IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14371 of 2004 UMESH PRASAD SINGH S/O LATE Srinath Singh r/o VILLAGE- & PO- KUBAULIRAM, PS- TAJPUR (BANGARA) DISTT- SAMASIPUR--------PEPTITIONER Versus 1. BIHAR STATE ELECTRICITY BOARD THROUGH ITS SECRETARY. VODYUT BHAWAN, BAILEY ROAD, PATNA 2. THE CHAIRMAN, BSEB, VIDYUT BHAWAN,PATNA 3. THE SECRETARY, BSEB, VIDYAT BHAWAN,PATNA--- RESPONDENTS ----------- 6 23.1.2009 Heard learned counsel for the petitioner and the learned counsel for the Bihar State Electricity Board. Petitioner retired as Head Clerk from the Electric Supply Circle, Samastipur on 28.2.2002. After retirement petitioner was sanctioned pension and the same was fixed at Rs. 4723 per month which according to him was not inconformity with the last pay drawn which is Rs. 9895/- From the narration of thing the dispute is that the Board come to a consider opinion that the petitioner could not have been given two benefits of pay scales on the same post at the relevant time and it was based on an audit objection the benefit had to be withdrawn after retirement. But this issue has been settled down in a recent Division Bench decision of the Court in the case of Mundrika Devi v. Bihar State Electricity Board & Others (LPA No. 1241 of 2002). The Court had this to say in paragraphs 3 and 4 of the decision as follows: “3. In the instant case, it is not the contention of the Board that in the matter of alleged mistake, which resulted in excess payment, the appellant had any role to play. The excess payment, if any, is also not due to mistake in pay fixation, grant of increment or the like leading to wrong calculation of salary of the - 2 - employee. The mistake is also not at the ministerial level. Respondent-Board, in the instant case, after superannuation of the appellant, opined that pay protection given to the appellant, his promotion to selection grade and grant of 12% extra emolument was improper and incorrect; and because of improper and incorrect decision, excess payment has been made to the appellant, which is recoverable. It is not the contention of the respondent-Board that grant of any of them was not by the authority authorized to grant the same. It is the contention of the appellant Board that the grants themselves were not permissible by law and accordingly, any payment made on the basis of such grants is recoverable. 4. As we are bound by the judgment rendered by the Full Bench of this Court and inasmuch as the decision of the Full Bench, as quoted above, squarely applies to the present case, we have no other option but to allow the appeal and set aside the judgment and order under appeal, which we do hereby, and at the same time allow the writ petition by directing the Board to fix the retiral/terminal dues of the appellant, without taking note of the contention of the Board, as contained in its order dated 3rd April, 2000, which admittedly came into play subsequent to superannuation of the appellant.” In view of the above position this writ application is allowed. The order of deduction and recovery, if any, is set aside. Respondents are directed to fix pension on the basis of the petitioner’s last pay drawn and any deduction from the gratuity amount made in the meanwhile shall be refunded to the petitioner - 3 - preferably within a period of three months from the date of communication or production of a copy of this order This writ application is allowed. RPS (Ajay Kumar Tripathi,J.)