IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7328 of 2006 ASHA DEVI wife of late Ram Chandra Choudhary, R/O village Dewan, P.S. Parsauni, District-Sitamarhi.— Petitioner. Versus 1. THE STATE OF BIHAR 2. The District Superintendent of Education, Sitamarhi 3. The Senior Account Officer, Bihar,Partna 4. The Accountant Genera, Bihar, Patna.—Respondents. --------- For the petitioner : Mr. S.M.Nematullah Mr. Md.Anisur Rahman For the State : Mr. Ravi Verma, For Accountant General : Mr. S.M. Ehtasham, Additional Standing Counsel O r d e r 4. 04.11.2009. Heard learned counsel for the parties. With consent of the parties this matter has been taken up for disposal at the state of Admission itself. The petitioner is the widow of late Ram Chandra Choudhary, who died in harness on 21.7.2001 while serving on the post of Head Master. The petitioner filed the present writ petition assailing the legality of the order dated 19.12.2001(Annexure-2) issued by respondent no.3 the Senior Account Officer, Bihar, Patna in the office of the Accountant General, Bihar Patna 2 (respondent no.4), whereby a direction had been issued to recover the excess amount paid to the husband of the petitioner by way of increments for the period until 11.9.2000, from his post retiral benefits by reason of his not passing the Hindi Noting and Drafting Examination, hereinafter referred to as „the Examination‟ within a period of one year as required under the rules, rather having passed the same subsequently i.e. on 11.9.2000. A further prayer was made for payment of the entire post retiral benefits including family pension, gratuity and other amounts together with the interest at the rate of 18 %. A counter affidavit was filed on behalf of respondent no.2, i.e. the District Superintendent of Education, Sitamarhi and in which, it has been stated that in the light of the direction contained in Annexure-2, issued by the Sr. Accounts Officer in the Office of Accountant General a recovery statement had been prepared and the pension papers, recovery statement etc have been forwarded to the Accountant General, Bihar, Patna vide letter no.3218 dated 15.10.2009 (Annexure-A to the counter affidavit). It has also been stated that an excess amount of Rs.2,22,275/- 3 has been found recoverable from the post retiral benefits of the deceased employee which has been paid to him by way of increments during the period until he passed the Examination. The position as it stands today is that the entire admissible retiral benefits to which the petitioner has been found entitled has been paid except a sum of Rs.2,22,275/- which is sought to be recovered from the retiral benefits payable to the petitioner and in addition thereto, the petitioner has been denied full family pension which is only being paid provisionally w.e.f. 21.7.2001 and as such, she is entitled to the arrears thereof. The only issue which requires determination is as to whether there was any infirmity in the grant of increments to the late husband of the petitioner, who admittedly had passed the Hindi Noting and drafting Examination on 11.9.2000, i.e. prior to his death in harness and whether the order for recovery of the increments granted to him, is lawfully justified. Learned counsel appearing for the petitioner submits that the admitted position is that the husband of the petitioner had passed the 4 said examination and in support he places a letter bearing memo no.753 dated 11.9.2000 (Annexure-1). He further submits that the effect of passing the said examination has been considered by a Division Bench of this Court in the case of Bijay Bahadur vs. B.S.E.B. arising from C.W.J.C.No.1007 of 1997 and in which it has been held that no sooner an employee passes the said examination he becomes entitled to all the increments. He submits that the judgment of this Court was affirmed by the Supreme court in (2000) 10 SCC 99. It was submitted that the judgment rendered in the case of Bijay Bahadur has been followed in a bench decision of this Court rendered in C.W.J.C. No. 11243/2002(Jagat Narayan Prasad vs. B.S.E.B.) dated 26.3.2009. Learned counsel for the petitioner also assails the action of the authorities on grounds of being violative of the principles of natural justice inasmuch as the direction of the Accountant General as contained in Annexure-2 dated 19.12.2001 as well as the follow up action taken by the District Superintendent of Education in his letter dated 15.10.2009 (Annexure-A) is ex parte and without giving any opportunity of 5 hearing to the petitioner. He further submits that the said infirmity cannot be cured as the husband of the petitioner expired on 21.7.2001. Learned counsel thus submits and on either counts the action of the respondents and the orders impugned are unsustainable and are fit to be set aside. Learned counsel appearing on behalf of the State, with reference to a letter of the Finance Department dated 3.6.2003, submits that all the government employees except Class IV employees are required to pass the said Examination, failing which, they would not be entitled to any increment and, if any increment has been given, the same would not be legal. He further submits that the Head Masters have specifically been covered by the said circular and had to compulsorily pass the said examination. Learned counsel further submits that in terms of the relevant rules and circular on the issue, an employee becomes entitled to increments only consequent upon passing the said examination and not for the anterior period. He submits that as admittedly the petitioner passed his Hindi Noting and drafting examination on 11.9.2000, he 6 was not entitled to any increments for the period prior to 11.9.2000 and as such, the entire increments drawn by the deceased employee for the period until 11.9.2000, is recoverable from him. Learned counsel, in support of his submission, relied on a Bench decision of this Court reported in 2007 (supp) PLJR 1066. Learned Single Judge had relied upon a Division Bench judgment of this Court reported in 2006 (1) PLJR 286 (Chandra Shekhar Vrs. The Chairman, Bihar State Electricity Board and ors). Learned counsel thus submits that the orders warranting recovery is in accordance with law and requires no interference. I have heard the rival contentions of the parties and considered the materials on records and the judgments cited at bar. It is indisputed that the passing of the aforesaid examination is a one time exercise and is not in the nature of either a promotional examination or an efficiency test rather is a certification of language proficiency. Thus, the moment an employee passes the examination, he becomes entitled to all the increments whether received by him until that date or not and it 7 cannot be denied to him. The Division Bench of this Court, in the case of Bijay Bahadur (supra) has clearly held that the moment the employee passes the Hindi Noting and Drafting Examination, he becomes entitled to all the increments as if the stoppage had never taken place. The ratio flowing from the judgment is that the moment an employee passes the examination, the service benefits, whether or not withheld for the reasons aforesaid becomes admissible and payable to the said employee as if the stoppage never occurred. This means that stoppage of increments by reason of non passing of the examination is neither permanent nor is by way of penalty rather is merely kept in abeyance until passing of the examination by the employee concerned. The principle laid down in the case of Bijay Bahadur (supra) as upheld by the Supreme Court was followed by this court in a case arising from C.W.J.C.No.11249 of 2002 (Jagat Narain Prasad Vs. the Bihar State Electricity Board and ors) and analogous cases. The relevant part of the bench decision is reproduced for facility of quick 8 reference. “xxx In the said judgment the Division Bench also noticed the objection of the Board placing reliance on C.W.J.C.No.10975 of 1995 and distinguished the case on facts. Nonetheless, relying on the following passage at paragraph-12 of the same granted relief to the petitioner. “However, the stoppage of annual increments is not cumulative in effect. No sooner the person passed the examination he becomes entitled to the increments as if the stoppage of increments had never taken place and also entitled to all consequential benefits.” Judicial propriety requires this Court to be consistent and to follow the same. These writ applications are allowed with similar directions. It is ordered that no recovery of increments can be effected from the petitioners. The writ applications stand allowed.” The judgments rendered in the cases relied upon by the learned counsel for the State does not enter into the arena being the consequences arising from and the effect of passing the said examination. In fact this issue never came up for consideration nor was contested or tested by the Division bench in the case of Chandra Shekhar Vs. Chairman, Bihar State Electricity Board (supra). On the other hand, the judgment of the Division Bench rendered in the case of Bijay Bahadur and Narayan Singh (supra) is conclusive on 9 the issue as to the consequential effects on the service benefits of an employee who passes the said examination albeit belatedly and the Division Bench in no uncertain terms has held that withholding of an increment is only of a temporary nature to be released the moment the person passes the said examination. A decision on an issue is a binding precedent. The judgment rendered by the Division Bench of this Court in the case of Bijay Bahadur and affirmed by the Supreme Court in so far as the issue of consequences flowing from the passing of the Hindi Noting and drafting examination is concerned, fully covers the issue in hand. Following the ratio laid down in the case of Bijay Bahadur (supra) on the issue in question and followed in subsequent bench decision of this Court, the impugned order becomes unsustainable. In another similar matter arising from C.W.J.C.No.12181 of 2003 (Ram Binod Singh Vs. Bihar State Electricity Board & ors), this Court, relying upon several judgments of the Supreme Court vide order passed on 21.7.2009 held the recovery unsustainable in law for the reasons that the petitioners of the said cases had no hand in 10 getting the increments and had admittedly passed the said examination, may be belatedly. The impugned action thus, also cannot be upheld as it is in clear violation of the principles of natural justice. Admittedly, no show cause was issued to the petitioner‟s husband during his lifetime and the defect cannot be cured now. It needs no reference to a judicial pronouncement that no proceeding can be held against a dead person. Thus the writ petition succeeds even on this score. In the result, this writ petition is allowed. The direction of the Accountant General, Bihar Patna as contained in the letter dated 19.12.2001 (Annexure-2) and the follow up action taken by the District Superintendent of Education as contained in Annexure-A vide letter dated 15.10.2009 are set aside and any process for recovery is also quashed. The respondents are directed to process the case of the petitioner for fixation of her family pension, gratuity and other post retiral benefits as admissible to her on the basis of the last salary drawn by her deceased husband 11 inclusive of the increments earned by him and after recalculation make payments of the same together with its arrears. The said exercise is to be completed within a period of four months from the date of receipt/production of a copy of this order. The writ petition is allowed with the direction aforesaid. ahk (Jyoti Saran,J.)