IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.287 of 2006 LALMAN SINGH son of late Abhilakh Singh residing of Village and P.S.-Chitgar District Satna (M.P.) at present residing at village Hinauti, P.O. Hinauti Police Station Garh District Rewa (M.P.) Versus 1. THE BIHAR STATE ELECTRICITY BOARD through its Chairman Vdyut Bhawan, Baily Road, Patna. 2. The Secretary Bihar State Electricity Board, Vidyut Bhawan, Baily Road, Patna. 3. The Member Finance Bihar State Electricity Board Vidyut Bhawan Baily Road, Patna. 4. The Finance Controller-1 Bihar State Electricity Board, Vidyut Bhawan, Baily Road, Patna. 5. The Director Personal Bihar State Electricity Board, Vidyut Bhawan, Baily Road, Patna. 6. The General Manager-cum-Chairman Bihar State Electricity Board, Transmission Zone-3, Gaya. 7. The Electrical Superintending Engineer Transmission circle Bihar State Electricity Board, Dehri on-sone District Rohtas. 8. The Electrical Executive Engineer Transmission division Bihar State Electricity Board Dehri- on-sone District Rohtas. 9. The Accounts Officer, Bihar State Electricity Board, Transmission circle Dehri-on-sone District Rohtas. ----------- 5 16.02.2010 Heard Mr. Dhirendra Kumar (Munna) learned counsel appearing on behalf of the petitioner, Mr. Vinay Kirti Singh learned counsel appearing on behalf of the Electricity Board and learned counsel for the State. The petitioner who retired as Electrical Executive Engineer Transmission Division Dehri-on-sone from the Electricity Board on 31.1.2003, has filed the writ petition 2 being aggrieved by the order dated 3.5.2005 (Annexure-6) passed by the respondent No.8, Executive Engineer rejecting the claim of the petitioner and upholding the recovery of the amount of Rs. 66,491/- said to be the excess amount drawn by the petitioner by reason of the incorrect pay fixation. Facts in brief is that consequent upon the retirement of the petitioner on 31.1.2003 the respondents in the process of finalization of the retiral benefits and acting on the objections raised by the internal audit issued a refixation order on 22.3.2004, copy whereof is placed at Annexure-2 of the writ petition whereby the salary drawn by the petitioner with effect from 4.11.1970 was revised until 27.11.2002. Following the revision and refixation of the salary of the petitioner on the basis of the order contained in Annexure-2 it was held that the petitioner has drawn an excess amount of Rs. 66,491/- and which was sought to be recovered. The petitioner being aggrieved by the refixation as contained in Annexure-2 herein filed a writ petition bearing C.W.J.C. No. 12316 of 2004 and which was heard and disposed of by an order dated 1.2.2005 3 whereby a Bench of this Court was pleased to set aside the refixation order dated 23.3.2004 (Annexure-2) and a liberty was granted to the respondents to fix the pay scale of the petitioner after giving him an opportunity of hearing within a period of three months from the date of order failing which the petitioner would be entitled to the earlier pay scale. The respondents acting in compliance of the order, supra, issued notice to the petitioner and who responded by a detailed representation, copy whereof is placed at Annexure-5 and which was received in the office of the Board on 11.3.2005. By the impugned order dated 3.5.2005 (Annexure-6) the claim of the petitioner was rejected by the Electrical Executive Engineer and it was held that the pay fixation was in accordance with law. The Electrical Executive Engineer while rejecting the claim of the petitioner has held that as the petitioner was not entitled to the said scale so there was no infirmity in the recovery of the amounts drawn by the petitioner by reason of such incorrect fixation of pay. The refixation of scale was upheld. The petitioner without going into the 4 correctness of the decision submits that as the earlier fixation was not within the domain of this petitioner nor the petitioner has been charged of having any role in the said fixation rather the Electrical Executive Engineer himself has admitted that the earlier fixation had been vetted and approved up to the Board level, it is wholly unjust and unreasonable on the part of the respondent authorities to have proceeded to recover the amount of Rs. 66,491/- from the retiral benefits admissible to the petitioner. Learned counsel thus submits that the recovery besides being unreasonable and unjustified is also not fit to be sustained on equitable grounds, moreso for the reason that the fixation of salary was approved up to Board level. Indisputably, the petitioner is not charged by the respondents of having misrepresented for getting the scale. Indisputably, the scale granted to the petitioner was initially approved up to the Board level and has been subsequently revised on the face of the objections raised by the audit. The correction of the error may operate prospectively but cannot arm the respondent to effectuate recovery. 5 In the circumstances the case of the petitioner certainly does come within the exceptions set out in paragraph 26 of the Full Bench judgment rendered in the case of Ram Binod Singh reported in 2007 (3) PLJR 398. The order of the respondent Executive Engineer upholding the recovery of Rs.66,491/- as contained in Annexure-6 is set aside and the respondents are directed to remit the said amount to the petitioner within a period of three months from the date of production of a copy of this order. The writ petition is disposed of with the direction aforesaid. Bibhash (Jyoti Saran, J. )