IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4753 of 2008 Shiva Shankar Pd.Srivastava, son of Late Bhuneshwar Prasad, resident of Village-Parsauni Baij, P.O.-Kamrauli, P.S.-Piparahi, District-Sheohar. ……….Petitioner Versus 1. The State Of Bihar through the Commissioner-cum-Secretary, Primary and Adult Education, Department, Vikash Bhawan, Patna. 2. Director, Primary Education, Vikash Bhawan, Bihar, Patna. 3. The District Superintendent of Education, Sheohar. 4. The Area Education Officer, Sheohar. 5. The Senior Accounts Officer, Office of the Accountant General, Bihar, Patna. ……..Respondents. ----------- 02. 26.02.2009 Petitioner joined as Assistant Teacher in the year 1960 in Matric Trained Scale and retired on 31.01.1999 as Assistant Teacher in B.A. Trained Scale. After retirement his pension was stopped and he was directed to refund an amount of Rs. 25314.40/- on account of alleged excess payment made to him during his service period by wrongful grant of promotion in the year 1971. As petitioner’s pension was stopped he had no alternative but to pay this amount and get the pension restored. He challenged the same before this Court in C.W.J.C. No. 12925 of 2001 which was disposed of on 04.01.2001 directing the Director, Primary Education, Government of Bihar to hear the petitioner and pass necessary orders. Petitioner filed his representation which was rejected by the order impugned. The order impugned(Annexure-11) merely states that as pointed out by the Accountant General - 2 - petitioner had been given wrongful promotion as a consequence whereof he had been paid since 1971 excess emoluments as above mentioned which was rightly recovered. It is not in dispute that petitioner was in no way responsible for this discrepancy. This arose because of a government Circular issued earlier which was subsequently cancelled in the year 1996. It is because of this cancellation that the pay given to the petitioner became wrong and thus recoverable. The second grievance of the petitioner is with regard to deduction of Rs. 2200/- from his gratuity. The deduction of Rs. 2200/- from gratuity is submitted to be unauthorized and without any reason. It has to be paid back to the petitioner forthwith. So far as first contention is concerned, it is clear that petitioner was in no way responsible with the receipt of higher pay either by his conduct or misconduct but on basis of prevalent Circular, he was granted increment and then the Circulars were withdrawn. Merely because for some reason the entitlements are subsequently withdrawn will not effect adversely the petitioner even if there was an error committed. It was an error committed by the State itself even if it had a right to correct the error or mistake, it does not flow automatically that it would get the right to recover the same. Right to correct an error is different form recovery. Consequent to that error when the question of - 3 - recovery comes equities have to be balanced but there are different consideration to be taken in account. State can not commit a mistake and then make its employee suffer after retirement. That would be inequitous. In this connection I may refer to a recent decision to the Apex Court in the Case of Union of India and another Versus Narendra Singh reported in 2008(2) S.C.C. 750 wherein under similar circumstances the Apex Court set aside the order for recovery. In that view of the matter, the writ petition is allowed. It is held that the amount which the petitioner was forced to pay after his retirement for an error committed almost three decades can not be sustained. The said amount must be refunded to the petitioner forthwith along with an amount of Rs. 2200/- as deducted from the gratuity. Respondent No. 2, the Director, Primary Education, Government of Bihar would ensure the compliance of the Court’s order within a period of one month from the date a copy of this order is produced before him. The writ petition is accordingly allowed. Shageer (Navaniti Prasad Singh, J)