Sanju Devi vs The State Of Bihar
2023 Latest Caselaw 4119 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.15874 of 2022
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Sanju Devi wife of Late Surendra Kumar Resident of Maranpur, Braham Sthan, Naili Road, Gaya-823001.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The Principal Secretary Human Resources Department, Bihar, Patna.

3. The Accountant General, Birchand Patel Path, Bihar, Patna.

4. The District Programme Officer (Establishment) Gaya.

5. The District Education Officer, Gaya.

6. The Headmaster-cum-D.D.O. Middle School Bodhgaya, Gaya.

7. Treasury Officer, Gaya, District- Gaya.

8. District Provident Fund Officer, Gaya, Bihar.

9. Director, Provident Fund, Bihar, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Prakash Chandra Gupta, Advocate For the State : Mr. Madhaw Pd. Yadaw, GP-23 Ms. Meera Singh, AC to GP-23 For the A.G. : Mr. Ram Kinker Choubey, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 29-08-2023 Heard Mr. Prakash Chandra Gupta, learned

counsel appearing on behalf of the petitioner; Mr. Madhaw

Prasad Yadaw, learned GP-23 assisted by Ms. Meera Singh,

learned AC to GP-23 appearing on behalf of the State and

Mr. Ram Kinker Choubey, learned counsel for the

Accountant General, Bihar.

2. The instant writ petition has been filed by the

petitioner (Smt. Sanju Devi W/O Late Surendra Kumar) to Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

quash the office order dated 26.08.2022 issued by District

Programme Officer (Establishment), Gaya by which the

Treasury Officer, Gaya was instructed to deduct Rs.

7,21,874/- from the total amount of Rs. 20,00,000/-

authorised to her in gratuity.

3. Learned counsel appearing on behalf of the

petitioner submitted that the Accountant General Office has

issued authority of pension and gratuity in favour of the

petitioner vide Authority No.

pen280622102662/202212102067p0 in the light of sanction

order no. 801 dated 13.06.2020 received from District

Programme Officer (Establishment) Gaya. So far as the

matter of encashment of un-utilised earned leave is

concerned it is to mention that to make payment of Rs.

8,90,800/- on account of un-utilised earned leave is an

administrative matter and related to the concerned

department. Payment of amount of group insurance is also

concerned with the department. The respondent has written

a letter to the concerned department raising the grievances

of the petitioner vide letter no. PENSION-10/2022-23/2430

dated 15.12.2022 and requested to inform the office of Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

answering respondent if it needs to be acted upon regarding

the petition.

4. Learned counsel further submitted that the

respondent no. 4 has admitted in the counter affidavit that

the husband of the petitioner had died in harness on

26.12.2021 and it was on account of erroneous fixation of

payment which was detected on 08.03.2019 that from

21.09.2006, the petitioner was paid higher on account of

incorrect fixation of pay scale and proceeded to recover

from the gratuity of the petitioner in the year 2022 after a

delay of nearly 18 years. He specifically submitted that no

action was taken against the deceased employee while he

was in service. Admittedly, the respondent/s for such illegal

act has taken plea that in compliance of the resolution no.

8921 dated 07.12.2018 and in accordance with the Finance

Department Letter No. 577 dated 10.11.2020, the excess

payment was required to be made from the pensionary

benefit and the same has been deducted. He further

submitted that the circular which has been taken as an aid to

deduct from the gratuity payable to the deceased employee

was not applicable during the period the alleged excess Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

amount was paid to the petitioner on account of salary. He

further submitted that law is well settled in this regard that

the employees can be penalized for their fault when they

have misrepresented or misappropriated any government

money, but not in the case as is one in which case the

authorities themselves have realised that due to incorrect

fixation of pension on account of excess pay scale given to

the husband of the petitioner on account of senior selection

grade and also minimum stage under schedule 2 to the

teacher of Rajyakrit School, the respondents are themselves

responsible for that.

5. Learned counsel appearing on behalf of the

State submitted that the objection was raised by the

Accountant General, Bihar and after that the authorities had

proceeded to take action for deducting amount of Rs. 7, 21,

874/- from the gratuity of the petitioner. The petitioner is

being regularly paid pension without fail each month,

however, the State should not be made to suffer financially

on account of incorrect fixation of pension.

6. Having heard the rival submission made on

behalf of the parties. The husband of the petitioner had died Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

in harness in the year 2021. It is admitted by the

respondent/s that pay scale was fixed, in the year 2006, on

account of giving the benefit of senior selection grade to the

petitioner due to stagnation on the same post and the

authorities have realised that the benefit granted is also not

in accordance with the several circular of the State

Government which has been issued much later to the year

2006 as would appear from 'Annexure- A and B' to the

counter affidavit filed on behalf of the State. Any benefit

which has been granted as a result of financial upgradation

by giving the benefit of selection grade cannot be treated to

be the regular promotion. The order of recovery in such

cases has been treated to be illegal and misconceived by the

Apex Court in case of Amresh Kumar Singh vs. State of

Bihar reported in (2023) SCC OnLine SC 496. The

respondents have also admitted that petitioner has not

misrepresented or misappropriated any government money

rather the authorities have accepted that the incorrect

fixation has been done on the part of the concerned

respondent. This Court finds that no recovery can be made

from the gratuity after lapse of more than 18 years, the Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

benefit which was granted to the deceased employee in the

year 2006. In this regard, reliance can be placed on the

judgment of the Apex Court as decided in the case of Sahib

Ram v. State of Haryana, reported in 1995 Supp (1) SCC

18, wherein it was held as follows:

"5. ... Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

7. Accordingly, order contained in Letter dated

26.08.2022 communicated by the District Programme

Officer (Establishment), Gaya is set aside.

8. The District Programme Officer

(Establishment), Gaya is directed to forthwith return back

entire amount of gratuity, which has been recovered from

the petitioner within a period of four weeks from the date of

communication of this order, without delay.

Patna High Court CWJC No.15874 of 2022 dt.29-08-2023

9. In case, the petitioner finds that the District

Programme Officer (Establishment), Gaya, delays the

matter in returning back the amount of gratuity which has

been recovered in any manner beyond the period of four

weeks, the petitioner is at liberty to take appropriate legal

action against the District Programme Officer

(Establishment), Gaya, in accordance with law.

10. With above observation and direction, the

present writ petition is disposed of.

                                                 (Purnendu Singh, J)
Niraj/Nilmani
AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          30.08.2023
Transmission Date       N/A