IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1636 of 2009 Ravindra Jha . Versus The State Of Bihar & Ors . ----------- 6. 07.07.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 1.10.2008 holding his promotion and pay scale in Fitter Grade-II on 28.6.1981 was contrary to law reverting him to the post of Fitter fixing his pay scale and directing recovery of the excess payment made. The petitioner is stated to have superannuated on 31.10.2008. It is not in controversy that a show cause notice was given to him on 20.9.2008. In his reply he stated that he had nothing to say as recited in the impugned order. This has not been denied in the writ petition. Learned counsel for the petitioner has not been able to demonstrate to the Court any illegality in the grounds mentioned in the impugned order as to why the promotion and pay scale of Fitter Grade-II granted to him was in accordance with law and how the reasons mentioned in the impugned order were fallacious. That concludes the matter on merits with regard to the legality of the order. The next question that arises for 2 consideration is of the nature of the relief to be granted in view of the impugned order having been passed nearly 27 years later and whether it was equitable to allow enforcement of the same. The show cause notice or the final order does not make any reference to any steps taken by the petitioner to obtain that benefit or to persuade the respondents to grant him that benefit. No fault or misrepresentation on his part has been alleged. But at the same time, it cannot be lost sight of that the petitioner has not been able to raise an arguable defence for demolishing the impugned order as being contrary to official instructions and circulars. The Court is therefore required to now mould the relief in accordance with equity. Counsel for the petitioner has relied upon (2009) 3 SCC 475 (Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.) at Paragraphs 57 to 60 as follows:- “57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be 3 erroneous. 58. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. 59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter-affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the Rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellant teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellant teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellant teachers should be made. 60. Learned counsel also submitted that prior to the interim order passed by this Court on 7-4-2003 in the special 4 leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.” The reliance by the petitioner on (2008)12 SCC 219 (State of Kerala vs. B. Renjith Kumar) appears misconceived as it dealt with issues of parity in employment and equal pay for equal work. Counsel for the State has relied upon a Full Bench judgment of this Court in 2007 (3) PLJR 398 (Ram Binod Singh Vs. Bihar State Electricity Board). The Court can do no better then refer Paragraph-28 of that judgment that the view taken in the case of Bihar State Electricity Board & Ors. Vs. Madam Mohan Prasad 2001(2) PLJR 58 suffers from no error and it could be applied in appropriate cases and therefore ipso facto may not justify recover of monetary benefits already paid to the concerned employee. More recently the Supreme Court in (2008)2 SCC 750 (Union of India v. Narendra Singh) considering an order for cancellation of promotion 17 5 years later holding it to be inequitable moulded the relief at Paragraph-35 as follows:- “35. The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so that only few days have remained. He will be reaching the age of superannuation by the end of this month i.e. 31-12-2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. up to 31-12-2007. At the same time, we hold that since the action of the authorities was in accordance with statutory rules, an order passed by the Deputy Accountant General cancelling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all throughout.” The Court therefore holds that the petitioner has been unable to demonstrate any illegality in the impugned order. Simultaneously, the fault lies with the respondents alone in having given the benefit to the petitioner. Their lapse cannot visit the petitioner 6 with adverse consequences of having to refund what has already been received by him. Quite obviously, the enhanced pay scale received by him has been spent with passage of long years. If he is now asked to refund he will have to do so from his meager pensionary resources. Alternatively, deduction from his pensionary resources in the evening of his life when he has no other source of income may be extremely harsh. Even a 5 % withholding of pension has been considered a very serious matter in (2005) 3 SCC 501 (Ram Dayal Rai v. Jharkhand SEB) at Paragraph-17 as follows:- “17…The balance of convenience and the prima facie case is also in favour of the appellant. If the pensioner's benefit is cut at 5% out of the total amount of pension payable to the appellant, the appellant will suffer an irreparable loss and injury since, after retirement, the pensionary benefit is the only amount available to eke out a livelihood for the retired employees of the Government.” If the respondents have made any deduction from the salary of the petitioner they are directed to forthwith refund the same. However, in so far as the pensionary benefits of the petitioner is concerned, the Court finds it difficult to hold that he is entitled to fixation 7 of the same without taking into consideration the impugned order. The pensionary scale will now naturally have to be fixed in accordance with law from 1.10.2008 prospectively. The writ application is allowed but only to the extent indicated. P. Kumar ( Navin Sinha, J.)