IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6167 of 2003 SATYANARAYAN LAL s/o late Nirbhay Narayan Lal, resident of village- Manhoura, P.O. Majhoura, P.S.Sursand, Subdivision, Sadar Sitamarhi, District- Sitamarhi. Versus 1. THE BIHAR STATE ELECTRICITY BOARD through its Chairman, Vidyut Bhawan, Bailey Road,Patna-1. 2. The Chairman, Bihar State Electricity Board, Vidyut Bhawan,Patna-1. 3. The Secretary, Bihar State Electricity Board, Vidyut Bhawan,Patna-1. 4. The Financil Controller (Audit), Bihar State Electricity Board, Vidyut Bhawan,Patna-1. 5. The Deputy Director (Audit) Accounts, Bihar State Electricity Board, Vidyut Bhawan,Patna-1. 6. The General Manager-cum-Chief Engineer, Tirhut Area Electricity Board, Muzaffarpur. 7. The Electrical Superintending Engineer, Electrical Circle,Muzaffarpur. 8. The Electrical Executive Engineer, Electric Supply Division, Sitamarhi. ----------- For the Petitioner :Mr.Ajey Kumar For the Board : Mr. Dharmeshwar Mishra _____ 8 2.9.2009 A peculiar situation has arisen in the present case. The petitioner was a Section Clerk in the Electric Supply Division, Bettiah of the Bihar State Electricity Board. He was granted Selection Grade on 4.12.1976 and was promoted to the next higher post i.e. the Head Clerk vide Board’s Office Order dated 7.4.1978. On promotion, so being given, his salary was fixed in the scale of Rs. 480 – 880/- after adding 12% of his basic pay. He was thus effectively given double benefits, first- pay of the higher post and second- addition of 12% of his basic pay . It appears that in course of audit in the year 1995-1996, the Auditor reported that grant of double pay fixation benefit to the petitioner in 1978 was wrong as this benefit was made available only in 1983 on wards. They suggested that recovery should be made against the petitioner accordingly. Petitioner 2 protested against the audit report. When the authority was not considering the same , petitioner filed a writ petition before this Court being CWJC No. 11841 of 2000, which was disposed of on 24.11.2000 directing the Board to dispose of the representation/objection of the petitioner in this regard. Petitioner filed his representation, which was rejected by order dated 26.4.2000 of the Deputy Director (Accounts).This has been challenged by the petitioner in this writ petition. Petitioner has subsequently brought on record the order of the Board through the Financial Controller dated 10.1.2004 by which it has been directed that from a sum of Rs. 2,32,205/- payable to the petitioner, a sum of Rs. 95,155.70 paise be recovered from the Death - cum- Retirement Gratuity .This deduction on ground of excess pay, as determined, pursuant to the audit report and the order of the Deputy Director ( Accounts).This has been challenged. With the consent of the parties the writ petition has been heard for disposal at the stage of admission itself as pleadings are complete. At the very out set I may frankly confess that as is usual in bureaucrat instead of simplifying the matter and procedure there is always an attempt to complicate the matter and create unnecessary confusion. Simplicity and clarity is not to be found in the Circular/Order issued bureaucrately that is what gives rise to litigation. It appears that by Office Order no. 456 dated 3 19.11.1974, procedure regarding fixation of pay of the Board’s employees on promotion from one post to another was fixed in suppression of all previous orders. In so far as we are concerned, what it said was that on promotion the employees would get in addition to the pay scale of the promotional post and additional amount by way of 12% of his basic salary. Thus, effectively, on promotion , an employee would get two benefits, first higher pay scale and second 12% additional benefit of his basic pay. This continued till Standing Order no. 515, dated 7.5.1976 was issued. As against the first Office Order dated 19.11.1974 applicable to all employees, this Standing Order no. 515 dated 7.5.1976 was restricted to workmen and it effectively denial the workmen of double benefits in pay fixation if promotional avenues were readily available. Thus, what was given by 1974 decision to all employees including workmen,was taken away from the workmen alone in 1976. This anomalous situation was then removed and by Standing Order no. 125 dated 7.5.1983, the Standing Order no. 515 dated 7.5.1976 was effectively rescinded. Thus , restoring 1974 of his order. As would be seen above, petitioner got selection grade in 1976 and promoted to the post of Head Clerk . Thus, he fell in between the period 1974 to 1983, the dark period. Before and after which there was double benefits, it is on these facts that his objection has been rejected. Petitioner’s submissions are short. He firstly submits that the wrong pay fixation was not his job. After two decades, the same cannot be recovered from him , more so, when he has already 4 superannuated on 31.7.2003 and the order of recovery is being made from his Death –cum- Retirement Gratuity on 10.1.2004 though pursuant to audit objection raised in 1995 -1996 itself. Secondly he submits that ,as would be seen from the facts above, in 1974, the pay fixation policy for all employees (officers included) was fixed granting double benefits. It was wrongly and arbitrarily withdrawn so far as workers are concerned but restored after negotiation with worker union in 1983 to the workers bringing them on par with all other employees . This would show the Board’s intention to maintain continuity of grant of double benefits. The Auditor and the Deputy Director (Accounts) were wrong in holding that double benefits was only available with effect from 1983. It is submitted that it was first made applicable in 1974 withdrawn so far as workers are concerned in 1976 and then restored in 1983. Lastly, it has been submitted that if such a dark period is held to be valid then it will create a very anomalous situation within a cadre itself. In a cadre, a person may get promotion in 1982, he would get only the pay scale of promotional post. His junior in the same rank gets a promotion after 1983 Standing Order. He would get the pay scale of the promotional post plus 12% of his basic pay in addition thereto. Thus, worker of the same rank in the same cadre, the junior would end up with the higher pay package than of his senior. That certainly cannot be permitted. Thus, it is submitted that what was granted to the petitioner could not be permitted to be taken away. Having considered the mater, in my view, the writ 5 petition must succeed and the deduction , as ordered by the impugned order, dated 10.1.2004 ,cannot be sustained and has to be set aside. No deduction much less, as noted above, can be permitted from Death- cum-Retirement Gratuity of the petitioner. From the sequence of event, as noted above, it would be seen that so far as officers were concerned (other than workers) they continued to get the double benefits, as provided in the Office Order 1974 uninterrupted . For a short period between 1976 to 1983, by Standing Order no. 515, dated 7.5.1976 workers alone were deprived of this, which benefit was restored by Standing Order no. 125, dated 7.5.1983. Standing Order no. 125 was nothing new. It was restoring status quo, as existing in 1974. In my view, the petitioner is correct in submitting that audit report as well as Deputy Director (Accounts) wrongly understood the Standing Order no. 125 dated 7.5.1983 as if it was conferring a right for the first time , which was not. It was only restoring the position, which was created by Office Order no.4562, dated 19.11.1974. I find strength in the submission of the learned counsel for the petitioner that if it be taken that the dark period between 1976 to 1983 has to be permitted to continue and operate, it would give rise anomalous situation. A worker of the same cadre in the same seniority list would be discriminated against for no valid reason. A senior, who gets promotion prior to 1983 and his junior who gets promotion after 1983 would have their pay differently in as much as junior would get more than senior in the same cadre. That can never be the intention of 6 any employer. That would be a hostile discrimination and grossly arbitrary. Further petitioner is correct in submitting that he had nothing to do with this pay fixation. The same was done in 1978 to the knowledge of every body. It is only in 1995, after two decades, objection was raised and now by order issued in 2004 above Rs. 95000/- is being sought to be deducted from Death-cum-Retirement Gratuity. That in my view, cannot be permitted at this late stage. Power to rectify may be there but the effect of such rectification, which is akin to restitution, depends on the discretion of the Court. Clearly, as aforesaid, it would be iniquitous on the part of the Board to be permitted to realize the said amount from Death –cum- Retirement Gratuity payable to the petitioner. In that view of the matter, the writ petition is allowed. The audit report and the order of Deputy Director (Accounts), dated 10.1.2004, directing deduction of the said amount from Death-cum- Retirement Gratuity of the petitioner are quashed. Board would be well advised to make entire payment of Death-cum-Retirement Gratuity to the petitioner forthwith. SINGH (Navaniti Prasad Singh, J.)