Rambabu Singh vs The State Of Bihar
2023 Latest Caselaw 5190 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.10960 of 2021
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Rambabu Singh Son of Chandeshwar Singh, resident of Village and P.O. Bharwari, via- Silaut, P.S.- Silaut, Dist. - Muzaffarpur.

... ... Petitioner/s Versus

1. The State of Bihar through Principal Secretary, Public Health Engineering Department, Government of Bihar, Patna.

2. The Engineer-in-Chief-cum-Special Secretary, Public Health Engineering Department, Government of Bihar, Patna.

3. The Chief Engineer (Mechanical) Public Health Engineering Department Bihar, Patna.

4. The Regional Chief Engineer (Mechanical) Public Health Engineering Department, Muzaffarpur.

5. The Superintending Engineer Public Health Engineering Department Mechanical Circle, Muzaffarpur.

6. The Executive Engineer Public Health Engineering Department Mechanical Division, Muzaffarpur.

7. Treasury Officer, Muzaffarpur.

8. The Accountant General, Bihar, Patna.

9. The Secretary (Expence), Department of Finance, Govt. of Bihar, Patna.

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

     For the Petitioner/s   :      Mr. Sunil Kumar, Advocate
     For the Respondent/s   :      Mr. Lalit Kishore, AG
     For the A.G.           :      Mrs. Ritika Rani, Advocate
     For the State          :      Mr. Arvind Ujjwal, SC-4
                            :      Mr. Upendra Pratap Singh, AC to SC-4

====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 09-10-2023

Heard Mr. Sunil Kumar, learned counsel appearing

on behalf of the petitioner, Mrs. Ritika Rani, learned counsel

appearing on behalf of the Accountant General, Bihar, Mr.

Arvind Ujjwal, learned SC-4 appearing on behalf of the State

and Mr. Lalit Kishore, learned AG appearing on behalf of the Patna High Court CWJC No.10960 of 2021 dt.09-10-2023

Respondent/s.

2. Learned counsel appearing on behalf of the

petitioner has informed this Court that the benefits of first ACP

was granted to the petitioner in the year 2006 and subsequently

the second ACP was granted to him in the year 2009 and letter

no.238 dated 13.06.2020, was issued and an amount of

Rs.7,32,487/- has been recovered from the gratuity amount of

the petitioner, without giving him any opportunity of hearing or

issuing any show-cause to him and neither any judicial

proceeding nor departmental proceeding is pending against him.

Learned counsel further submits that recovery can not be made

after incorrect fixation of pension in the light of Amresh

Kumar Singh & Ors. Vs. The State of Bihar & Ors. reported

in (2023) SCC OnLine SC 496.

3. Learned counsel appearing on behalf of the State

submits that the petitioner had not passed Departmental Account

Examination, which was necessary for higher pay scale and he

has relied upon the judgment of The State of Bihar & Ors. Vs.

Mahendra Baith reported in LPA No. 332 of 2017 and

Ramadhar Thakur Vs. State of Bihar & Ors. reported in LPA

No.599 of 2015 and State of Bihar & Ors. Vs. Shri Krishna

Singh & Anr. reported in LPA No.372 of 2019. Patna High Court CWJC No.10960 of 2021 dt.09-10-2023

4. Having heard the rival submissions made by the

parties, it appears to this Court that the recovery has been made

in misconceived manner from the Gratuity amount of the

petitioner without considering the fact that this Hon'ble Court,

as well as, the Apex Court have reiterated the object of the

scheme of ACP that financial benefit gained is on account of

stagnation not increase of regular promotion. In the present

case, petitioner has not passed the Departmental Examination,

an order of recovery of amount Rs.7,32,487/- from the gratuity

of the petitioner, has been passed on account incorrect fixation

of pay scale by granting financial benefit under ACP which was

given to the petitioner in the year 2006 and 2009 and not

because of any misappropriation or misrepresentation on the

part of the petition. It is alleged that the last pay drawn by the

petitioner was on the basis of calculation of incorrect pay scale.

The petitioner had retired on 31.01.2020, the pay scale of Rs.

44,900-1,42,400/- which was enhanced after giving benefit of

financial upgradation. The Apex Court in case of Amresh

Kumar Singh & Ors. (supra) has held that financial

upgradation can be treated to be promotion and as such for not

passing departmental examination, recovery after retirement can

not be made. The law relating to recovery from Class-III and Patna High Court CWJC No.10960 of 2021 dt.09-10-2023

Class-IV employees after retirement is no more res integra. In

the case of State of Punjab & Ors. Vs. Rafiq Masih (White

Washer) & Ors. reported in (2015) 4 SCC 334.

5. Accordingly, the present writ petition is disposed

of with a direction to the respondent to not to give effect to

order dated 13.06.2020 contained in Memo No.238.

Accordingly, recovery is stayed till the respondent no.1, the

Principal Secretary, Public Health Examination Department

passes a fresh order in accordance with law laid down by the

Apex Court within a period of 8 weeks on the basis of the

service records of the petitioner.

(Purnendu Singh, J.) Ashishsingh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          16.10.2023
Transmission Date       NA