IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7812 of 2005 LAXMI NARAYAN SINGH Versus THE STATE OF BIHAR & ORS ----------- 05/ 31.03.2010 Heard Mr. B.K. Shukla, learned counsel for the petitioner, Mr. Abhay Kumar Sinha (Kundan) for the Zila Parishad and Mr. Arun Kumar Chongdar assisting counsel to A.A.G. 2 for the State. The petitioner superannuated from the post of Accountant-cum-Head Clerk while serving the Zila Parishad, Muzaffarpur w.e.f. 30.11.2004. Upon non-payment of the post retiral and other dues, this writ petition came to be filed for a direction to the authorities of the Zila Parishad for making payment of the post retiral dues and other dues as set out in paragraph-10 of the writ petition. Admitted position is that the entire post retiral dues has been paid to the petitioner during the pendency of the proceedings save and except that a recovery has been effected under the orders of Chief Executive Officer, Zila Parishad contained in Memo No. 63SA dated 28.6.2007 as contained in Annexure-D of the counter affidavit filed on behalf of the Zila Parishad, issued in the light of the objection raised from the office of the Accountant General dated 28.4.2005 placed at Annexure-2 to the writ petition. The objection raised by the Accountant General shows that 20 per cent special pay granted to the petitioner in the light of the provisions - 2 - of Rule 103 of the Bihar Service Code was not admissible to him in absence of approval granted by the State Government. Learned counsel for the petitioner submits that following the said objection the respondent Chief Executive Officer in a mechanical order has directed a recovery of Rs. 1,19,225/- under the orders dated 28.6.2007 impugned at Annexure-D said to be 20 per cent special pay drawn by him for the period 1.4.1996 until 31.10.2003. Learned counsel while assailing the legality of the orders under which the recovery was effected, has filed a supplementary affidavit placing on record resolution of the department of Rural Reconstruction and Panchayati Raj, Government of Bihar contained in Memo No. 5987 dated 14.7.1981 prescribing the pay-scale for employees of Zila Parishad. Learned counsel, with reference to the post appearing at serial no. 14 thereof, submits that the post of Accountant-cum- Head Clerk in the Zila Parishad carried an additional 20 per cent special pay under the resolution of the State Government itself and which is evident from the enclosure to the resolution. He submits that in the light of the said resolution the petitioner started drawing 20 per cent special pay in addition to his regular pay with effect from 1981 until 31.10.2003 whereafter it was stopped without there being any positive orders passed in this regard. It is stated that thereafter the respondent authority of the Zila Parishad did - 3 - not pursue the matter and it is only when the petitioner filed the present writ petition that the impugned order placed at Annexure- D dated 28.6.2007 was issued by the Chief Executive Officer, Zila Parishad, Muzaffarpur directing recovery of 20 per cent special pay drawn by the petitioner for the period 1.4.1996 to 31.3.2003 amounting to Rs. 1,19,225/- from the gratuity amount admissible to the petitioner. This action of the Chief Executive Officer has been assailed by the petitioner. Having regard to the enclosure to the resolution dated 14.7.1981 it is manifest that the post of Accountant-cum-Head Clerk indeed carry a pay-scale having an additional 20 per cent special pay. In that view of the matter, there was no infirmity in the petitioner drawing his salary attached to the post of Accountant-cum-Head Clerk together with 20 per cent special pay. The objection raised by the Accountant General placed at Annexure-2 requiring approval of the State Government becomes misconceived for the reason that the pay-scales designed in the Zila Parishad was in the light of the resolution of the State Government itself in its department of Rural Reconstruction and Panchayati Raj. In that view of the matter, there was no requirement for the Zila Parishad to have sought any approval from the State Government. The action of the Chief Executive Officer in blindly following the objections of the Accountant General and directing recovery is also arbitrary exercise of power and cannot be upheld. - 4 - In that view of the matter, the order bearing Memo No. 63SA dated 28.6.2007 (Annexure-D) is set aside. The respondents are directed to remit the amount of Rs. 1,19,225/- to the petitioner within a period of three months from the date of production of a copy of this order. The petitioner, if so advised, may represent before the authority for payment of his 20 per cent special pay for the period 1.11.2003 until the date of his retirement on 30.11.2004 in view of the aforesaid position and which should be considered and disposed of in accordance with law. The writ petition is disposed of with the direction aforesaid. S.Sb/- (Jyoti Saran, J.)