IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2294 of 2005 Nagendra Prasad Sinha, retired Office Superintendent, aged About 60 years, son of Late Chaturgun Sahai, resident of Mohalla-Prao Pokher Lane No. 1, Amgola, District-Muzaffarpur. ………Petitioner. Versus 1. Bihar State Electricity Board through its Secretary, Vidyut Bhawan, Bailey Road, Patna. 2. Financial Controller-1, Bihar State Electricity Board, Vidyut Bhawan, Bailey Road, Patna. 3. Joint Secretary, Vidyut Bhawan, Bihar State Electricity Board, Bailey Road, Patna. 4. General Manager-cum-Chief Engineer, Tirhut Area Electricity Board, Bhawanpur, Muzaffarpur. 5. Electrical Executive Engineer, Urban Electric Supply Division, Muzaffarpur. ………………………………….Respondents. ----------- 4. 11. 01. 2010. Mr. R. K. Sinha, learned counsel for the petitioner and Mr. Vijay Kumar Verma, Junior counsel to Mr. Vinay Kirti Singh, learned counsel representing the Electricity Board are present. The petitioner who retired from the service of the Board with effect from 31. 12. 2004 while serving as Office Superintendent has filed this writ petition being aggrieved by the Office Order No. 400, dated 27. 12. 2004, whereby directions have been issued for recovery of excess amount said to have been paid to the petitioner by reasons of incorrect pay fixation. The facts in brief is that, petitioner was appointed as Correspondence Clerk on 07. 02. 1966 and was granted Selection Grade with effect from 12. 04. 1977. The petitioner was thereafter promoted as Head Clerk with effect from 01. 08. 88. He was also granted Selection Grade in the 2 cadre of Head Clerk with effect from 01. 08. 1988 and Super Selection Grade with effect from 07. 04. 1996. Thereafter, the petitioner was promoted to the post of Office Superintendent with effect from 01. 10. 2004, and he retired from service on 31. 12. 2004. The petitioner was drawing his basic salary of Rs. 10,120/- on the date of retirement. It is just prior to his retirement that the impugned order dated 27. 12. 2004(Annexure-1) came to be issued under the signature of the Electrical Executive Engineer, Respondent No.5 holding that the fixation of pay-scale of the petitioner had not been correctly done and by reasons thereof, the petitioner had drawn excess amount and which was liable for recovery from his retiral dues. The petitioner questioned this action of the Respondent-Board by filing the present writ petition. A counter affidavit was filed on behalf of the Respondent-Board and its authorities and while relying upon several circulars issued by the Board it was stated that the petitioner had drawn excess salary during the service period by reasons of the promotion given to him and as the promotion itself was not lawful, hence the excess salary drawn by him was liable for recovery. A supplementary affidavit has been filed on behalf of the petitioner. Reference has been given to a Bench decision of this Court passed in C.W.J.C. No. 7882 of 2002 (Mahendra Mandal Vrs. Bihar State Electricity Board and 3 others) wherein identical issue had been raised. This Court upon consideration of the contention raised on behalf of the petitioner of the said case regarding the order of recovery and the proceedings undertaken by the Board came to the conclusion that action of the Board in initiating recovery from the retiral benefits of the petitioner was not sustainable and the order of recovery was quashed and the respondents were directed to refund the amount recovered from petitioner’s gratuity. The opinion formed by the Court was in the light of the Full Bench decision of this Court reported in 2007(3) P.L.J.R. 398 (Ram Binod Singh and Ors. Vrs. Bihar State Electricity Board. Learned single Judge while passing the order held that petitioner could not be held responsible for pay- fixation carried out by the authorities of the Board and thus, after superannuation, the authorities of the Board had no jurisdiction nor were they entitled to recover the amount on the pretext of payment of excess salary. The Judgment of learned single Judge was also confirmed by a Division Bench of this Court in the order dated 01. 05. 2009 passed in L.P.A. No. 989/2008 (Bihar State Electricity Board Vrs. Mahendra Mandal). The Order(s) of the Single Judge and the Division Bench has been placed on record at Annexures-8 and 9 to the supplementary affidavit filed on behalf of the petitioner. 4 Thus following the Bench decision of this Court passed in C.W.J.C. 7882/02 as affirmed in L.P.A. No. 989/08, this writ petition is allowed and the order of recovery dated 27. 12. 2004, (Annexure-1) is set aside and the Respondents- Board is directed to make refund of the amount of Rs. 1,08,887/- to the petitioner within a period of six weeks from the date of receipt/ production of a copy of this order. m.p. (Jyoti Saran,J.)