IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8082 of 2009 Bishwabhushan Pd.Singh, S/o-Late Braj Bhushan Prasad, resident of Village-Tisiota, P.S.-Tisiota, District-Vaishali. -Petitioner. VERSUS 1. The Bihar State Electricity through its Chairman, Vidyut Bhawan Bailey Road, Patna. 2. Secretary, Bihar State Electricity, Vidyut Bhawan Bailey Road, Patna. 3. Joint Secretary, Bihar State Electricity, Vidyut Bhawan Bailey Road, Patna. 4. Financial Controller, Bihar State Electricity, Vidyut Bhawan Bailey Road, Patna. -Respondents. ----------- Counsel for the Petitioner : Mr. Ashok Kumar. Counsel for the Respondents : Mr. Anand Kr. Ojha. ------------ 03 31.08.2009 The petitioner superannuated as an Accountant Assistant from the Head Office of the Bihar State Electricity Board on 31.01.2006. After superannuation his service career and payments were made under scanner. It was found that with effect from 1st July, 1980 petitioner was given regular increment in pay whereas by then he had completed 10 years of service and it has now been discovered that he ought to have cleared the Hindi Noting and Drafting departmental examination. Having not passed the departmental examination the annual increment was to be withheld but had been wrongly granted. This position continued till 26.08.1998 when Board took a decision that any person who had not cleared the Hindi noting and drafting examination and had served the Board for 30 years, would be deemed to be exempted from such departmental examination. Now, by the impugned Annexure-1 dated 03.07.2006, petitioner is being told that granting him annual increments in between the 01.07.1980 and 26.08.1998 was wrong. Accordingly, calculations having been made by Annexure-C/1 to the - 2 - counter affidavit dated 11.01.2007, a total amount of Rs.1,69,694 was being recovered from Rs.1,93,219 that was found payable to him. The result was that only Rs.23,000/- was ultimately found payable to him. Petitioner has challenged the same. Petitioner submits that he was neither the Drawing Disbursing Authority nor he had made any representation for wrong fixation of pay scale. Even if a wrong pay scale was paid to him, it was paid between the period 1980 to 1998 and that realization having come to the notice of the Board now after his superannuation, the same cannot be recovered. It would be rank arbitrary, capricious and inequitous action of the Board. On behalf of Board, reliance has been placed on the judgment of this Court in the case of Ram Binod Singh & Ors. Vs. the State of Bihar & Ors. and analogous cases since reported in 2007(3) PLJR 398 (Full Bench). On the other hand, learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Gulam Hasnain Vs. The State of Bihar through the Secretary Water Resources Department, Sinchai Bhawan, Patna since reported in 2009(2) PLJR 675 wherein their Lordships have clearly held that even if the payments were made on assessment of an illegal payment, after retirement, the same cannot be recovered. Recovery having been made, refund has been ordered. Reliance is placed on decision of the Apex Court in the case of Babu Lal Jain Vs. the State of M.P. & Ors. Since reported in (2007) Supreme Court Cases 180, Union of India Vs. S.R. Dhingra & Ors. (2008)2 Supreme Court Cases 229, Union of - 3 - India & Anr. Vs. Nagendra Singh (2008)2 Supreme Court Cases 750 and in the case of Syed Abdul Qadir & Ors. Vs. the State of Bihar & Ors. 2009(2) PLJR. Having considered the said decisions, in my view, the principle is well settled. A person who has committed a mistake, has every right to correct that mistake but what flows there-from is different. If permitting again pursuant to the correction of mistake leads to inequitous situation, the Court will not permit such a recovery. Whether to permit recovery or not is a discretion of the Court which is based on equity. It is akin to restitution. Restitution is never by way of right. In the present case, it would be seen that right from 1980 to 1998 petitioner was being granted annual increments. This mistake is being discovered only long after petitioner superannuates and now having superannuated, recoveries are being made against him. In such a situation, even permitting recoveries by instalments does not make it equitous where such a distant point of time the recovery itself is inequitous. Thus, in my view, the writ petition has to be allowed. The respondents are restrained from seeking to recover through adjustment or otherwise, the same as indicated above. Petitioner would be entitled to the entire payment without the said adjustments, the same shall be made to the petitioner, if not already made, within a period of one month from today. Trivedi/ (Navaniti Prasad Singh, J.)