IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7581 of 2005 DEOTANAND SINGH, son of late Brij Raj Singh, retired Sub Inspector of Police Patna at present resident of village-Karn Chapra, P.O. Karn Chapra, Police Station-Dekti, District-Ballia (U.P.) Versus 1. THE STATE OF BIHAR 2. Senior Superintendent of Police, Patna. 3. Accountant General, Govt. Bihar, Patna. ----------- 4 16.02.2010 Heard learned counsel appearing on behalf of the petitioner, learned counsel appearing on behalf of the State and learned counsel for the Accountant General. The petitioner who retired from the post of Sub-Inspector with effect from 31.12.2002 filed the writ petition for payment of his post retiral and other dues, questioning the order bearing memo No. 255 dated 18.3.2004(Annexure-1) whereby an exercise of refixation of the pay scale has been carried out by the Sr. Superintendent of Police, Patna, w.e.f. 1.8.1989 and directives were issued to the office to recover the excess amount drawn by the petitioner. The petitioner also challenges the consequential order contained in Memo No. 796 dated 4.8.2004 (Annexure-2) whereby an order has been passed to recover the amount of Rs. 1,63,232/- from the leave 2 encashment entitlement of the petitioner. The order further provides that in case of any balance remaining the same should be recovered from the pension entitlement of the petitioner. When the matter was taken up for disposal, learned counsel for the petitioner chose to restrict his relief prayed in the writ petition only to the recovery effected under Annexure-2. Learned counsel for the petitioner submits that the action of the respondent, Sr. Superintendent of Police in carrying out the exercise of refixation of his pay scale with effect from 1.8.1989 until the date of his retirement on 31.12.2002 is wholly arbitrary and misuse of power, resulting in unjust consequences and which also cannot be sustained on equitable grounds. He submits that the petitioner having superannuated from the post of Sub-Inspector way back on 31.12.2002 has not be charged with having any role in the matter of fixation of his salary. He submits that there is no dispute that the petitioner was entitled to the pay scale rather the only dispute is regarding the stage of fixation. Learned counsel thus submits that any infirmity 3 in the fixation of the salary on the correct scale cannot be attributed to the petitioner. He submits that it is wholly arbitrary and inequitable on the part of the respondents to have passed the orders and effected the recovery of Rs. 1,62,232/- from his post retirement dues. He further submits that the case of the petitioner does not come within any of the exceptions warranting recovery as set out in paragraph 26 of the Full Bench decision of this Court reported in 2007(3) PLJR 398 (Ram Binod Singh versus the Bihar State Electricity Board & ors.). Learned counsel for the State opposes the contention of the petitioner and submits that as the scrutiny of the fixation of the salary of the petitioner demonstrated that the same was not correctly done and required rectification, hence the mistake was rectified under the impugned orders. Learned counsel further submits that an error in pay fixation, can always be corrected by the authorities at any stage and that public money cannot be allowed to be retained. In the said circumstances learned counsel supports the orders of refixation and recovery passed, as 4 impugned in this writ petition. Upon consideration of the rival contentions advanced on behalf of the respective parties one thing is indisputed that the petitioner having superannuated from the post of Sub-Inspector w.e.f. 31.12.2002 did not have any influence in the matter of fixation of scale. It is also not the case of the respondents that the petitioner was instrumental in the pay fixation. It is also not their case that the scale was incorrect. The only case of the respondents is that the stage of fixation was not correct Having regard to the circumstances that the petitioner having retired on 31.12.2002, the respondent initiated a process of refixation of scale w.e.f. 1.8.1989, two years thereafter on 18.3.2004, followed by recovery on 4.8.2004, even in absence of any fault being attributed on the part of the petitioner, in my opinion the action is not only unjust and unreasonable but is also not sustainable on equitable grounds. Considering the ratio laid down in the judgments of the Full Bench (supra) this writ 5 petition is allowed, the order as contained in Annexure 2 is set aside and the respondents are directed to refund the amount of Rs. 1,63,232/- recovered from the petitioner, together with the other admissible post retrial dues, if not already paid, within a period of three months from the date of receipt/production of a copy of this order. The writ petition stands allowed to the extent aforesaid. Bibhash (Jyoti Saran, J. )