IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1539 of 2009 1. SHRI ANANDI PRASAD S/O LATE VIKAU LAL R/O VILL- MAINPURA, P.O- DANAPUR CANTT, DISTT- PATNA, PRESENTLY POSTED IN JAIL CONSERVATION OFFICE GUMLA 2. SHRI SIDHNATH PANDIT S/O LATE TEGHAN PANDIT R/O BADI KHAGAUL, P.O- KHAGAUL, DISTT- PATNA 3. SHRI JAGARNATH SINGH, S/O LATE SWARATH SINGH R/O MOH- HARUMU HOUSING COLONY, NEAR A/15, ARBINDNAGAR, RANCHI-12 4. RAMGATI SINHA S/O LATE SHISH NANDAN SINHA R/O VILL & P.O- BALUA, DISTT- PATNA PRESENTLY POSTED IN SOIL CONSERVATION OFFICE, GAYA 5. SHRI RAM BARAN SINGH S/O LATE RAM LOCHCHAN SINGH, R/O VILL & P.O- MAKHUILPUR, VIS-PALIGANJ, DISTT- PATNA 6. SHRI RAJNANDAN SINHA S/O LATE RAUDI SINHA R/O VILL- SUBDULACHAK, P.O-POANWAN, DISTT- PATNA 7. SHRI M.I.JOHN, S/O LATE M.C. ITLY, MADHUKEKUMRAL, VADAKENTHIL, P.O- PARIYARAM, VIS- MALLAPALLY THIRUWELLA, KERELA- 689695 Versus 1. THE STATE OF BIHAR null THROUGH THE SECRETARY & AGRICULTURE PRODUCTION COMMISSIONER, AGRICULTURE DEPARTMENT, NEW SECRETARIATE, (VIKAS BHAWAN) PATNA 2. THE SECRETARY AND COMMISSIONER , AGRICULTURE DEPARTMENT, NEW SECRETARIATE, PATNA 3. THE DIRECTOR, SOIL CONSERVATION, DIRECTORATE OS SOIL CONSERVATION, GOVERNMENT OF BIHAR, NEW SECRETARIATE (VIKASH BHAWAN), PATNA 4. THE COMMISSIONER AND SECRETARY TO THE GOVT. FINANCE DEPARTMENT, GOVT. OF BIHAR, PATNA 5. SHRI ISHWARI DAYAL RAI S/O LATE BIJYENDRA RAI R/O VILL- SHAHWAJPUR P.O-BISHANPURA P.S- BIHAR, DISTT- PATNA ----------- For the appellant :- Mr. Abhay Kumar Singh, Sr.Advocate Mr. Md. Anis Akhtar, Advocate Mr. Mahtas Alam, Advocate For the respondent :- Mr. Deenbandhu Prasad, G.P.-10 8 05.05.2011 The present appeal has been filed against the order dated 02.07.2009 passed by learned Single Judge in C.W.J.C. No.3061 of 1998 and another analogous case, wherein the 2 grievance of the petitioner was that the respondents have issued notice to the petitioners-appellants herein directing recovery of the amount paid to them towards pecuniary benefits in consequence to their appointment as Junior Engineer and 2nd time bound promotion. But, however, the learned Single Judge has denied to give any relief sought for on the earlier occasion when the petitioners have been appointed as Senior Surveyor in the Soil Conservation, Directorate under the agriculture Department of the State Government on the following dates :- 1. Sri Anandi Prasad 22.03.1965 2 Sri Sidhnath Pandit 09.01.1960 3 Sri Jagarnath Singh 20.6.1965 4 Sri Ramgati Sinh 10.02.1960 5 Sri Ram Baran Singh 22.03.1965 6 Rajnandan Sinha 11.06.1959 7 M.I.John 12.12.1957 Appellant nos. 1 to 5 were promoted to the post of Junior Engineers and were posted at different places within the State of Bihar and as appellant nos. 6 and 7 were on the identical post of Estimator and they were allowed benefit of 12 per cent 3 additional benefit in pay fixation on the said promoted posts of Junior Engineers. It is also contended by the learned Sr. Counsel that all of them except Sri Ishwar Dayal Rai, Sri Anandi Prasad and sri Ram Baran Singh allowed second time bound promotion w.e.f. 19.12.1989 after completion of 25 years of their services and they were also allowed 12 per cent benefit in pay fixation. Aggrieved by the same the appellants herein have chosen to file C.W.J.C. No. 8763 of 1993 and C.W.J.C. No. 1713 of 1993 and the same was allowed by this Court directing the authorities that as no show cause notice was served to the petitioners in April 1995 and the order was passed in January 1998 cancelling the second time bound promotional benefits, the order for recovery of such benefits in twelve equal monthly instalments from their pay/pension is not legal. It is further contended that the appellants have retired during the period 1993 to 1997 from their respective services. It is further contended that financial 4 benefits of second time bound promotion and other benefits was not made on the basis of any mis-representation or fraud on the part of the petitioners/appellants as such issuing notice for the recovery of the amount after their retirement will lead to be illegal. It is also contended that as per the law laid down by the Full Bench of this Court as in the case of Ram Binod Singh and Others vs. The Bihar State Electricity Board and others reported in [2007 (3) PLJR 398]. There cannot be any recovery of the amount after retirement of the persons concerned. The learned counsel also contended that as it is not a case of mis- representation or any fraud on the part of the petitioners, no direction can be given for recovery of the amount, if excess payment is made by the respondent authorities. The respondent authorities have no jurisdiction whatsoever to order for recovery of the aforesaid amount. The learned Government Pleader submits that in pursuance to the order passed by this Court earlier no representation have 5 been received by them as such direction was given for recovery of the amount in view of interim orders passed by this Court. The said recovery orders have been questioned in the present writ petition. Having gone into the merits of the case and having heard the parties, we are of the view that it is a case where the first time bound promotion with additional benefit of 12 per cent is made in the year 1974 and subsequently, it is continued up to the year 1974. No material has been placed before this Court by the respondent authorities showing that such payment is made by way of any misrepresentation or fraud on the part of the appellants herein. The contention of learned counsel for the respondents is that the appellants have admitted in their representation with regard to excess payment but that acceptance cannot be deemed as a legal acceptance to recovery the amount as per law laid down by the Full Bench in the case of Ram Binod Singh (supra) in which it has been held that if there is no mis-representation or fraud on the part of 6 the concerned employee in fixation of pay emanated from the department there should be reimbursement of the same, in case it is found that the pay fixation is wrongly made. Further in the case of Syed Abdul Qadir and others vs State of Bihar and Others reported in (2009) 3 SCC 475 it has been held that recovery of excess amount should be made where there is any misrepresentation or fraud on the part of the employee concerned or if it was done by applying a wrong principle or wrong interpretation of a rule/order. Such relief was granted not because the employee has any right but because the court has exercised its equity jurisdiction so as to avoid hardship to an employee who is not at fault. The Court in its discretion would permit recovery where the error is detected within a short time or where the employee has knowledge that he was getting excess payment by mistake. But, in this case there is no material placed before this Court to show that the excess payments are made by any misrepresentation or fraud on the part of the employee. Secondly, it is not the case that 7 the appellants were getting excess payment by mistake. In the absence of such material, we are of the opinion, that the order of the learned Single Judge has to be set aside following the law laid down by the Full Bench as also by the Apex Court reported in 2009 (3) SCC 475 (supra). Accordingly, this appeal is allowed. Learned Counsel for the appellant is directed to pay court fee of Rs. 100/- for the Second L.P.A. Ashwini (T.Meena Kumari,J.) (Akhilesh Chandra, J.)