Shashi Lata Kumari v. The State of Bihar

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3. The learned counsel for the petitioner submits that now the Interlocutory Application has become infructuous, therefore, she will not be pressing for the same.

4. Accordingly, I.A. No. 01 of 2026 is disposed of, as infructuous.

CWJC No. 8506 of 2022

5. The present writ petition has been filed for the following reliefs:-

"(i) To issue an appropriate writ/order/direction in the nature of Mandamus commanding the Respondent Authorities to release the amount of Rs. 8,72,410/- towards leave encashment together with interest @ 12% p.a. upto the date of actual payment.

(ii) To issue an appropriate writ/order/direction in the nature of Certiorari quashing the order dated 01.12.2021 as contained in letter no. 717 dated 02.12.2021 whereby and whereunder the Respondent No. 3 has directed the Respondent No. 4 to revise the pay scale of the Petitioner and then to consequently revise the pension and effect recovery of the excess amount paid.

(iii) To issue an appropriate writ/order/direction in the nature of Mandamus commanding the Respondent Authorities not to make any recovery from the Petitioner and also not to reduce/revise

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the pension of the Petitioner in view of the decision of the Hon'ble Supreme Court in Thomas Daniel vs State of Kerala [Civil Appeal No. 7115 of 2010 decided on 2 May

2022]

(iv) To issue an appropriate writ/order/direction in the nature of Mandamus declaring that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.

(v) To any other relief or reliefs for which the Petitioner is found entitled to in facts and circumstances of the case."

6. The brief facts giving rise to the present writ petition are that the petitioner was appointed on 26.04.1988 on the post of Teacher and superannuated from service on 30.04.2020 from the post of Block Education Officer, Ghosi, Jehanabad and at the time of retirement, the last pay drawn by the petitioner was Rs. 72,100/-. After retirement, the petitioner submitted all the relevant papers, including the Pension papers in the prescribed proforma on 06.06.2020 and consequent upon

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submission of the documents, the petitioner was sanctioned Pension, Gratuity, and Provident Fund and all the said amounts have been duly received by the petitioner. The petitioner is even receiving Pension w.e.f. May, 2020.

7. The learned counsel for the petitioner submits that although all the relevant documents were submitted by the petitioner before the respondent authorities, however for the reasons best known to them, the Leave Encashment amount of the petitioner to the tune of Rs. 8,72,410/-, has not been paid to her, till date. While the petitioner was following the authorities concerned for making payment of the Leave Encashment amount, to her utter surprise vide letter no. 717 dated 02.12.2021, issued under the signature of the Director (Primary Education), Department of Education, Government of Bihar, Patna addressed to the District Programme Officer (Establishment), Jehanabad, a direction was issued to revise the Pay Scale of the petitioner since at the time of promotion to the petitioner, one extra increment has been given to her and then to revise the Pension of the petitioner and to recover the excess amount, if any, paid to the petitioner on account of the wrong pay fixation.

8. The learned counsel for the petitioner submits that

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before issuance of the said letter dated 02.12.2021, no notice whatsoever was given to the petitioner and the petitioner was not aware about issuance of the letter dated 02.12.2021.

9. The learned counsel for the petitioner submits that subsequently vide Memo No. 439 dated 30.06.2022, issued under the signature of the Director (Primary Education), Department of Education, Government of Bihar, Patna addressed to the Accountant General (A & E), Government of Bihar, Patna, it was requested that in view of the fixation done by the respondent authorities, a fresh Pay slip be issued and an amount to the tune of Rs. 2,00,531/- has been found recoverable from the petitioner, on account of excess payment and the same may be recovered from the petitioner.

10. The learned counsel for the petitioner submits that the petitioner superannuated on 30.04.2020 and after her superannuation, the order has been passed for recovery of the excess amount, which has been paid to the petitioner on account of the so-called wrong fixation done at the end of the authorities concerned, for which the petitioner is not at all responsible. There is no misrepresentation or fraud committed on the part of the petitioner, in getting the Pay Scale fixed on the higher side. Therefore, the order passed by the authorities concerned for

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recovery of the so-called excess amount, paid to the petitioner is illegal and is fit to be set aside.

11. The learned counsel for the petitioner refers to and relies on a judgement of the Hon'ble Supreme Court of India in the case of Sasikala Devi P. v. State of Kerala reported in AIR 2023 SC 2187 wherein in paragraph no. 12, the Hon'ble Supreme Court of India has held as follows:-

"12. At the time of the hearing, it was submitted that all the appellants who were given the benefits have retired from service and recoveries were sought to be made from them though they were not at fault in grant of those benefits at the time of promotion. Considering the aforesaid fact and keeping in view the judgment of this Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Ors.[(2015) 4 SCC 334: AIR 2015 SC 696], we direct that no recovery of the amount already paid to them be effected. However, their pension can be refixed considering the emoluments to which the appellants were entitled at the time of their retirement in accordance with the rules."

12. A counter affidavit has been filed on behalf of respondent no. 3 wherein it has been stated that during course of examining the Pension papers of the petitioner, which was

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forwarded by the District Programme Officer (Establishment), Jehanabad, it was found that her pay fixation has wrongly been done, as during the said fixation she was wrongly granted the benefit of one additional increment, to which she was not entitled, as the promotion, which was granted to the petitioner in Subordinate Education Service, was in the same Grade Pay. Therefore, in such backdrop, the order dated 02.12.2021, has been issued by the Director (Primary Education), Government of Bihar, Patna, by which the Pension papers have been returned to the concerned District Programme Officer (Establishment), Jehanabad for doing the necessary correction and after getting the same approved by the competent authority, on the basis of the amended Pay Scale and to submit the details of excess amount received by the petitioner, so that the excess payment can be adjusted/recovered. It is not the case of the petitioner that she was entitled for the excess payment received by her, on account of wrong fixation.

13. It has further been stated by the learned counsel for the respondent-State that vide letter no. 438 dated 30.06.2022, the necessary order sanctioning 300 days of Earned Leave has been issued and for further needful action, the concerned District Programme Officer (Establishment),

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Jehanabad has been informed vide Memo No. 438 dated 30.06.2022, issued under the signature of the Director (Primary Education), Government of Bihar, Patna. Upon receipt of the amended pay fixation which has been certified by the Accounts Officer, a report was submitted by the District Programme Officer (Establishment), Jehanabad, wherein it has been informed that Rs. 2,00,531/- has been paid in excess, to the entitlement of the petitioner and accordingly, vide Memo No. 439 dated 30.06.2022, issued under the signature of the Director (Primary Education), Government of Bihar, Patna, the office of the Accountant General has been requested to revise the Pension on the basis of the said pay fixation and to recover the amount, which has been paid in excess to the entitlement of the petitioner.

14. The learned counsel for the respondent-State further submits that it is settled legal proposition that in case of excess payment made, undertaking of subsequent corrective measures i.e. fixing of pay at the correct stage has been held to be permissible and thus the direction issued by the then Director (Primary Education), Government of Bihar, Patna, vide letter dated 02.12.2021, cannot be held to be unjustified. Further, it has been stated that due to mistake on the part of the authorities

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concerned, the then dealing Clerk and District Programme Officer (Establishment), Jehanabad at the relevant time, sent the Pension papers to the Accountant General, Bihar for fixation of pay on the basic pay of Rs. 72,100/-, however on verification of record, it was found that the petitioner's Pay Scale has not been revised earlier, according to the department guidelines and it was found that one extra increment has been paid to the petitioner in the same grade, which is not justified according to the Finance Department and the Accountant General, Bihar guideline. In those backgrounds, the impugned order to recover the excess amount from the retiral dues has been passed.

15. It has further been submitted by the learned counsel for the State that the petitioner's Pay Scale has been revised and the basic pay stands at Rs. 70,000/- instead of Rs. 72,100/- and on that basis, the petitioner has filed her Pension paper with signature to revise her Pension, on 30.05.2022 and the Pension paper has been sent to the Director (Primary Education), Department of Education, Government of Bihar, Patna vide letter No. 1228 dated 08.06.2022. So far the amount of Leave Encashment to the tune of Rs. 8,72,410/- is concerned, the same has been calculated by mistake by the office of the District Programme Officer (Establishment), Jehanabad, on the

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basis of the last pay drawn as Rs. 72,100/-, but after verification of record, it was found that the petitioner's Pay Scale has been revised and the same has been reduced by one increment and the basic pay has been fixed at Rs. 7,00,00/-, therefore, after reduction in the Pay Scale, the then District Programme Officer (Establishment), Jehanabad vide letter No. 1193 dated 10.09.2021, requested the Director (Primary Education), Department of Education, Government of Bihar, Patna to calculate and sanction the Leave Encashment amount of the petitioner. It has further been submitted that as soon as the Leave Encashment will be sanctioned, the amount will be paid to the petitioner positively.

16. A counter affidavit has also been filed on behalf of the Accountant General (A & E), Government of Bihar, Patna wherein it has been stated that so far the claim of the petitioner for release of Leave Encashment amount and also the claim with regard to revised Pay Scale/Pension is concerned, the same is related to the department concerned. However, the office of the Accountant General vide letter no. 492 dated 01.06.2022, requested the Director (Primary Education), Department of Education, Government of Bihar, Patna, copy of the said letter has also been send to the District Programme Officer

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(Establishment), Jehanabad and to the petitioner, with a request to send the Service Book with revised sanction order for Pensionary benefits, immediately.

17. Having heard the parties and after going through the records, this Court finds that the pay fixation of the petitioner was done by the competent authority and the same was being paid to the petitioner till her date of retirement i.e. 30.04.2020. After her retirement, by the impugned order contained in letter No. 717 dated 02.12.2021, a direction was issued to re-fix the pay of the petitioner and to recover the excess payment made to the petitioner, if any, on account of wrong fixation of the pay of the petitioner and pursuant thereto, the pay fixation of the petitioner was again done by the respondent authorities. Subsequently, a direction was issued to recover Rs. 200531/- from the petitioner, on account of excess payment made to her due to grant of one extra increment to her. However, it appears that prior to issuance of letter No. 717 dated 02.12.2021, no notice whatsoever was given to the petitioner and it is not the case of the department that the petitioner misrepresented or committed fraud in getting her Pay Scale fixed on the higher side. It was the respondent authorities, who fixed the pay of the petitioner and later on realised that one extra

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increment has been given to her, that too after the retirement of the petitioner. If the respondent authorities were of the view that one extra increment has been paid to the petitioner, they should have issued notice to the petitioner and after considering the reply, which the petitioner would have submitted, they should have proceeded to direct for recovery of the excess amount paid to the petitioner. In the present case, no such procedure has been followed and the order impugned has been passed in complete violation of the principles of natural justice.

18. Accordingly, on the basis of the consideration made above, the impugned order contained in letter No. 717 dated 02.12.2021 issued under the signature of the Director (Primary Education), Department of Education, Government of Bihar, Patna, so far it relates to recovery from the petitioner, is concerned, is set aside. The Respondent authorities are directed to return the amount, if any, which has been recovered from the petitioner, on account of re-fixation of her Pension/Pay, within a period of three months from the date of receipt/production of a copy of the order and no recovery of the amount, already paid to the petitioner should be effected. However, the Pension of the petitioner can be re-fixed considering the emoluments/pay to which the petitioner was entitled at the time of her retirement, in

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accordance with law.

19. The respondent authorities are further directed to re-calculate the Leave Encashment of the petitioner on the basis of the re-fixation done by them and to pay the amount of Leave Encashment to the petitioner within the above-mentioned period of three months. If the amount of Leave Encashment will not be paid to the petitioner within the above-mentioned period of three months, then the petitioner would be entitled for interest @ 6% on the amount of Leave Encashment, from the date of filing of the writ petition, till the date of its actual payment.

20. The writ petition is allowed in the afore- mentioned terms.

21. Pending application, if any, shall also stand disposed of.

(Ritesh Kumar, J)

vinita/-