ANIRUDH PRASAD SINGH v. THE STATE OF BIHAR

For the Petitioner : Mr. Akhauri Baidya Nath Prasad, Advocate For the State : Mr. Amarendra Kumar, A.C. to G.P.XI For the Accountant General : Mr. Sanjay Kumar, Advocate ***

30.07.2009 Heard learned counsel for the petitioner and learned counsel for the State and also learned counsel for the Accountant General, Bihar. - 2 - This writ application has been filed by the petitioner for quashing Annexure-4, an order of the Incharge Medical Officer, Primary Health Centre, Sahar in Bhojpur by which, in the light of the communications from the office of the Accountant General Bihar, Patna dated 26.4.2001 and 23.8.2000, an amount of Rs.87,168/- has been ordered to be recovered from the retiral benefits of the petitioner. Communications of the office of the Accountant General relied upon for passing the impugned order are annexed as Annexures 1 and 3. From Annexure 1 it appears that the department under some wrong interpretation of the law had granted second time bound promotion to the petitioner with effect from 1.4.1986. The said interpretation of the department was found wrong and the petitioner was held entitled for second time bound promotion only with effect from 14.9.1996. Therefore, the office of the Accountant General while returning the advice for payment of salary of the petitioner, requested the respondent Incharge Medical Officer to take steps in accordance with the objections raised in the said letter. Learned counsel for the petitioner submits that the petitioner was granted second time bound promotion and its consequential monetary benefits by - 3 - the Department without any misrepresentation of facts or fraud committed on his part. He submits that it was bona fide act on the part of the departmental authority on the basis of the interpretation of law in this regard which was found to be erroneous by the office of the Accountant General later on. In the circumstances, since for no fault of the petitioner the aforesaid amount was paid to him, the same cannot be recovered from the petitioner subsequently. Reliance has been placed by learned counsel for the petitioner for this proposition on a judgment of the Hon’ble Supreme Court in the case of Syed Abdul Qadir & ors. Versus The State of Bihar & ors. reported in 2009 (2) PLJR 74 (SC) and particularly, the following observations of the Hon’ble Supreme Court made in paragraph 27, quoted herein below:- a payment emoluments “This Court, in a catena of decisions, has granted relief against recovery of / excess allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee and (b) if such excess payment was made by the employer by applying calculating the pay/allowance or on particular interpretation of rule / order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in equity, exercising judicial discretion to relieve hardship that will be caused if employees, principle employees a - 4 - recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.” Considering the observations of the Hon’ble Supreme Court, as quoted above, this Court is of the opinion that the case of the petitioner squarely falls in category (b) as carved out by Hon’ble Supreme Court observations. Therefore, it is not open to the respondents to recover the excess amount from the petitioner in view of the objections of the Accountant General even if it is held that the petitioner was wrongly given the promotion with effect from 1.4.1986 and had drawn salary in higher scale to which he was not entitled. In the circumstances, the impugned order as contained in Annexure-4 passed by the Incharge Medical Officer, Primary Health Centre, Sahar, Bhojpur, is not sustainable in law and is fit to be quashed, which is hereby is quashed. By order dated

13.2.2002 order of recovery of amount already paid to the petitioner was stayed by this Court. However, - 5 - it is made clear that if any amount has been recovered from the petitioner pursuant to the impugned order (Annexure-4), the same shall be refunded to the petitioner immediately. In the result, this writ application is allowed with the aforesaid observations and directions. Learned counsel for the petitioner submits that due to pendency of this writ application, pension of the petitioner has not been fixed and his pensionary benefits have not been paid. Now, that the writ application stands disposed of, the authorities are directed to calculate, fix and pay all the retiral benefits of the petitioner positively, within a period of three months from the date of receipt/production of a copy of this order. B.T (J.N. Singh, J.)