IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11405 of 2000 BRAJ KISHORE TIWARI Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : M/s Satyendra Nrn. Singh & G.N.P. Singh,Advocates For the State : Mr. J.C. to AAG-III For the Accountant Genaral : Mr. L.P.K.Rajgrihar, Addl.Standing Counsel. ------------ 12/ 12-08-2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Accountant General. In view of the contentious issue with regard to right of an employer to recover an excess amount paid to an employee during his service period or after his retirement being pending in this Court for consideration in CWJC No.8677 of 2003 and other cases, this writ application, by order dated 07.7.2005, was also ordered to be taken up along with the said writ petition. Ultimately, a batch of cases were referred to a Full Bench where the issue has been authoritatively decided by a judgment as reported in 2007(3) PLJR 398(F.B.). It has - 2 - been clearly laid down that if the excess amount has been paid to an employee by any act of mistake in calculation/fixation in the teeth of apparent legal provision providing otherwise, an employer is entitled to recover the amount during the service period of the employee as also after the retirement of the employee. However it has been held that if the wrong payment has resulted due to wrong interpretation of the statutory provision consciously approved and adopted by a competent authority, no recovery can be made on the basis of such wrong interpretation being discovered later on by any higher authority or by competent court of law. After giving that authoritative pronouncement, the Full Court referred the writ matters, which were tried along with LPA No.726 of 2004 and decided by the Full Bench, to be taken up by respective Benches of the Court and to be decided in view of the law laid down by the Full Bench. Thus this case has travelled to this Court for adjudication. In this case subject matter of the case was mentioned as retirement benefits and - 3 - hence it has been listed before this Bench. The facts of the case are that initially petitioner had filed this case for fixation of his pension in the promoted scale, for release of gratuity amount, amount of commutation of pension, encashment of unutilized leave etc. Petitioner pleaded that he had been rightly given first time bound promotion and the second time bound promotion and, therefore, he is entitled for fixation of his pension etc. on the basis of his pay scale in the promoted scale. Respondents have filed a counter affidavit in the case, in which they have stated that the petitioner was granted first time bound promotion and second time bound promotion provisionally and the matter was pending before the Finance Department for final approval. Finally the Finance Department examined the matter of the petitioner and held that the petitioner has been wrongly given time bound promotions as he has not passed the accounts examination, required to be passed by a Clerk of the grade, periodically held by the Revenue - 4 - Department. The respondents have annexed a letter of cancellation of the two promotions and the order for recovery as contained in Annexure-B. In view of the stand of the respondents in the counter affidavit, petitioner filed a rejoinder to the counter affidavit as well as an interlocutory application no.1153 of 2008 for amending his prayer made in the writ application by challenging the orders of cancellation of his promotions as contained in Annexure-10 to the rejoinder to the counter affidavit, and its follow up actions/orders of fixation of pay scale and recovery of alleged excess paid to him in the lower scale as contained in Annexures-11, 12, and 12/A to the rejoinder. The petitioner has also enclosed the Government decision dated 12.8.1992 as contained in Annexure-13 to the interlocutory application, in support of his contention that as he has been granted first time bound promotion with effect from 01.4.1981, he was not required to pass accounts examination and it was not an essential requirement for grant - 5 - of first time bound promotion. Consequently, the same could not be also a ground for denial of second time bound promotion as the said requirement stood waived in the case of promotion granted prior to 01.9.1983. I.A.No.1153 of 2008, in the circumstances, is allowed and the prayer of the petitioner in the writ application is treated to be modified as prayed for. From a bare reading of the said decision dated 12.8.1992, it is apparent that the requirement of passing of accounts examination was made mandatory only with effect from 01.9.1983. In the said order of the Government it was stipulated that incumbents, who have already been promoted prior to the said date, shall not be reverted on the ground that they have not passed the accounts examination. Consequently, their other promotions shall also not be effected, if they fulfilled other conditions for promotion. Relevant provision of the said letter of the Government decision dated 12.8.1992 as contained in sub-clause (1) of paragraph-4 is quoted herein below for ready - 6 - reference : “ 4. - Ô± Õk Õk ” It is not the stand of the respondents that the petitioner was otherwise not eligible and qualified for the said two promotions. Their only stand in the counter affidavit is that in view of the letter of the Government dated 14.12.1985 (Annexure-A) petitioner was not entitled for promotion at all. Admittedly the said Government letter dated 14.12.1985 operates prospectively; whereas exemption from requirement of passing the said examination was given to the employees who have been promoted prior to 01.9.1983 by said - 7 - subsequent letter dated 12.8.1992. Thus, there appears to be no conflict between the Government letter dated 12.8.1992 annexed as Annexure-13 with the interlocutory application of the petitioner and the letter dated 14.12.1985 annexed as Annexure-A to the counter affidavit. In view of this clear legal position, it is apparent that the petitioner who was promoted with effect from 01.4.1981 was not liable to be reverted to the original pay scale upon cancellation of his first time bound promotion as well as second time bound promotion on the ground of non-passing of accounts examination. In the circumstances, the orders of cancellation of promotion of the petitioner as contained in Annexure-10 is hereby quashed and the consequential orders issued by the respondents, vide Annexures-11, 12 and 12/A are also quashed. Petitioner is held to be entitled for his promoted pay scales and consequent fixation/re-fixation of his pension as per his promoted scales and payments of his retirement benefits - 8 - accordingly. This Court has been informed that consequent to issue of impugned orders, recovery has already been made from the petitioner. Respondents are therefore directed to refund the amount, so deducted, to the petitioner within two months from the date of receipt/production of a copy of this order. The respondents shall issue all other consequential orders and necessary advice in the matter and communicate the same to the Accountant General within two months from the date of receipt/production of a copy of this order. Upon receipt of the necessary communication from the State Government, the Accountant General shall issue necessary authority in the matter for grant of pension to the petitioner in the appropriate scale from the due date within one month thereafter. In the result, this writ application is allowed with the aforesaid observations and directions. ( J. N. Singh, J. ) A.H.