IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.2976 OF 2008 RAJ KRISHNA MALLIK, SON OF LATE RAMESHWAR MALLIK, RESIDENT OF VILLAGE AND POST OFFICE RATANPUR, POLICE STATION JALE, DISTRICT DARBHANGA. PRESENTLY, RESIDING AT MOHALA-12, PATHAR WARDE NO. 12, POLICE STATION SAMASTIPUR, DISTRICT SAMASTIPUR VERSUS 1. THE STATE OF BIHAR 2. THE COLLECTOR, DARBHANGA 3. THE ADDITIONAL COLLECTOR, DARBHANGA ******** 2 31/03/2011 The petitioner was appointed as a Draftsman in the year 1970 in the pay scale of 100-130 in the Darbhanga Survey Settlement Office. The petitioner was granted the first increment on 24.01.1971. According to the respondent-State, he was entitled to a salary of Rs. 205/-, whereas he was paid a salary of Rs 208/-. The extra salary was on account of the increment granted to him. In the subsequent years also, he continued to get the said increment and the replacement scales. The main objection of the respondent at Annexure-9 dated 13.11.2007, is that the petitioner could not have been granted the said increment in the year 1971 as he had not passed the Hindi Noting and Drafting Examination. It is accepted in the impugned order as contained in Annexure-9 that the rule for passing the Hindi Noting and Drafting Examination came into existence on 10.06.1977. The said rule is annexed in the counter affidavit, which would indicate the aforesaid 2 facts. It is also admitted that the moment the rule came into existence, the petitioner appeared for the Hindi Noting and Drafting Examination and was declared successful in the said examination. The present order has been passed on completely wrong premises that the petitioner would not be entitled to increment on the ground that he had not passed the Hindi Noting and Drafting Examination in the year 1971, when he was granted the first increment. Such a presumption is obviously misplaced. Where conditions are not laid down for being granted a higher pay scale, it cannot be said that there is a violation because the provision has been subsequently introduced by the State Government. I may state here that the petitioner retired on 31.08.2004 and the impugned order of recovery of the pay scale has been passed after his retirement on 13.11.2007. This is not a case where the petitioner has in any way made a mis-representation for grant of the higher pay scale. In view of the aforesaid facts, the order as contained in Annexure-9 dated 13.11.2007 is hereby quashed. The recovery of the sum of Rs. 28,110/- which has been deducted from the amount of leave 3 encashment should be paid back to the petitioner through the respondent no. 2, the District Magistrate, Darbhanga within a period of three months from the date of receipt/production of a copy of this order. This application is thus allowed. Anand ( Sheema Ali Khan, J. )