Patna High Court
Sudha Mishra vs The State Of Bihar on 13 October, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8506 of 2024
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Sudha Mishra Wife of Late Avadhesh Kishor Misra Resident of Mohalla -
Morsand, Ward No. 12, P.S. Sitamarhi, District - Sitamarhi.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Public Health Engineering Department,
Government of Bihar, Bishweshwaraiya Bhawan, Bailey Road, Patna.
3. The Engineer-in-Chief-cum-Special Secretary, Public Health Engineering
Department, Government of Bihar, Bishweshwaraiya Bhawan, Bailey Road,
Patna.
4. The Chief Engineer, Public Health Engineering Department, Government of
Bihar, Patna.
5. The Superintending Engineer, Public Health Engineering Circle,
Muzaffarpur.
6. The Executive Engineer, Public Health Division, Sitamarhi.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vijay Kumar Singh, Advocate
For the Respondent/s : Mr. Government Pleader (13)
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 13-10-2025
Heard the learned counsel for the petitioner and the
learned counsel for the State.
2. The present writ petition has been filed on behalf of
the petitioner for the following relief(s):
(I). For issuance of an
appropriate writ in the nature of
certiorari for quashing the order dated
08.04.2020
passed by the Respondent
no.3 and contained in his letter no.581
dated 08.04.2020 whereby and where
under the Respondent no.3 has been
pleased to hold that Resolution No. 3972
dated 12.05.2016 and Resolution
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
No.7577 dated 23.09.2016 are not
applicable in the case of those employees
whose services has been regularized in
the year 2006 or later on from the work
charge establishment and they are only
entitled for the prescribed pay-scale and
financial progression with effect from
01.01.2006. By the said letter, the
Respondent no.3 also directed the
Authorities concerned to revise the salary
of those employees and to take needful
action in accordance with law.
(II) For issuance of an
appropriate writ in the nature of
mandamus, commanding and directing
Respondent no.6 to produce on record
the office order no.198 contained in
memo no.1871 dated 08.11.2023 issued
under the signature of the Respondent
no.6, so far it relates to the husband of
petitioner whereby and where under he
has been pleased to direct for recovery of
Rs.3.58.329/- from the retiral dues of the
husband of the petitioner which was
allegedly received by the husband of the
petitioner on the basis of earlier fixation
made by the Respondents and on
production the same may be quashed by
issuance of an appropriate writ in the
nature of CERTIORARI on the ground
that in view of the law settled by the
Hon'ble Supreme Court in the case of
Rafique Masih, no amount could be
recovered from the retrial dues of the 3
and 4" Grade employee.
(III) For issuance of an
appropriate writ in the nature of
certiorari for quashing the office order
no.205 dated 09.11.2023 contained in
memo no.1890 dated 09.11.2023 issued
under the signature of the Respondent
no.6 whereby and where under he
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
recovered the amount of Rs.3,58,329/-
from the earned leave of the husband of
the petitioner.
(IV) For issuance of an
appropriate writ in the nature of
mandamus, commanding and directing
Respondent Authorities to not alter the
earlier fixation of the husband of the
petitioner made by the Respondent no.6
in the light of the Resolution No.3972
dated 12.05.2016 and memo no.7577
dated 23.09.2016 issued by the Finance
Department Government of Bihar, Patna.
(V) For issuance of an
appropriate writ in the nature of
mandamus, commanding and directing
the Respondent Authorities to make
payment of all kinds of retiral dues to the
petitioner on the ground that the husband
of the petitioner retired from the service
on 31.03.2023 and after his retirement he
died in harness on 04.12.2023 without
getting his retiral dues and also refund
the amount of recovery which was
deducted from the earned leave of the
husband of the petitioner with interest.
(VI) For issuance of any other
appropriate writ/writs order /orders,
direction/directions for which the writ
petitioner shall be found entitled under
the facts and circumstances of the case.
3. The learned counsel for the petitioner submits that
the husband of the petitioner was initially engaged/appointed on
muster roll/ daily wages as a 4th Grade employee under Public
Health Mechanical Division, Dhaka, by the Executive Engineer
as per the urgent need of work. Pursuant to the direction of the
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
department contained in Memo No. 465 dated 25.05.1988
issued under the signature of the Chief Engineer, the services of
the husband of the petitioner was taken engaged in the year
1988 as a Key Man-cum-Chaukidar in the pay-scale of Rs.350-
425 issued under the signature of the Public Health Division,
Dhaka and subsequently his post of Key Man-cum-Chaukidar
was converted to the post of Tube Well Khalasi temporarily vide
Memo No. 422 dated 10.05.1989. He further submits that
instead of taking the services of the husband of the petitioner in
regular establishment from the work charge establishment, in
the year 2002, a general show-cause notices were issued under
the signature of the Commissioner-cum-Secretary to employees
working under work charge establishment including the husband
of the petitioner, by which the husband of the petitioner was
asked as to why their services be not reverted as daily wager
employees.
4. The learned counsel for the petitioner has further
submitted that in response to the aforesaid show-cause notice,
the husband of the petitioner filed his detailed response,
mentioning all the facts in detail and prayed for not to revert
him as a daily wager. Even after issuance of the aforesaid show-
cause notice, the husband of the petitioner continued on his post
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
in the work charge establishment, but the Respondent
Authorities had arbitrarily paid the salary to the petitioner as
daily wager in place of work charge employee. It is further
submitted that after filing of show-cause, no order of reversion
was issued to the husband of the petitioner from the work charge
establishment to daily wager. He further submits that pursuant to
the direction of this Court vide order dated 13.07.2006 passed in
C.WJ.C No.7359 of 2002 and its analogous cases, the State
Government constituted a three member Committee to consider
the cases of regularization and pursuant to the recommendation
of the three member Committee as well as the Memo no. 1125
dated 28.11.2006 issued by the Chief Engineer, Public Health
Engineering Department (Respondent no. 4), the services of the
similarly situated persons were regularized vide Office Order
No. 188 dated 30.11.2006 contained in Memo No. 1019 dated
30.11.2006 issued under the signature of the respondent no. 6
whereas the services of the husband of the petitioner was
regularized vide Office Order No. 68 dated 20.06.2014 issued
under the signature of the Respondent no.6 and contained in
Memo No. 699 dated 20.06.2014.
5. The learned counsel for the petitioner has further
submitted that a Co-ordinate Bench of this Court vide order
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
dated 16.05.2013 passed in C.W.J.C. No.7211 of 2013 and 16
other analogous cases (Yogendra Prasad Asthana Versus The
State of Bihar and others) directed the Respondent Authorities
for payment of differences of arrears of salary for the period
01.06.2002 till the date their regularization to the writ
petitioners of the said writ application. This Court also directed
the Respondent Authorities to implement the said order in other
similar matters.
6. It is further contended by the learned counsel for
the petitioner that in the light of the aforesaid order passed by
this Court, under the chairmanship of Chief Secretary, a meeting
of Bihar State Authorized Committee was convened on
13.11.2013 and a decision was taken for treating the services
rendered in between 01.06.2002 till regularization i.e.,
30.11.2006 in daily wager as work charge period and pursuant
to the said decision, the Respondent no.3 issued a general order
contained in Memo No. 925 dated 16.11.2013, by which a
general direction was issued to all the Executive Engineers to
ensure that the claim of payment of the differences of arrears of
salary of the said period are redressed, pursuant to the order
dated 16.05.2013 passed by this Court. It has also been directed
that the differences of the salary of the reversion period will be
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
paid according to the Bihar Litigation Policy. Pursuant to the
general order of the department, the Respondents had not paid
the differences of salary from 01.06.2002 till the regularization
admissible to the work charge employees. He further submits
that vide Memo No. 3058 dated 22.10.1984, the State
Government through the Finance Department issued an order by
which it was held that for the purposes of grant of pension,
gratuity as well as promotion, the period spent in the work
charge establishment be counted as qualifying service.
7. The learned counsel for the petitioner has further
submitted that the State Government through the Finance
Department issued a resolution vide Resolution No.10710 dated
17.10.2013 wherein in paragraph no.5 (iv), it has been
mentioned that for the purposes of grant of benefits of Modified
Assured Career Progression Schemes (MACPS), the services
rendered in the work charge establishment would be counted.
He further submits that the Respondent no.6 granted the benefits
of ACP/MACP to the husband of the petitioner counting the
services of the husband of the petitioner since the date of his
appointment in the work charge establishment as well as
revision of salary pursuant to the different circulars of the
Finance Department. The Finance Department issued a
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
Resolution contained in Memo No. 3972 dated 12.05.2016 with
respect to amendment of pay-scale of fourth grade employees.
By the said resolution, a decision was taken that those Group D
employees, who were getting the pay-scale of Rs.2610-3540
with effect from 01.01.1996, they are entitled to get the pay-
scale of Rs. 2610-4000 from the said date. On the account of
grant of first A.C.P. and the second A.C.P. their pay-scale were
converted in the pay-scale of Rs.2750-4400 and Rs.3050-4590
without any fixation. The original pay-scale of Rs.2610-4000
was revised with effect from 01.01.2006 in the scale of PB-1+
1800 and accordingly first ACP/MACP, second ACP/MACP and
third ACP/MACP is sanctioned in Grade Pay 1900, 2000 and
2400 respectively.
8. The learned counsel for the petitioner has further
submitted that in clarification of Resolution No. 3972 dated
12.05.2016, the Finance Department issued a Resolution
contained in Memo No. 7577 dated 23.09.2016 by which a
decision was taken that in the light of Resolution no. 3972 dated
12.05.2016 with effect from 01.01.1996, the Group- D
employees getting the pay-scale of Rs.2610-4000 or Rs.2650-
4000 will be entitled to get the benefits of fixation in case of
entitlement of A.C.P. It has been further decided that with effect
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
from 01.01.2006 after revision of pay-scale in PB-1+ Grade
Pay-1800 the Group-D employees who are getting unrevised
pay-scale Rs.2610-4000/2650-4000 are entitled to get three
increments whereas those Group- D employees who are getting
the pay-scale of Rs.2750-4000, are entitled to get two
increments and those employee who are getting the pay-scale of
Rs.3050-4590, are entitled to get only one increment. He further
submits that pursuant to the decision taken in the meeting of
Bihar State Authorized Committee under the chairmanship of
Chief Secretary dated 13.11.2013 as well as the subsequent
letter issued by the department, the Respondent no.2 was
pleased to hold that the services rendered in the work charge
establishment would be counted for the purposes of grant of
benefits of A.C.P. as also pay protection would be granted. He
further submits that in the meeting, all the disputes have been
settled and a letter in this regard has been issued by the
department vide Letter No. 925 dated 16.11.2013 and in the line
of the said decision as also the Resolution of the State
Authorized Committee No.10710 dated 17.10.2013, the
Respondent no. 2 had already issued a letter contained in Memo
No.707 dated 22.05.2018 by which it has been decided that for
the purposes of benefits of ACP /MACP as also the pay
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
protection the services rendered by the petitioner in the work
charge establishment from 1988 to 2006 was counted but in
utter disregard, the Respondent issued the impugned order
contained in Letter No. 581 dated 08.04.2020, by which the
Respondent no.3 held that Resolution No. 3972 dated
12.05.2016 and Resolution No.7577 dated 23.09.2016 are not
applicable in the case of those employees whose services had
been regularized in the year 2006 or later on from the work
charge establishment and they are only entitled for the
prescribed pay-scale and financial progression with effect from
01.01.2006. By the said letter, the Respondent no. 3 also
directed the authorities concerned to revise the salary of those
employees and to take needful action in accordance with law.
9. The learned counsel for the petitioner has further
submitted that pursuant to the aforesaid letter, the Respondent
no. 6 was pleased to reduce the salary of the husband of the
petitioner and also issued the Office Order No. 198 dated
08.11.2023 contained in Memo No. 1871 dated 08.11.203, by
which he ordered for recovery of Rs.3,58,329/- from the retiral
dues of the petitioner but the said order was not served to the
petitioner. The Respondent no.6 issued Office Order No. 205
dated 09.11.2023 contained in Memo No. 1890 dated
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
09.11.2023 by which he sanctioned the amount of earned leave
of Rs.5,02,165/- to the husband of the petitioner however, he
deducted the amount of Rs.3,58,329/- from the earned leave of
the petitioner and ordered for payment of only Rs.1,43,836/-
against the earned leave of the husband of the petitioner. After
attaining the age of superannuation, the husband of the
petitioner had superannuated from the post of Khalasi on
31.03.2023 pursuant to the office order contained in Memo No.
626 dated 28.03.203 but nothing has been paid to the husband of
petitioner against his retrial dues save and except the amount of
Group Insurance and General Provident Fund. He further
submits that after the retirement, the husband of the petitioner
died in harness on 04.12.2023 without getting his retrial dues.
With respect to death of her husband, a death certificate was
issued by the competent authority on 10.12.2023. He further
submits that the impugned order of recovery was issued after
eight months of the retirement of the petitioner without asking
any show cause notice or opportunity of hearing to the
petitioner.
10. The learned counsel for the petitioner has relied
upon a judgment of the Hon'ble Supreme Court in the case of
State of Punjab & Ors v/s Rafiq Masih, (2015) 4 SCC 334 and
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
the case of Thomas Daniel v/s State of Kerala and Others,
2022 SCC OnLine SC 536.
11. The learned counsel for the State relying on the
statement made in the counter affidavit has vehemently opposed
the prayer of the petitioner.
12. I have heard and considered the submissions of
the parties and have also gone through the records of the case.
13. The Hon'ble Supreme Court in the case of
Thomas Daniel V/s State of Kerala & Ors,. reported as (2022)
SCC OnLine SC 536, referring to the summarized postulation
of law expounded in Rafiq Masih (supra) regarding situations
wherein recoveries would not be permissible had held as under:-
10. In Sahib Ram v. State of Haryana, this
Court restrained recovery of payment which was given
under the upgraded pay scale on account of wrong
construction of relevant order by the authority
concerned, without any misrepresentation on part of the
employees. It was held thus:
"5. Admittedly the appellant
does not possess the required educational
qualifications. Under the circumstances
the appellant would not be entitled to the
relaxation. The Principal erred in granting
him the relaxation. 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
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
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."
11. In Col. B.J. Akkara (Retd.) v.
Government of India this Court considered an identical
question as under:
"27. The last question to be
considered is whether relief should be
granted against the recovery of the excess
payments made on account of the wrong
interpretation/understanding of the
circular dated 7-6-1999. This Court has
consistently granted relief against
recovery of excess wrong payment of
emoluments/allowances from an
employee, if the following conditions are
fulfilled (vide Sahib Ram v. State of
Haryana [1995 Supp (1) SCC 18 : 1995
SCC (L&S) 248], Shyam Babu Verma v.
Union of India [(1994) 2 SCC 521 :1994
SCC (L&S) 683: (1994) 27 ATC 121],
Union of India v. M. Bhaskar (1996) 4
SCC 416 : 1996 SCC (L&S) 967] and V.
Gangaram v. R[egional Jt. Director
[(1997) 6 SCC 139 : 1997 SCC (L&S)
1652]):
(a) The excess payment was
not made on account of any
misrepresentation or fraud on the part of
the employee.
(b) Such excess payment was
made by the employer by applying a
wrong principle for calculating the
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
pay/allowance or on the basis of a
particular interpretation of rule/order,
which is subsequently found to be
erroneous.
28. Such relief, restraining
back recovery of excess payment, is
granted by courts not because of any right
in the employees, but in equity, in
exercise of judicial discretion to relieve
the employees from the hardship that will
be caused if recovery is implemented. A
government servant, particularly one in
the lower rungs of service would spend
whatever emoluments he receives for the
upkeep of his family. If he receives an
excess payment for a long period, he
would spend it, genuinely believing that
he is entitled to it. As any subsequent
action to recover the excess payment will
cause undue hardship to him, relief is
granted in that behalf. But where the
employee had knowledge that the
payment received was in excess of what
was due or wrongly paid, or where the
error is detected or corrected within a
short time of wrong payment, courts will
not grant relief against recovery. The
matter being in the realm of judicial
discretion, courts may on the facts and
circumstances of any particular case
refuse to grant such relief against
recovery.
29. On the same principle,
pensioners can also seek a direction that
wrong payments should not be recovered,
as pensioners are in a more
disadvantageous position when compared
to in-service employees. Any attempt to
recover excess wrong payment would
cause undue hardship to them. The
petitioners are not guilty of any
misrepresentation or fraud in regard to
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
the excess payment. NPA was added to
minimum pay, for purposes of stepping
up, due to a wrong understanding by the
implementing departments. We are
therefore of the view that the respondents
shall not recover any excess payments
made towards pension in pursuance of
the circular dated 7-6-1999 till the issue
of the clarificatory circular dated 11-9-
2001. Insofar as any excess payment
made after the circular dated 11-9-2001,
obviously the Union of India will be
entitled to recover the excess as the
validity of the said circular has been
upheld and as pensioners have been put
on notice in regard to the wrong
calculations earlier made."
12. In Syed Abdul Qadir v. State of Bihar
excess payment was sought to be recovered which was
made to the appellants-teachers on account of mistake
and wrong interpretation of prevailing Bihar
Nationalised Secondary School (Service Conditions)
Rules, 1983. The appellants therein contended that
even if it were to be held that the appellants were not
entitled to the benefit of additional increment on
promotion, the excess amount should not be recovered
from them, it having been paid without any
misrepresentation or fraud on their part. The Court held
that the appellants cannot be held responsible in such a
situation and recovery of the excess payment should
not be ordered, especially when the employee has
subsequently retired. The court observed that in general
parlance, recovery is prohibited by courts where there
exists no misrepresentation or fraud on the part of the
employee and when the excess payment has been made
by applying a wrong interpretation/understanding of a
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
Rule or Order. It was held thus:
"59. Undoubtedly, the excess
amount that has been paid to the
appellant teachers was not because of any
misrepresentation or fraud on their part
and the appellants also had no knowledge
that the amount that was being paid to
them was more than what they were
entitled to. It would not be out of place to
mention here that the Finance
Department had, in its counter-affidavit,
admitted that it was a bona fide mistake
on their part. The excess payment made
was the result of wrong interpretation of
the Rule that was applicable to them, for
which the appellants cannot be held
responsible. Rather, the whole confusion
was because of inaction, negligence and
carelessness of the officials concerned of
the Government of Bihar. Learned
counsel appearing on behalf of the
appellant teachers submitted that majority
of the beneficiaries have either retired or
are on the verge of it. Keeping in view
the peculiar facts and circumstances of
the case at hand and to avoid any
hardship to the appellant teachers, we are
of the view that no recovery of the
amount that has been paid in excess to
the appellant teachers should be made."
13. In State of Punjab v. Rafiq Masih (White
Washer) wherein this court examined the validity of an
order passed by the State to recover the monetary gains
wrongly extended to the beneficiary employees in
excess of their entitlements without any fault or
misrepresentation at the behest of the recipient. This
Court considered situations of hardship caused to an
employee, if recovery is directed to reimburse the
employer and disallowed the same, exempting the
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
beneficiary employees from such recovery. It was held
thus:
"8. As between two parties, if a
determination is rendered in favour of the party,
which is the weaker of the two, without any
serious detriment to the other (which is truly a
welfare State), the issue resolved would be in
consonance with the concept of justice, which is
assured to the citizens of India, even in the
Preamble of the Constitution of India. The right
to recover being pursued by the employer, will
have to be compared, with the effect of the
recovery on the employee concerned. If the
effect of the recovery from the employee
concerned would be, more unfair, more
wrongful, more improper, and more
unwarranted, than the corresponding right of the
employer to recover the amount, then it would
be iniquitous and arbitrary, to effect the
recovery. In such a situation, the employee's
right would outbalance, and therefore eclipse,
the right of the employer to recover.
Xxxxxxxxx
18. It is not possible to postulate all
situations of hardship which would govern
employees on the issue of recovery, where
payments have mistakenly been made by the
employer, in excess of their entitlement. Be that
as it may, based on the decisions referred to
hereinabove, we may, as a ready reference,
summarise the following few situations, wherein
recoveries by the employers, would be
impermissible in law:
(I) Recovery from the employees
belonging to Class III and Class IV service (or
Group C and Group D service).
(ii) Recovery from the retired employees, or
the employees who are due to retire within one year, of
the order of recovery.
(iii) Recovery from the employees, when the
excess payment has been made for a period in excess of
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee
has wrongfully been required to discharge duties of a
higher post, and has been paid accordingly, even
though he should have rightfully been required to work
against an inferior post.
(v) In any other case, where the court
arrives at the conclusion, that recovery if made
from the employee, would be iniquitous or harsh or
arbitrary to such an extent, as would far outweigh
the equitable balance of the employer's right to
recover."
14. From the afore-quoted judgments, it is patently
clear that the recovery of excess payment, which is not having
been made by fraud or misrepresentation, from a Class-IV
employee is impermissible. The recovery of excess payments
made to employees due to administrative errors must be
governed by equity, fairness, and natural justice. Recovery
cannot be mechanically enforced, especially against a retired
Class-IV employee, particularly when such excess payment
could not be attributable to the fraudulent act on the part of the
employee concerned.
15. Considering the law laid down by the Hon'ble
Supreme Court in paragraph-18 of Rafiq Masih (Supra), which
is reiterated in Thomas Daniel (Supra) squarely apply to the
facts of the present case and it is clear that recovery of excess
payments cannot be enforced against a Class-IV employee in the
Patna High Court CWJC No.8506 of 2024 dt.13-10-2025
absence of any fraud or misrepresentation.
16. The recovery made from the deceased husband of
the petitioner is held to be illegal and, therefore, the order dated
08.04.2020 passed by the Respondent no.3 contained in Letter
No. 581 dated 08.04.2020 and the Office Order No. 205 dated
09.11.2023 contained in Memo No.1890 dated 09.11.2023
issued under the signature of the Respondent no. 6 are hereby
quashed.
17. The respondents are directed to ensure the
consequential benefits by restoring the adjusted/recovered
amount to the petitioner within a period of 12 weeks from the
date of receipt/communication of a copy of this order.
18. With the aforesaid observation and direction, this
application is allowed.
(Sandeep Kumar, J)
Shishir/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 17.10.2025.
Transmission Date
