IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11701 of 2006 ASHOK KUMAR, SON OF LATE SADANAND PRASAD, RESIDENT OF MOHALLA-GURHATTA, P.S.-MOJAHIDPUR, DISTRICT- BHAGALPUR, PRESENTILY RESIDENT OF MOHALL-PATLIPUTRA INDUSTRIAL AREA, P.S.-PATLIPUTRA, PATNA …………………… PETITIONER VERSUS 1. THE STATE OF BIHAR 2. THE INDUSTRIAL DEVELOPMENT COMMISSIONER, INDUSTRIES DEPARTMENT, BIHAR, PATNA 3. THE DIRECTOR OF INDUSTRIES, BIHAR, PATNA 4. THE DIRECTOR, UPENDRA MAHARATHI SHILP ANUSHANDHAN SANSTHAN, PATLIPUTRA INDUSTRIAL ESTATE, PATNA-13 5. THE DEPUTY DEVELOPMENT OFFICER, UPENDRA MAHARATHI SHILP ANUSHANDHAN SANSTHAN, PATLIPUTRA INDUSTRIAL ESTATE, PATNA-13 6. THE ADMINISTRATIVE OFFICER, UPENDRA MAHARATHI SHILP ANUSHANDHAN SANSTHAN, PATLIPUTRA INDUSTRIAL ESTATE, PATNA-13 7. THE SURVEY INSPECTOR, UPENDRA MAHARATHI SHILP ANUSHANDHAN SANSTHAN, PATLIPUTRA INDUSTRIAL ESTATE, PATNA-13 8. THE A.G., BIHAR, BIR CHAND PATEL MARG, PATNA ………………….. RESPONDENT For the Petitioner: Mr. Rajendra Kumar, Adv. Mr. Achutanand Sinha, Adv. For the State: JC to GP-18 ----------- 05. 17.05.2011 Heard learned counsel for the petitioner and the State. Initially, the petitioner had filed this application for two reliefs. The first relief was for quashing of Order, dated 23.05.2006, passed by the Director, Upendra Maharathi Shilp Anushandhan Sansthan, vide Memo No. 242, whereby a direction has been issued for deduction of Rs. 18,792/- from the salary of the petitioner in 15 installments at the 2 rate of Rs. 12,50/- per month and the second prayer was for a direction to the Respondent Authorities to make payment of his salary, which has been withheld by Order dated 4th of August, 2006. The salary of the petitioner has been withheld since October, 2006. So far the non-payment of salary part is concerned, that was allowed to the petitioner vide Order dated 01.05.2007, passed in the Writ Application. The only prayer of the petitioner now let to be decided is recovery of Rs. 18,792/- from his salary. Recovery order has been passed on the ground that increment has been allowed to the petitioner with effect from 1986-87 even without passing Hindi Noting and Drafting Examination. Petitioner passed Hindi Noting and Drafting Examination in the year 1998, as such whatever increment has been allowed, since 1986-87 to 1998, is illegal and in excess of his entitlement. In the audit report, a proposal for recovery of such increment amount had been made and finally by order dated 23rd May, 2006 direction was issued for recovery of that amount. Petitioner’s case is that initially vide Memo No. 4060, dated 09.11.1970, he was appointed as 3 Peon on the post of Store Attender, in the Sales Unit of Upendra Maharathi Shilp Anusandhan Sansthan. In the year 1984, he was promoted to the post of Store Keeper. In the year, 1996, vide Departmental Order No. 6715, dated 02.09.1996, the Sales Unit of Upendra Maharathi Shilp Anushandhan Sansthan was abolished and all employees working in this Unit were absorbed against different posts. Petitioner was also absorbed against the vacant post of Senior Craftsman. Specific case of the petitioner is that passing of Hindi Noting and Drafting Examination was not essential for him, prior to 1996, i.e., his absorption against the post of Senior Craftsman. Earlier he held post of Salesman, and it was not a post of Clerk. He passed Hindi Noting and Drafting Examination in the year 1998. He was given first increment with effect from the year 1986, even without passing of Hindi Noting and Drafting Examination. Passing of Departmental Examination was not essential for him. In the year 1998, he became entitled for increment, so far the allowing increment with effect from 1986 to 1998 is concerned, authorities themselves allowed it, considering his promotion. It is not being a case 4 in which petitioner is alleged to have committed any fraud or misrepresentation, for grant of such increment recovery could not have been made. Petitioner has placed reliance on a decision, reported in 2000 (10) SCC 99, where in a similar circumstance, it was held that recovery could have been made. The Apex Court has held that the requirement of passing the examinations can not be deemed to have been incorporated in the terms and conditions of service in absence of any intimation to the staff in that regard. Since increments were given during 14-15 years of service, not on behalf of any representation or misrepresentation of the employee and the employee was given benefit of increment, by the Respondent Authority themselves, considering all related provision, could not be deducted or recovered by the Authorities. In the Counter Affidavit, filed on behalf of the State, simply it has been stated that since only after passing of the Hindi Noting and Drafting Examination, petitioner would have been entitled for such increment, the amount received on account of such increment is recoverable. But there is no statement in the Counter Affidavit for the period 5 prior to 1996, there is no statement whether the post, which the petitioner held earlier, for allowing any increment, Hindi Noting and Drafting Examination was essential. There is no statement also that this increment allowed to the petitioner was either due to representation or misrepresentation of the petitioner or any fraud, committed by him. In this circumstance, there is no reason for treating it an illegal benefit allowed to the petitioner. The amount already paid to the petitioner can not be allowed to be recovered. In case the amount has already been recovered, Respondents are directed to refund the deducted amount to the petitioner. Increments, allowed to the petitioner right from the year 1986, can not be considered as illegal benefits. This application is allowed. The impugned order, contained Memo No. 242, dated 23.05.2006 (Annexure-3) is quashed. SKM (Mridula Mishra, J.)