IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10970 of 1997 1. Md. Nasarul Haque, S/o Late Sheikh Junab Ali, Headmaster, Urdu Middle School, Maripur, P.S. Kazi Mohammadpur, District Muzaffarpur. 2. Md. Din Siddiqui, S/o Sheikh Mohammad Jan, Headmaster, Urdu Middle School, Chak Abdul Wahid, P.S. Kazi Mohammadpur, District Muzaffarpur. -------- Petitioners Versus 1. The State of Bihar through the Chief Secretary, Old Secretariat, Patna. 2. The Secretary, Finance Department, Government of Bihar, Patna. 3. The Director, Primary Education, New Secretariat, Patna. 4. The District Superintendent of Education, Muzaffarpur. --------- Respondents ----------- 5 12.08.2010 Heard counsel for the parties. Following prayer of the petitioners in this writ application:- 1(I) For quashing of the order dated 26.9.1997 as contained in letter No. 5857 and 5858 (Annexures-7 and 7/1) whereby the respondent No.4 directed the petitioner no.1 to deposit Rs. 64,048.20 in ten equal installments through Chalan and petitioner no.2 was asked to deposit Rs. 61,355/- in ten equal installments through Challan in District Treasury. (II) For issuance of a writ in the nature of certiorari to quash the arbitrary pay fixation, made by the Respondent No.4 vide order dated 19.6.1997 as contained in Annexure-4 and 4/1. (III) For issuance of a writ in the nature of Mandamus or appropriate direction or order commanding the 2 Respondents to desist from deducting the pay scale on the basis of erroneous and arbitrary pay fixation of Respondent No.4 dated 19.6.1997 (Annexure-4 and 4/1) which is based on wrong audit calculation on the basis of Clause-13(ii) instead of Clause- 13(iii) of Resolution No. 6022 dated 18.12.1989. (IV) For further issuance of a writ in the nature of Mandamus commanding the Respondents to fix pay of the petitioners strictly in accordance with Clause-13 Sub clause-III of the Resolution of the Finance Department as contained in letter No. 6022 dated 18.12.1989 read with the letter of the Director, Primary Education dated 5/6.3.90 as contained in Memo No. 299. The Respondents be directed to make correction in pay fixation of the petitioners, which was wrongly calculated by the Auditor of the Finance Department under Sub clause-II of Clause-13. (V) For further issuance of writ/order /direction commanding the Respondents to grant the benefit of notional increments in the pay fixation notwithstanding the Resolution of the Finance Department No. 1000 dated 22.2.93 as it has been held by this Hon’ble High Court in C.W.J.C. No. 2405 of 1997.” 3 now stands settled in view of the judgment of the Apex Court in the case of Syed Abdul Quadir Vs. State of Bihar reported in 2009(3)SCC 475, wherein, it has been held that any excess payment made by the authority either in ignorance of Rules or misinterpretation of the Rules would not make any employee liable for refund of such salary unless it is established that it was the employee, who, by playing fraud or misrepresenting his case, has been able to get such benefit of higher salary. In this case, as per the counter affidavit, in paragraph no.7 to 9, it is clear that there was anomaly in pay fixation of the petitioners on account of misinterpretation of Rule 22C of the Fundamental Rules and its adoption by the State of Bihar. Thus, it is absolutely clear that the petitioners had not misrepresented or played any fraud in fixation of their salary. Once this aspect becomes clear, the judgment of the Apex Court in the case of Syed Abdul Quadir (supra) would squarely cover this case. 4 That being so, while this Court would set aside the impugned order so far it relating to seeking to recover any amount from the petitioner but it is made clear that the salary of the petitioners would be fixed as per the entitlement without taking into account the wrong pay fixation made in their cases. In the event, the petitioners have already retired from service, their pension, gratuity and other retirement benefits would be calculated on the basis of the salary which they could have drawn had the pay fixation been not made incorrectly for which recovery was sought to be made. Subject to the aforementioned observation and clarification, this application is disposed of. Rsh (Mihir Kumar Jha, J.)