual increment, contrary to 1968 Rules, the petitioner would be liable to refund excess amount of salary drawn by her as she was not entitled to get increment in the period she had not passed the hindi noting and drafting examination i.e. 1980- 1994. Counsel for the State therefore has submitted that the petitioner is still bound to refund Rs.16737 which in his view is excess amount drawn by the petitioner. In the opinion of this Court, the petitioner cannot be said to be at fault in getting her increment, specially as noted above there was also an impression on the mind of the authorities that nurses, L. H. V and A. N. M etc. were never required to pass hindi noting and drafting examination. The very fact that even the Director Health Services had ultimately gone to issue circular only on 5.5.2005 to this effect by itself would be demonstrative of the fact that the authorities of the Health Department were not sure or aware of the applicability of 1968 Rules for the post of nurses, L.H.V., A. N. M., etc. In that view of the matter as there was no 5 misrepresentation on the part of the petitioner nor she had played any fraud in getting annual increment, she could not even be subjected to order of recovery specially when she also already passed the departmental Hindi Noting and Drafting examination in the year 1994. Reference in this connection may be made to the judgment of Apex Court in the case of Syed Abdul Quadir and others vs. State of Bihar and Ors., reported in (2009) 3 S.C.C. 475. Considering all these aspects, this Court would quash that portion of the impugned order as contained in Annexure- 4 where the observation had been made for recovery of Rs.16737/- from the petitioner for not passing the Hindi Noting and drafting examination. As noted above, in view of the interim order passed by this Court such recovery could not have been done from the petitioner and therefore respondents are now hereby permanently restrained from making any recovery on this head. That being so, this writ application to the extent indicated above is allowed. kanchan/- (Mihir Kumar Jha, J.)