Patna High Court
Kumar Devendra Singh vs The State Of Bihar on 8 May, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.15486 of 2023
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Kumar Devendra Singh, S/o Late Fateh Bahadur Singh, R/o Village-Kodari,
singarpur, P.S.-Khanpur, District-Ghazipur, Uttar Pradesh.
... ... Petitioner
Versus
1. The State of Bihar through the Additional Chief Secretary-cum-Principal
Secretary, Department of Finance, Bihar, Patna.
2. The Additional Chief Secretary-cum-Principal Secretary, Department of
Finance, Bihar, Patna.
3. The Additional Chief Secretary, Department of Home (Police), Bihar, Patna.
4. The Deputy Secretary, Department of Home (Police), Bihar, Patna.
5. The Director General and Inspector General of Police, Bihar, Patna.
6. The Additional Director General and Inspector General of Police, Special
Branch, Bihar, Patna.
7. The Inspector General of Police, Headquarter, Bihar, Patna.
8. The In-charge Officer, Finance (Personal Claim Redressal Cell) Department,
Government of Bihar, Patna.
9. The Superintendent of Police, Araria.
10. The Superintendent of Police (A), Special Branch, Patna.
11. The Treasury Officer, Araira.
12. The Accountant General (A & E), Bihar.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Sanjeev Ranjan, Advocate
Mr. Maruth Nath Roy, Advocate
For the Respondent/s : Md. Harun Quareshi, AC to SC 1
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date: 08-05-2025
Heard the parties.
2. The petitioner, who superannuated from the post of
Sub-Divisional Police Officer (S.D.P.O.), Araria on 31.03.2020
after completing more than 35 years, has invoked the
jurisdiction of this Court on being aggrieved with Memo No.
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
2/13
959(23) dated 31.08.2022 (Annexure-P-7), whereby it has been
informed that by the order no. 82/2022 read with Memo No.214
dated 27.10.2022 (sic) the pay of the petitioner has been
modified for non-gazetted period resulting into fresh fixation
and slashing down the last pay drawn by the petitioner @
Rs.96,900/- and further it has been held that the petitioner is
entitled to get only a sum of Rs.11,72,490/- instead of
Rs.12,07,580/- towards the earned leave of 300 days and thus a
sum of Rs.35,090/- has been directed to be recovered from the
petitioner. The petitioner also sought quashing of the Memo No.
960(23) dated 31.08.2022 (Annexure-P-8), by which Memo
No.300 (23) dated 12.02.2020 has been modified fixing basic
pay of the petitioner @ Rs.96,900/- on 01.07.2019 as also
quashing of the Memo No.10376 dated 25.08.2023 (Annexure-
P-12), whereby the Additional Chief Secretary, Department of
Home (Police), Bihar, Patna, rejected the representation of the
petitioner by a reasoned order.
3. The short matrix of the case is that the petitioner
was duly appointed as a Sub-Inspector of Police (Direct Recruit)
in the year 1984 and subsequently promoted as Inspector of
Police in the year 2007. On being found eligible for promotion,
the petitioner was promoted in the rank of Deputy
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
3/13
Superintendent of Police on 31.12.2016. In view of the
satisfactory service record, the petitioner was extended the
benefit of 1st ACP w.e.f. 09.08.1999 and further the benefit of 2nd
ACP after completion of 24 years w.e.f. 15.06.2008. The benefit
of 3rd ACP was conferred after completion of 30 years of service
w.e.f. 15.06.2014. In view of the pay fixation commensurate to
the pay revision, the pay of the petitioner was fixed vide Memo
No.66 dated 14.01.2019 (Annexure-P1) issued under the
signature of the Superintendent of Police, Araria. Finally, the
petitioner came to be superannuated on 31.03.2020 with basic
pay @ Rs.99,800/- as on 01.07.2019 while working as S.D.P.O.,
Araria.
4. Based upon the aforesaid fixation of pay, the
Superintendent of Police, Araria sanctioned pension and other
retiral benefits to the petitioner vide Memo No.287 dated
13.04.2020
. Accordingly, Pension Payment Order was issued on
24.06.2020 fixing basic pension @ Rs. 49,900/- against the last
basic pay drawn i.e. 99,800/-. Pursuant thereto, all the retiral
benefits of the petitioner were paid accordingly.
5. Adverting to the aforesaid facts, Mr. Sanjeev
Ranjan, learned Advocate for the petitioner contended that
notwithstanding the payment of all the retiral benefits and the
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
admissible dues as well as the fact that the petitioner had been
getting regular pension, in the meanwhile, one Syed Afsar
Hashmi moved this Court by filing C.W.J.C. No.3110 of 2021
claiming parity with the petitioner in respect of payment of last
basic pay drawn. The writ petition came to be dismissed as
withdrawn vide order dated 22.03.2022 with liberty to file
representation but surprisingly enough and rather unfortunate
that the respondent came out with impugned Memo No.959(23)
dated 31.08.2022 stating therein that salary of the petitioner
came to be modified by the Superintendent of Police, Special
Branch, Bihar, Patna vide order no.82/2022 read with Memo
No.214 dated 27.10.2022 holding the petitioner to be entitled for
last basic pay drawn @ Rs.96,600/-. Based upon the aforesaid
letter(s), a fresh calculation has been made and direction has
been issued to recover the amount of Rs.35,090/- from the
unutilized earned leave of the petitioner; and this led to issuance
of consequential orders, which are also put to challenge before
this Court.
6. The primary contention of the learned Advocate for
the petitioner, while assailing the impugned orders, is based
upon the principle that no person can be condemned unheard.
Before issuance of the impugned orders, the petitioner has
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
neither been served with any show-cause notice or extended
opportunity of hearing. Fixation of basic pay as also
consequential re-fixation based upon revision of pay-scale and
grant of ACP do not suffer from any infirmity. All the more, the
pay-scale of the petitioner was fixed in accordance with Memo
No.630 dated 21.01.2010 issued by the Finance Department,
Bihar, which exclusively deals with revision of pay-scales of the
State Government employees w.e.f. 01.01.2006. The Police
Headquarter, directed the Special Branch to examine the issue of
grant of 2nd, 3rd ACP and MACP and after proper examination
and upon verification of the service book of the petitioner at the
level of the Finance Department, pension of the petitioner was
fixed. During the process of verification, at no point of time, any
error was pointed out.
7. On the afore-noted grounds, the petitioner
questioned the legality of Memo No.959(23) dated 31.08.2022
by filing C.W.J.C. No. 14794 of 2022, which was disposed off
vide order dated 02.05.2023 with liberty to the petitioner to file
a detailed representation before the Additional Chief Secretary,
Department of Home (Police), Government of Bihar, Patna. In
pursuant to the liberty, the petitioner submitted a detailed
representation, but to no respite; the same came to be rejected
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
without considering the fact that other identically situated
persons and even junior to the petitioner were getting their
pension and other benefits on the basis of last basic pay drawn
@ Rs.99,800/-, this led to filing of the present writ petition.
8. It would be pertinent to note here that this Court
considering the specific contention of the petitioner that the
persons who are either identically situated and juniors to the
petitioner have been allowed the benefit by fixing their last
basic pay @ Rs.99,800/-; vide its order dated 15.01.2024
directed the respondents to respond to the specific averments on
the point of discrimination alleged to have been caused to the
petitioner.
9. In compliance with the order of this Court, a
counter affidavit has been filed with an averment that there is
specific distinction in the cases relied upon by the petitioner as
mentioned in the Special Branch Order No.617/2015. It is
informed that upon grant of 2nd ACP benefits, pay of the
petitioner was fixed in Grade Pay of Rs.5400/- w.e.f. 04.08.2009
whereas the batch mates of the petitioner were getting the
benefits of 2nd ACP w.e.f. 15.06.2008 and it is for this reason the
pay of the petitioner was less than his batch mates under Special
Branch Order No.617/2015. It is also stated that the punishment
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
of censure was also imposed upon the petitioner by the appellate
authority in Departmental Enquiry No.52 of 1997 relating to
Jehanabad District and accordingly Special Branch Order No.
617/2015 was modified by Special Branch Order No.1571/2016.
10. The learned Advocate for the State, while
supporting the impugned action and the orders of the
respondents, has contended that since the date of retirement
dates of other police personnels are different from the date of
retirement of the writ-petitioner; hence, after making
amendment in Departmental Order No.617/2015, fresh order
was issued. It is further submitted that the department while
considering the representation of Syed Afsar Hashmi came to
know that the pension of the writ-petitioner was fixed higher to
his entitlement based upon wrong fixation of pay, thus an
amendment was made in pension of the present writ-petitioner.
Since there was an apparent error in the fixation of pay; hence,
it was incumbent upon the department to make necessary
correction for the ends of justice. In sum and substance, it is the
contention of the learned Advocate for the State that the claim
of the petitioner is wholly misconceived and unsustainable and
no discrimination has been caused.
11. After giving careful consideration to the
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
submissions advanced and on perusal of the materials available
on record, this Court finds that the contention of the respondent-
State Authorities does not substantiate in law as well as on facts.
12. The very grounds of issuance of the impugned
orders is said to be are in two folds; firstly, the claim of the
petitioner is not based upon parity and the persons who are said
to have been accorded pensionary benefits by fixing their last
basic pay @ Rs. 99,800/- are having different dates of
appointment and they have been extended the benefits of ACP
on different dates; secondly the petitioner was inflicted with the
punishment of censure.
13. Bare perusal of Departmental Order
No.1571/2016, which is said to have been issued after making
amendment in previous Departmental Order No.617/2015, it
appears that the persons with whom the petitioner sought parity,
their pay was invariably fixed @ Rs.34,220/- as on 01.07.2016
at par with the petitioner. The claim of the petitioner that one Sri
Raj Kumar Sinha, who is also having same date of birth, date of
appointment and date of superannuation, his pay was fixed @
Rs.99,800/- as on 01.07.2019 vide Office Order No.966/2015
contained in Memo No.1030 dated 07.07.2015. Both Sri Raj
Kumar Sinha and the petitioner belonged to 1984 Batch and it
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
has not been clarified as to why and how Sri Raj Kumar Sinha
has been extended the benefit of pension based upon his last
pay @ Rs.99,800/- whereas in case of the petitioner it came to
be reduced to Rs.96,900/-.
14. The reliance of the petitioner with the case of
other identically situated person also finds substance that it has
not been clarified the position by the respondent(s) that under
what circumstances, all the persons appointed along with the
petitioner in the year 1984 as well as the persons appointed in
the year 1985 as Sub-Inspector of Police (Direct Recruit) and
were promoted as Dy. S.P., are being paid their pension and
other benefits on the basis of pay of Rs.99,800/-.
15. So far the grounds raised by the respondent(s)
regarding inflicting punishment of censure upon the petitioner
and thereby he has been deprived of one increment is
concerned, it also does not find substance in absence of any
rules and regulations, which deprives a person to get such
benefit.
16. So far the effect of censure is concerned, even
under the Bihar Police Manual, it is dealt under rule 838 as
minor punishment, which shall be entered into service book,
preceded by following the principles of natural justice. There is
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
no reference under the Bihar Police Manual that in any
circumstances, the censure entails withholding of increment.
17. Even under the Bihar Government Servants
(Classification, Control & Appeal) Rules, 2005 (for brevity 'the
Rules, 2005'), censure comes under the category of minor
penalties under Rule 14. [Explanation (2). of Rule 14 of the
Rules, 2005 made it clear that the censure shall be entered in the
character roll of the year the allegation or omission and
commission. The adverse effect of censure on the confirmation
and promotion of concerned Government Servant shall be for
next three consecutive years after the year of allegation or
omission and commission for which he or she is censured.
18. From the Explanation noted with the Rule 14, it
appears that the censure in no manner affect the increment of an
employee. Withholding of increments of pay without cumulative
effect is a separate minor punishment whereas withholding of
increments of pay with cumulative effect is a major punishment,
as specifically defined under the afore-noted Rule.
19. This Court also finds substance in the submission
of the learned Advocate for the petitioner based upon the
decision of the Apex Court in the case of Jagdish Prasad Singh
v. State of Bihar and Others [(2024) AIR (SC) 3950], wherein
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
the Court was pleased to hold that any step of reduction in the
pay-scale and recovery from a Government employee would
tantamount to a punitive action because the same has drastic
civil as well as evil consequences. The Apex Court while
examining the order of the learned Single Judge as well as the
learned Division Bench of this Court, has held that the order(s)
seem to have fallen in error, inasmuch as no such action could
have been taken against the appellant, more particularly,
because he had been promoted as an ADSO, while drawing the
pay-scale of Rs.6500-10500 applicable to the post way back on
10.03.1991 and had also superannuated eight years ago before
the recovery notice dated 15.04.2009 was issued. The Court
further held that the impugned order directing reduction of pay-
scale and recovery of the excess amount is grossly arbitrary and
illegal and also suffers from the vice of non-adherence to the
principles of natural justice and hence, the same cannot be
sustained.
20. This Court also finds that there is no allegation of
fraud or misrepresentation on the part of the petitioner and even
if for the sake of argument, it is assumed that there was certain
discrepancies, it was not attributed to the petitioner and, as such,
no recovery can be made after the superannuation of the
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
petitioner.
21. The Hon'ble Apex court taking note of the
previous judgments on the issue of recovery from the employees
who are either superannuated or likely to be superannuated
within a year has unequivocally held in the case of State of
Punjab & Ors. v. Rafiq Mashi [(2015) 4 SCC 334] that
recovery would be iniquitous and arbitrary, if it sought to be
made after the date of retirement, or soon before retirement. A
period within one year from the date of superannuation, should
be accepted as the period during which the recovery should be
treated as iniquitous. Therefore, it would be justified to treat an
order of recovery, on account of wrongful payment made to an
employee, as arbitrary, if the recovery is sought to be made
after the employee's retirement, or within one year of the date of
his retirement on superannuation.
22. The aforesaid legal proposition has been reiterated
in the case of Thomas Daniel v. State of Kerala and Others
[(2022) SCC OnLine SC 536], wherein the Hon'ble Supreme
Court ruled that the State cannot recover excess amount paid to
the ex-employee after the delay of 10 years.
23. On all the counts, this Court finds merit in the writ
petition and accordingly the impugned orders as contained in
Patna High Court CWJC No.15486 of 2023 dt.08-05-2025
Memo No. 959(23) dated 31.08.2022 as also the Order No.
82/2022 read with Memo No.214 dated 27.10.2022 (sic) and
further Memo No.960(23) dated 31.08.2022 and Memo
No.10376 dated 25.08.2023 to the extent it modified the basic
pay and consequential fixation of pension and other benefits of
the petitioner are hereby held to be unsustainable and
accordingly they are set aside.
24. The respondents are directed to restore the basic
pay and pension of the petitioner as was done prior to the
issuance of the impugned orders, preferably within a period of
twelve weeks from the date of receipt/production of a copy of
this order. Recovery, if any, effected during interregnum period
shall also be restored.
25. The writ petition stands allowed.
(Harish Kumar, J)
rohit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 17-05-2025
Transmission Date
