PERMOD KOHLI, J. - (1.) PETITIONER joined the Government service as untrained Health worker at Primary Health Center (PHC), Hantarganj, Chatra on 29th June, 1962. He completed the training of Health Inspector and passed the final examination in September, 1971 from Lok Swasth Sansthan, Patna. While in service pay scale of the petitioner came to be revised on the basis of 4th Pay Commission recommendations to Rs. 580 -860/ - with effect from 01st April, 1981. While promoting him to the post of Junior Selection Grade, it was stated that this promotion was meant for matriculate Health worker, who had passed the Health Inspector Examination and petitioner being a matriculate and having passed the Health Inspector examination, was conferred the benefit of this promotion/revised pay -scale. Petitioner superannuated on 31st January, 2002 on the post of Trained Health Worker. His pension papers were processed and forwarded to Accountant Generals Office for settlement of the pension claimed on the basis of last pay drawn. Respondent No. 3 raised objection vide his Memo. No. pen -4 -620 dated 28th of June, 2002 regarding the revision of pay scale granted to the petitioner in the year 1981. Respondent No. 5 vide his letter No. 3 dated 2nd January, 2003 not only clarified but also justified the grant of revised pay scale to the petitioner. However, respondent No. 4 ignoring the objections, fixed the pay - scale of the petitioner by withdrawing the benefit of revision of pay scale granted to the petitioner in the year 1981. Even the Deputy Secretary to the Government vide his memo. No. VII/FP -2 -1 -37/66 -4098 (6) 4 dated 6th December, 1966 addressed to the Accountant General, Bihar clarified the position and informed him that there were three grades having different pay scales as per the educational qualification and petitioner was considered under the category of Health Inspector (Matric). Reference was also made to the Additional Director, Health Services (Admn.) vide letter No. 2729 (14) dated 5th July, 1979, whereby the pay scale of Rs. 220 -315 was fixed for the Matric passed Health workers. It is under these circumstances that the petitioner has come to this Court seeking quashment of the letter No. Pen 4 -620 dated 28th June, 2002 and letter No. Pen -4/2592 dated 4th February, 2003 issued by the respondent No. 4, directing recovery of the amount from the petitioner said to be paid in access in the year 1981 due to wrong fixation of pay scale. Respondent No. 5, the In -charge Medical Officer in the counter affidavit stated that the post of the Health Inspector was in the pay scale of Rs. 205 -284/ - with effect from 02nd June, 1973. It is further stated that under the order of the Deputy Director, Health Services (Admn.) Bihar at Patna and as communicated vide letter No. 14/3 -052/78 -2729 (14), letter No. 2211 dated 30th July 1981 of the Civil Surgeon -cum -Chief Medical Officer, Hazaribagh, pay scale of the Matriculate Health Workers was fixed at Rs. 220 -315/ - and, accordingly, petitioners pay was fixed at Rs. 260/ - from 15th March, 1981. It is further stated that this scale was revised and replaced by pay -scale of Rs. 535 -765/ - and pay of the petitioner was fixed at Rs. 605/ - from 01st April, 1981 vide Government order No. 3/PRC/3181/F/10776 dated 30th December, 1981. It is further mentioned that pay scale of Rs. 605/ - was fixed in the case of the petitioner with effect from 01.04.1981 duly approved by the Finance Department, Pay Fixation Section, Government of Bihar Patna. Petitioners retirement is not disputed. As regards the payment of retiral benefits what is stated is that 90 per cent of the Gratuity amount, all due G.P.F., full amount of group insurance and leave encashment has been paid to the petitioner. In other words Stale -respondents have not disputed the claim of the petitioner. It is the Accountant General, who has filed a separate counter affidavit, whereunder, it is stated that though in the year 1981 pay scale of Trained Health Worker was Rs. 180 -245/ - and untrained Health Worker was Rs. 165 -204/ - but with effect from 01st April, 1981, the pay scale of both Trained and untrained Health Worker was fixed at Rs. 400 -540/ - by the Finance Department, Government of Bihar vide Resolution No. 10770 dated 30th December, 1981. It is further stated that the pay -scale was upgraded to Rs. 535 -765 with effect from 01st March, 1986 only in respect of Matriculate Health Workers on the recommendation of the Pay Anomaly Committee. It is further stated that the Department allowed higher pay scale to the petitioner contrary to the admissible pay -scale and hence the Accountant General, A&E, Bihar, Patna authorized the pension and gratuity on the admissible pay scale vide P.P.O. No. 011709 and G.P.O. No. 419 (02 -03) respectively in favour of the petitioner and petitioner was informed about the correct pay position vide letter No. Pen -4 -2591 -92 dated 04th February, 2003. This respondent has also admitted that the clarification regarding admissibility of pay scale to the Health Workers was received from the Deputy Director, Health Services, Bihar, Patna vide letter No. 933 (4) dated 06th October, 2001.
(2.) THE short question that falls for consideration is whether respondents are justified in making recovery from the petitioner on account of the alleged wrong fixation of pay in the year 1981 i.e. almost 22 years before the date of his superannuation and whether he could be denied pensionary benefits in the higher pay -scale earlier granted to him. It has been argued on behalf of the respondents that a bona fide mistake can always be corrected by the State. Learned Counsel appearing on behalf of the State has relied upon Rule 65 of the Bihar Financial Rules, Vol I, which reads as under: 65. The State Government may waive the recovery of an amount placed under objection by the Accountant -General or otherwise found to have been overpaid to a Government, if - (i) the amount disallowed has been drawn by the Government servant concerned under a reasonable belief that he was entitled to it; (ii) the enforcement of recovery will, in the opinion of the State Government, cause undue hardship, or it will be physically impossible to effect the recovery; and (iii) in the case of disallowance of emoluments of the nature of pay as defined in Bihar Service Code, Rule 34, made within one year of the date of payment: (1) the Government servant is not in receipt of pay exceeding Rs. 12,000 a year, or, in the case of others the overdrawal has not the effect of raising the Government servants pay beyond Rs. 12,000 in any year, and (2) the over -drawal has not been occasioned by delay in notifying a promotion or reversion. 2005 (2) J.L.J.R. 705 Ram Chandra Singh and Ors. v. State of Jharkhand and Ors. whereunder the order of recovery on account of wrong fixation of the salary from the Government servant was upheld. Learned Counsel appearing for the petitioner has relied upon a judgment of a learned Single Judge of this Court in W.P. (S) No. 974 of 2004 Ram Prasann Singh v. State of Jharkhand and Ors. and also on a decision of the apex Court reported in 1995 Supp (1) SCC 18, Sahib Ram v. State of Haryana and Ors. In the case of Ram Prasann Singh v. State of Jharkhand and Ors. , this Court set aside an order of recovery issued by the State on account of shifting of the date of promotion to a later dale. It has been held in this judgment that where payment has been made without any misrepresentation or fraud of employee, no recovery can be made from his retiral dues. It was also ruled that any order to the prejudice of a person cannot be passed without affording him any opportunity of being heard. To arrive at this conclusion reliance was placed on 1995 (Supp) 1 SCC 18 Sahib Ram v. State of Haryana and Ors., wherein the apex Court held as under: Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to 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 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. 2005 (2) JLJR 705 Ram Chandra Singh and Ors. v. The State of Jharkhand and Ors. relied upon by the respondents, it is held that where the employee was in service and adjustment was sought to be made of the amount said to be paid to him due to wrong fixation of pay scale, no interference is warranted by the Court. In the present case, admittedly the petitioner has retired from service and the order of fixation of his pay passed almost 20 years prior to his date of retirement was said to be reversed by the Accountant General on the ground of the alleged wrong fixation of salary. The employer of the petitioner has, however, justified its order of fixation of salary on the basis of a Government Circular. Even the order of the fixation of salary in respect to the petitioner had the approval of the Finance Department. All these orders were duly communicated to the Accountant General. These orders of fixation of the salary were neither withdrawn nor modified by any competent authority particularly the employer till date.
(3.) THE State -respondent has supported the case of the petitioner in the counter affidavit and various communications referred to by the petitioner and accepted by the State -respondents as also the Accountant General. Recovery is said to be made from the retiral benefits of the petitioner and he is also being denied of the pensionary benefits as per his last pay by excluding the benefit of pay revision given to him in the year 1981. It is the admitted case of the parties that pay scale of the petitioner was fixed by the State Government on the basis of his qualifications without any misrepresentation or fraud attributed to the petitioner. The State Government has justified its own action. Even before this Court as also before the Accountant General. As far the Bihar Financial Rules are concerned these rules are not framed in exercise of any statutory power. As a matter of fact pre -emble of these rules clearly indicate the same to be administrative in nature and are meant for the internal functioning of the Government Departments. These rules are not binding upon the petitioner. In any case Rule 65 of the rules, speaks of waiver by the Government, if the amount has been withdrawn by the Government servant concerned under a reasonable relief that he was entitled to it or the enforcement of recovery will cause undue hardship or will be physically impossible to effect. The argument of the Respondents that petitioner should approach the State Government for waiver of the recovery and till such waiver is allowed, no relief can be granted is an argument without any substance. Clear and categorical stand of the State Government justifying its action of conferment of higher pay scale to the petitioner in the year 1981 on the basis of his qualification is itself sufficient to infer the intention of the State Government to waive. There may not be any specific order of waiver but the stand of the Government itself amounts to conveying its intention not to recover and thus can be considered as a waiver under Rule 65 of the Bihar Financial Rules. In any case there is no order of the State Government for recovery from the petitioner pursuant to the objection raised by the Accountant General or cancellation or withdrawal of the benefit of higher pay scale granted to the petitioner in the year 1981. Admittedly petitioner has enjoyed this benefit for a period of 20 years and has earned various pay revisions with this pay as the basis. After a period of 20 years, he cannot be deprived of all these benefits in absence of any misrepresentation or fraud attributable to him. This case is squarely covered by the judgment of the apex Court in the Sahib Rams case (Supra). The facts of the case of the Division Bench in Ramchandra Singh v. The State of Jharkhand and Ors. reported in 2005 (2) J.L.J.R. are clearly distinguishable as in that case, the order of recovery was initiated at the instance of the State Government. In view of the above circumstances, admittedly a great prejudice has been caused to the petitioner by the order impugned, which has otherwise been passed without affording any opportunity of being heard to him. In any case, there is no justification for such an objection by the Accountant General when the State Government, the employer, who has to provide funds has justified the conferment of benefit to the petitioner. In view of the above I allow this writ petition and quash the impugned letter Nos. Pen -4 -620 dated 28.06.2002 and Pen -4/2592 dated 04.02.2003 issued by the respondent No. 4. As a consequence of the quashment, petitioner is entitled to all retiral benefits on the basis of last pay scale as recommended by the Medical Officer to the Accountant General. While fixing and calculating the pensionary benefits, petitioner shall be allowed the benefit of pay scale granted to him in the year 1981. Let the retiral benefits be settled and revised P.P.O. issued for payment of the same within a period of three months from today, failing which petitioner shall be entitled to interest @ 6 per cent on the balance amount payable to him till the amount is actually released.;