IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10513 of 1999 Janardhan Pandey, son of Late Pandit Basudeo Pandey, resident of Tari Mohalla, P.S. Arrah Town, District Bhojpur Versus 1. The Bihar State Electricity Board, through its Chairman 2. The Chairman, Bihar State Electricity Board, Bailey Road, Patna 3. The Secretary, Bihar State Electricity Board, Bailey Road, Patna 3A. Joint Secretary, Bihar State Electricity Board, Bailey Road, Patna 4. The Electrical Executive Engineer, Bihar State Electricity Board, Arrah ----------- 07/ 28.07.2010 Heard learned counsel for the petitioner and the learned counsel for the Bihar State Electricity Board (hereinafter referred to as the Board). 2. Petitioner, who superannuated while serving the Board as an Accounts Assistant in the Selection Grade with effect from 28-02-1997, is aggrieved by the order of the Electrical Executive Engineer, Electric Supply Division, Arrah, bearing Memo No. 615 dated 09-06-1999, Annexure-2 whereunder it has been held that at the time of grant of selection grade scale of Rs. 570/- 1015/-, his salary was wrongly fixed at Rs. 660/- taking into account the three advance increments, which were allowed to him after he passed three parts of the departmental examination in the scale admissible to the Bill Collectors i.e. Rs. 310/- to 490/-. 2 3. It is submitted on behalf of the petitioner that while granting selection grade scale of Rs. 570- 1015 on 27.5.1975 the authorities of the Board on their own fixed his salary at the time of grant of selection grade scale at Rs. 660/-. It is further submitted on behalf of the petitioner that as the petitioner did not misrepresented before the authorities for fixing his salary at Rs. 660/- the order modifying such fixation dated 09-06-1999, Annexure-2 as also the order directing recovery of the extra amount paid vide order dated 15-01-2000, Annexure-9 to the second supplementary affidavit be also quashed. 4. Counsel for the Board has opposed the prayer and has supported the order dated 9.6.1999, Annexure-2, whereunder it has been held that while fixing pay of the petitioner in the scale of Rs. 570- 1015/- on 27.5.1975, the pay of the petitioner was wrongly fixed at Rs. 660/- by including three increments, which were allowed to him when petitioner was serving in the scale of Rs. 310- 490. In this connection, he has invited my attention to the 3 provisions of the Standing Order No. G/D1-101/72-385 dated 22.3.1973, which, inter alia, provides that advance increments shall not be taken into account for fixation of pay after promotion in the next higher rank. It is further submitted that petitioner was allowed the scale of Rs. 570- 1015 when he was granted selection grade, as such, in the light of Clause (3) of the Standing Order dated 22.3.1973, petitioner should not have been allowed the benefit of three increments contrary to the provisions of Clause (3) of the Standing Order dated 22.3.1973. 5. Learned counsel for the petitioner, in rejoinder, submitted that Clause (3) of the Standing Order dated 22.3.1973 provides that the benefit of advance increment shall not be taken into account for fixation of pay after promotion is allowed to the next higher rank. While fixing the salary of the petitioner in the scale of Rs. 570- 1015, he was not allowed any promotion in the higher rank, but only selection grade scale of the post of Bill Collector, name whereof was later changed to Accounts Assistant. It is further 4 submitted that as petitioner was never allowed any promotion on higher rank while fixing his salary in the selection grade scale, he has been rightly allowed the benefit of three increments which he earned on passing of the departmental examination on 25.2.1973. In this connection, learned counsel further relied upon two judgments of the Hon'ble Supreme Court rendered in the case of Syed Abdul Qadir & Ors. Vrs. State of Bihar & Ors., reported in 2009(2) PLJR 74 (SC), paragraph 28 and in the case of Registrar, Cooperative Societies, Haryana and others Vrs. Israil Khan and others, reported in (2010) 1 Supreme Court Cases 440, paragraph 9 to buttress his submission that if any higher scale or monetary benefit has been allowed to a service holder without any misrepresentation made on his behalf then the said amount should not be recovered from him. 6. From the order dated 9.6.1999, Annexure- 2, it is evident that the authorities of the Board themselves, while fixing the pay of the petitioner in the selection grade scale of Rs. 570-1015, allowed him the 5 benefit of three increments, as such, petitioner has not misrepresented before the authorities to get his pay fixed at Rs. 660/- and if on the basis of such higher pay fixation any extra emoluments have been paid to the petitioner, it is not on account of misrepresentation of the petitioner but on account of mistake by the authorities of the Board. 7. In appreciation of the aforesaid submission as well, I set aside the order dated 9.6.1999, Annexure- 2 and consequential order dated 15.1.2000, Annexure-9 and direct that the amount of Rs. 39,310.35, which has been deducted from the gratuity of the petitioner be refunded to him as early as possible, in any case within two months from the date of receipt/ production of a copy of this order. 8. The writ application is, accordingly, allowed. Arjun/ ( V.N. Sinha, J.)