IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8751 of 2005 BAIJU SHARMA Versus THE BIHAR STATE ELECTRICITY BOARD & ORS. ----------- 09. 21.04.2010 I.A. No. 1995 of 2010 The interlocutory application has been filed on behalf of the petitioner seeking permission of this Court to assail the re-fixation order as contained in Memo No. 193 dated 18.01.2006 placed at Annexure-11 together with the order sanctioning gratuity bearing Memo No. 236 dated 20.03.2006 (Annexure-11/A) in so far as it stipulates recovery of an amount of Rs. 1,38,295.90, passed by the Financial Controller during the pendency of the proceedings. The interlocutory application together with the prayer made therein is allowed. The petitioner is permitted to assail the orders as contained in Anneuxres-11 and 11A of the supplementary affidavit. Heard Mr. Surendra Mishra for the petitioner and Mr. Vijay Kumar Verma, junior counsel to Mr. Vinay Kirti Singh for the Electricity Board. With the consent of the parties the matter has been taken up for disposal at the stage of admission itself. Brief facts of the matter is that the petitioner was appointed as Correspondence Clerk on 14.10.1968. He was promoted to the post of Head Clerk on 02.09.1982 and was further 2 granted promotion to the post of Office Superintendent in the year 2003, from which post the petitioner superannuated with effect from 31.01.2005 and before the date of superannuation the petitioner had submitted his papers for payment of pension and other pensionary entitlements. Following the superannuation of the petitioner, the leave encashment amount was sanctioned and paid to the petitioner. In between the service period the petitioner was faced with suspension during the period 21.08.1995 to 28.11.1995 and which period was subsequently regularized by order dated 22.03.2005 placed at Annexure-3 of the writ petition. The petitioner was granted increments by order dated 06.04.2005 (Annexure-4) which was followed by a pay-fixation order dated 20.04.2005 (Annexure-6) and which again was followed by an order granting second time bound promotion dated 29.12.2005 as contained in Annexure-10, whereunder the petitioner was placed in the scale of Rs. 5530-11020/-, w.e.f. 2.11.2002. Admitted position is that the entire post retiral and other dues as found admissible to the petitioner since after the grant of second time bound promotion has since been paid to the petitioner without any disturbance. It is thereafter that under the impugned orders as contained in Annexures-11 and 11A respectively to the present proceedings, the respondents at the first instance carried out a pay-refixation with effect from 02.09.1982 to 02.11.2004 under an order dated 18.01.2006 as 3 contained in Annexure-11 and which was followed by an order sanctioning gratuity bearing Memo No. 236 dated 20.03.2006 issued by the Financial Controller who even while according sanction for payment of gratuity of Rs. 2,53,794.75, was pleased to order for recovery of an amount of Rs. 1,38,295.90 said to be the excess salary drawn by the petitioner. A perusal of the pay-fixation order as contained in Annexure-11 which was passed after almost a year of the retirement of the petitioner shows that the respondents have picked up a period from 02.09.1982 up to 02.11.2004 for carrying out a re-fixation. A counter affidavit followed by a supplementary counter affidavit was filed on behalf of the respondent authorities in an attempt to justify the impugned re-fixation order and the order of recovery but except stating that the petitioner ought to have been aware of the relevant rules, no other statement has been made in support of the impugned action of recovery. The order of recovery in absence of valid and supportive reasons and in view of the apparent violation of principles of natural justice coupled with the fact that the petitioner has not been attributed any role in the said fixation, cannot be sustained. The respondent authorities do not dispute the eligibility of the petitioner to scale rather it is the fixation of salary at that scale which is being doubted and which is sought to be corrected under the re-fixation order. There is no statement in the counter affidavit either explaining the stage 4 or the infirmity said to have entered in the earlier pay-fixation. Regard being had to the fact that the petitioner earned a time bound promotion after his superannuation vide order as placed at Annexure-10 itself implies that the service period/records and the earlier fixation were examined by the authorities concerned before issuance thereof. The refixation order issued in purported implementation of the order of promotion as contained in Annexure-10, in fact sets out to undo a settled position leading to civil consequences and that also in an ex-parte manner. Having regard to the circumstances noted above coupled with the fact that the case of the petitioner does not fall within the exceptions warranting recovery as set out in paragraph- 26 of the Full Bench judgment of Ram Binod Singh & Ors. Vs. B.S.E.B. & Ors. reported in 2007 (3) P.L.J.R. 398, the recovery would not be permitted. The writ petition is allowed. The re-fixation order as contained in Annexure-11 as also the order as contained in Annexure-11A in so far as it stipulates recovery is set aside. The respondents are directed to remit the withheld amount within a period of three months from the date of receipt/production of a copy of this order. However in the circumstances, there shall be no order as to costs. S.Sb/- (Jyoti Saran, J.)