CIVIL WRIT JURISDICTION CASE No.2002 OF 1997 ****** In the matter of an application under Article 226 of the Constitution of India. ****** SUKHDEO NARAIN PRASAD, son of Late Sheonandan Prasad, resident of Village- Mahnar, P.S.- Mahnar, District- Vaishali. …… Petitioner. Versus 1. THE STATE OF BIHAR. 2. Bihar State Electricity Board, through its Chairman, Vidyut Bhavan, Baily Road, Patna. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhavan, Patna. 4. Joint Secretary, Bihar State Electricity Board, Vidyut Bhavan, Baily Road, Patna. 5. General Manager-Cum-Chief Engineer, Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur. 6. Deputy Director of Personnel, Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur. 7. Deputy Director of Accounts, Muzaffarpur Thermal Power Station, Kanti, Muzaffarpur. ….. Respondents. ----------- For the Petitioner: Mr. Gopal Pandey, Advocate. For the Respondents: N o n e. P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ****** S.K. Katriar, J. This writ petition is directed against the order dated 16.3.1996 (Annexure-3), and the order dated 22.5.1996 (Annexure-4), whereby recovery has been sought to be made from the post-retirement benefits of the petitioner on account of excess payment of salary, and consequential benefits to him during the 2 period 16.7.1979 to 30.1.1984. The respondents have placed on record their counter affidavit. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. It appears that the petitioner had initially joined the services of the respondent Bihar State Electricity Board (hereinafter referred to as the ‘Board’), on 4.10.1960. By its resolution No.537, dated 16.7.1979 (Annexure- 1), the Board adopted the resolution of the Bihar Government requiring its employees to pass Hindi Noting and Drafting Examination which would qualify them for increments. Though the petitioner had not passed the Hindi Noting and Drafting examination, he was granted increments for the period 16.7.1979 to 30.1.1984. The petitioner was placed under suspension with effect from 21.1.1985, for the irregularities in the stores of which he was incharge. He was ultimately punished in the departmental proceeding. The petitioner was released from suspension by order dated 14.9.1987, with the direction that the salary for the period of suspension shall abide the result of the departmental proceeding. Since he was not receiving salary, he was not being paid for the time being increments which has fallen on or after 30.1.1985. As is obvious from the records, the petitioner completed thirty years of service on 4.10.1990. He superannuated from the services of the Board on 31.12.1991. The Board issued circular dated 9.8.1996, 3 whereby Hindi Noting and Drafting examination was dispensed with for those employees who have completed thirty years of service or had attained 55 years of age. 2.1) After the petitioner’s superannuation, it was detected during the course of audit that the petitioner had been given the aforesaid increments for the period 16.7.1979 to 30.1.1985, though he was not entitled to the same because he had not passed Hindi Noting and Drafting examination, leading to the impugned order for recovery of the excess amounts paid to him from his post-retirement benefits. Hence this writ petition. 3. Learned counsel for the petitioner submits that no fraud or misrepresentation is attributable to him for the increments paid to him during the period in question. He next submits that the recovery sought to be made after lapse of a little more than four years. 4. We have perused the materials on record and considered the submissions of learned counsel for the petitioner. We must first of all make it clear that the aforesaid circular dated 9.8.1996, relaxing the rule regarding passing of Hindi Noting and Drafting examination to certain categories of employees, was prospective in nature. The petitioner has superannuated much earlier and, therefore, the same does not apply in the petitioner’s case. It, therefore, automatically follows that the petitioner had to 4 pass Hindi Noting and Drafting examination in order to qualify for the benefits of increments for the period 16.7.1979 to 30.1.1984. 5. This takes us on to the question whether or not it would be fit and proper to allow recovery of excess amount paid to the petitioner after his superannuation. Law is well settled that discretionary, prerogative writ jurisdiction is exercised in favour of lawful persons who have respect for the due process of law. It is evident that the petitioner did not retire after devoted service to the Board. He was a tainted employee, subjected to a departmental proceeding, and punished. He was also not paid salary for the period of suspension beyond the subsistence allowance. In the peculiar facts and circumstances of the cases, we are not inclined to exercise our discretionary writ jurisdiction in favour of such an employee. 6. The writ petition is dismissed. (S K Katriar, J.) Birendra Prasad, Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna. Dated the 20th day of September, 2010. S.K.Pathak/ (NAFR) 5