IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7923 of 2004 Smt. Lalmati Devi, W/o-Brahmdeo Das, S/o-Late Gokhul Das, R/o-Vill.- Dharampur, P.O.-Sasaur, P.S.-Sarmera, District-Nalanda (Bihar). –Petitioner. VERSUS 1. The State of Bihar through the Commissioner-cum-Secretary, Department of Primary Secondary and Adult Education, Government of Bihar, Patna. 2. Director, Primary Education, Government of Bihar, Patna. 3. District Superintendent of Education, Patna. 4. Accountant General, Bihar. –Respondents. ----------- 07 18.04.2011 The present petitioner is the wife of Late Brahmdeo Das, who was the original writ petitioner and died during pendency of the writ petition. The writ petition was filed challenging Annexure-3, the communication sent by the Accountant General to the District Superintendent of Education, Patna, informing him that so far as the petitioner is concerned he has been wrongly given promotion the senior selection grade and, as such, while finalizing accounts for the purposes of pension and other retiral benefits his correct pay scale be determined and recoveries made therefrom. Petitioner has sought to justify the fixation of pay scale and grant of senior selection grade. He submitted that the authority to grant senior selection grade with the District Superintendent of Education, who by his order dated 21.03.1991, had rightly granted the same to the petitioner with effect from 01.04.1984. Petitioner consequent to the aforesaid was granted the financial benefits which are now being sought to be recovered as well as the future benefit that has accrued. A counter affidavit has been filed by the State clearly stating that promotion as granted by the District Superintendent of Education was fraudulent inasmuch as senior selection grade is admissible to 12½% of the cadre strength, whereas the District Superintendent of Education granted the same in mass, which is not - 2 - permissible. Petitioner, in fact, was not entitled to the said selection grade. It is further stated that the District Establishment Committee in the year 1992 itself that is soon after the order of the District Superintendent of Education of granting scale have cancelled the decision of District Superintendent of Education but as the petitioner was the Headmaster and the drawing disbursing authority himself he continued to avail of the said benefit right up to the time of his superannuation. It is, thus, prayed that the actions as sought to be taken are fully justified. Mr. Banwari Sharma, learned counsel appearing for the petitioner submits that the petitioner cannot be penalized for fault committed by the District Superintendent of Education. He had made no fraudulent claim nor had made any misrepresentation. He further states that nowhere in the counter affidavit even it is contended that the decision of the District Establishment Committee was ever communicated to the petitioner or for that matter to the Treasury because for over 10 years petitioner continued to draw his remuneration on basis of the selection grade as that was granted without any objection from anywhere. He lastly submits that because of this dispute his pensionary benefits are yet to be paid and during pendency of this writ petition he has even died. There were no departmental proceedings initiated either before his superannuation or after his superannuation. He placed reliance on the judgment of the Apex Court in the case of Syed Abdul Qadir and others versus State of Bihar and others since reported in 2009(2) PLJR 74 (SC) wherein the Apex Court has noticed in paragraph-28 that the excess payments - 3 - were made wrongly but there was no misrepresentation or fraud on part of the Appellant and, therefore, the Apex Court was of the view that no recovery of amount that has been paid in excess to the teacher should be made. Mr. Banwari Sharma, learned counsel for the petitioner prays to the extent as above. Having considered the matter, in my view, there cannot be any doubt that the amount paid to the petitioner as senior selection grade was wrongly assessed and paid but at the same time it cannot be said that the petitioner was in any manner responsible for the same. Now, that the petitioner has superannuated and died and his pensionary benefits are being finalized, it could not be proper to permit any deduction on this count, but certainly it cannot be held that the petitioner is entitled to the said amount. The result is that while fixing pensionary benefits for the purposes of amounts to be paid, the same would be fixed after ignoring the grant of senior selection grade from 1984 but would be entitled to the same from the date as already determined by the office of the Accountant General being 19.07.1992. Now that the controversy has been concluded, it is expected that the Accountant General would, accordingly, fix retiral dues including pension and family pension and ensure its payment to the petitioner entitled thereto in accordance with law within three months from the date of production of a copy of this order before him. With the aforesaid observations and directions, the writ petition is disposed of. Trivedi/ (Navaniti Prasad Singh, J.)