IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5889 of 1998 Damyanti Devi Jha, Wife of Sri Kanak Lal Jha, Assistant Teacher, Achchu Ram Girls Middle School, Jamalpur, Dist. Munger. ------- Petitioner Versus 1. The State of Bihar. 2. Director of Primary Education, Government of Bihar, New Secretariat, Vikash Bhawan, Patna. 3. Deputy Secretary, Finance Department (Pay Fixation), Govt. of Bihar, Patna. 4. District Superintendent of Education, Munger, At P.O. & District Munger. 5. Head Mistress, Achchhu Ram Girls Middle School, Jamalpur, P.S. Jamalpur, Dist. Munger. --------- Respondents ----------- 5 25.7.2011 No one appears on behalf of the petitioner. Counsel for the State is present. Having regard to the fact that the recovery proposed against the petitioner by the impugned order dated 6.3.1998 has remained stayed till date and that the petitioner came to be appointed on 10.7.1962, this Court would find it difficult to allow the impugned order to continue against her, which was passed after her retirement from service and that too without show-cause notice and/or opportunity of hearing and thus, this Court would quash the order so far it seeks to recover any excess amount allegedly paid to her. There being no case made out by the respondents either in the 2 impugned order or in the counter affidavit of the petitioner getting such excess amount due to any misrepresentation or fraud made by her, this Court would not find her liable to refund the amount, which was already paid to her on the specific order of the authorities of the Education Department. The Finance Department to that extent may be correct that the entitlement of the petitioner for the purpose of retirement benefit may always be remodeled on the basis of the pay-scale to which the petitioner was entitled but, then, on that basis, the petitioner cannot be saddled with the consequence of recovery of amount from her post retirement benefit. That being so, the impugned order is quashed and the respondents are given liberty to re-fix the salary of the petitioner for calculation of her post retirement benefit. It is, however, made clear that any post retirement benefit already made to her will not be subjected to recovery and that the petitioner can only be subjected to any reduction of pension on the basis of such re- calculation of her salary. It is also made clear that before doing so, the respondents 3 will be under obligation to give show-cause notice and/or opportunity of hearing to the petitioner. At this stage, AAG-9 would submit that the Government had power to recover the amount in view of the undertaking given by the petitioner. Such submission of the learned AAG-9 is only noted for its being rejected, inasmuch as, that part of pension in the form that has to be signed by every pensioner is a routine declaration and is made as with regard to the sharing of the liability but, that will not mean that an amount, which was paid during the service period and that too under the valid order of the authority, will be subjected to recovery after the person retires. Considering all these aspects, this Court would find that the impugned order cannot be sustained in law and, is accordingly quashed. This writ application to the extent indicated above is allowed with the aforementioned observations and directions. Rsh (Mihir Kumar Jha, J.)