Smt. Shakuntala Devi vs State Of Bihar And Ors. on 7 August, 2003

Patna High Court
Smt. Shakuntala Devi vs State Of Bihar And Ors. on 7 August, 2003
Equivalent citations: 2003 (3) BLJR 1745
Author: A Alam
Bench: A Alam


Aftab Alam, J.

1. Smt. Shakuntala Devi is the widow of the Surya Bhushan Sinha who had filed this writ petition seeking direction(s) to the respondents for payment of the retiral dues. He died during the pendency of this case and his widow got herself substituted in his place for prosecuting the claim.

2. Surya Bhushan Sinha retired on 28-2-1993 while he was working as a Clerk in Nalanda Medical College Hospital. After more than four years of his retirement he was paid Rs. 10,191/-. This amount was paid to him as provisional pension (90%), gratuity (90%) and leave encashment, after deducting Rs. 61,129/-, which according to the concerned authorities was paid to him as excess salary on the basis of the two time-bound promotions wrongly allowed to him. When no further payments of his retiral dues were made, he filed this writ petition before this Court in January, 2000 and shortly thereafter he died on 22-4-2001. Thus, in the nine years during which he survived after his retirement in 1993 all that he was able to get from the respondent authorities as his retiral dues was the paltry sum of Rs. 10,191/-. According to the counsel appearing for the petitioner, Surya Bhushan Sinha died in penury and towards the end of his life he was not even able to get proper medical treatment.

3. After the death of Surya Bhushan Sinha and during the pendency of this case is widowed wife, the substituted petitioner, was paid on 18-10-2001, Rs. 3,21,697/-being the amount of pension from 1-3-1993 to 22-4-2001 @ Rs. 1,077 per month. Apart from this she was also paid family pension @ Rs. 450/- per month from 23-4-2001.

4. According to the respondents, the payments referred to above fully and finally settled the retiral dues of Surya Bhushan Sinha and the petitioner is not entitled to any further payment.

5. As regards the inordinate delay in payment of the retiral dues it is sought to be explained that in the service book of the deceased employee there was some over-writing and the date of his retirement had, therefore, become a subject of controversy. On enquiry it was finally decided to superannuate him from 28-2-1993 and he was accordingly, superannuated from that date. Then while processing his retiral dues the departmental authorities found that he was wrongly given time bound promotions, first w.e.f. 1-4-1981 and the second w.e.f. 1-4-1983, because he had not passed the accounts examination conducted by the Board of Revenue. The dates of his time bound promotions were later revised and shifted to 10-2-1985, in the case of first promotion and 10-2-1990 for the second time bound promotion. On the basis of the promotions wrongly given to him earlier w.e.f. 1-4-1981 and 1-4-1983 respectively he had received excess salary amounting to Rs. 61,129/- which was deducted from his retiral dues and hence, initially only a sum of Rs. 10,190/- was paid to Surya Bhushan Sinha. According to the respondents, these were the causes of delay in the final settlement of the retiral dues of Surya Bhushan Sinha.

6. Mr. Ram Ashish Singh, Advocate appearing for the petitioner strongly assailed the action of the respondent authorities in cancelling the time bound promotions earlier allowed to the petitioner’s husband and in recovering the excess amount paid to him as salary pursuant to the cancellation of the promotions. He challenged the validity of the orders dated 29-10-1996 (Annexure-4) and dated 4-2-1999 (Annexure-8). By the first order the time bound promotions allowed to the petitioner’s husband w.e.f. 1-4-1981 and 1-4-1983 respectively were cancelled and his salary was fixed in the lower scale. By the second order he was allowed promotions w.e.f. 10-2-1985 and 10-2-1990 and his monthly salary was refixed on that basis.

7. Apart from this Mr. Ram Ashish Singh claimed penal interest on delayed payment of his retiral dues.

8. I now propose to take up the two points raised by Mr. Singh one by one.

9. As regards the validity of the order issued after his retirement, cancelling the promotions granted to him while he was in service, Mr. Singh submitted that it was settled by the decisions of this Court that promotions once allowed could not be cancelled on the ground of non-passing of the departmental examination; more so when there was no misrepresentation or suppression of facts by the concerned employee. In support of his submission he relied upon a number of decisions. He first cited a bench decision of this Court in Kameshwar Prasad Singh v. State of Bihar and Ors., 1998 (1) PLJR 812. In that decision it was held that the petitioner in that case could not be denied the first time bound promotion even though he had not passed the Accounts examination because juniors to him who too like him had not passed the Accounts examinations were granted time bound promotion w.e.f. 1-4-1981. The decision in Kameshwar Prasad Singh was clearly based on a different consideration and it has no application to this case.

10. Mr. Singh next cited a single bench decision in Ramjee Prasad Singh v. State and Ors., 1999(3) PLJR 648. He also relied upon a single bench decision in Jagdish Lal v. State of Bihar and Ors., 2000(3) PLJR 671 and another Single Bench decision in Paras Nath Mishra and Ors. v. State of Bihar and Ors., 2000(3) PLJR 690. In the three decisions relied upon by Mr. Singh it was indeed held that failure to pass the departmental examination(s) cannot be made a ground for cancelling time bound promotion earlier granted provided there was no misrepresentation or suppression of fact(s) on the part of the concerned employee. But in my view the decisions relied upon by the counsel for the petitioner have no application to the case in hand because this case is somewhat different on facts.

11. The first time bound promotion was allowed to the petitioner’s husband and eight other employees, by an office order issued by the Superintendent, Nalanda Medical College Hospital under his Memo No. 1671, dated 27-5-1988 (Annexure-2). In this order it was clearly stated that the promotion was provisional and subject to the condition that the concerned clerks would pass the Accounts examination within two years from the date of the order, failing which the promotion allowed would be deemed to have been cancelled. Further, in the concluding portion of the order it was stated that the promotion was subject to the approval of the Health Department and on the promotion being cancelled the excess payment made to the concerned employee would be liable to recovery. Again, the second time bound promotion was allowed to the petitioner by office order, dated 7-4-1989 in which there was a similar condition that the promotion was provisional and subject to the approval by the Health Department.

12. The deceased employee did not challenge the conditional promotions and accepted the promotions fully aware of the conditions attached to it.

13. He admittedly did not appear/pass in the Accounts examination in the next two years. Further, when his promotion was cancelled by the impugned office order dated 29-10-1996 he did not choose to challenge it at that time. On the contrary, as directed by the authorities, he sought exemption from passing the departmental examination. On his representation he was granted exemption from passing the examination, pursuant to which the office order dated 14-12-1999 was issued, allowing him time bound promotions w.e.f. 10-2-1985 and 10-2-1990 respectively and his monthly salary was refixed on that basis. It is thus to be seen that the employee himself did not challenge the office order issued in the year 1996, at the time of its issuance and the other office order (Annexure-8) was actually issued when his own request for grant of exemption from passing the examination was allowed. In these circumstances i fail to see how the petitioner can now take up the issue and challenge the office order dated 29-10-1991 (Annexure-4). I thus see no substance in the petitioner’s challenge to the validity of that order.

14. Coming now to the claim of interest I find that on this issue the petitioner is on very firm grounds. Her husband retired on 28-2-1993 and he died on 22-4-2001, During this period all that was paid to him was the meagre amount of Rs. 10,191/-and his retiral dues were finally settled by payment to his widowed wife on 18-10-2001. In my considered view the controversy arising from any overwriting in the service book or the time bound promotions wrongly allowed to the employee can hardly be considered as justification for the delay of nine years in the final settlement of the retiral dues. The respondent authorities are, therefore, clearly liable to pay interest for the delayed payment. The concerned authorities are accordingly directed to pay interest @ 10% on the amounts under each head of the retiral dues. The interest shall be payable from the date of retirement till the date of actual payment and interest shall accrue on the full amount under each head and not only on the amount paid to the employee/his wife under that head, after deduction of Rs. 61,129/-. The amount of interest must be calculated and paid to the petitioner within two months from the date of receipt/production of a copy of this order in the office of the Commissioner cum Secretary, Health Department, Government of Bihar.

15. In the result, this writ petition is partly allowed but with no order as to costs.

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