IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7882 of 2002 MAHENDRA MANDAL Versus BIHAR STATE ELECTRICITY BOARD & ORS ----------- 9 21.08.2008 Heard learned counsel for the petitioner and learned counsel for the Board. In this writ application the petitioner has challenged Annexure-1, the memo dated 08.06.2002, by which the petitioner’s monthly pension has been fixed at Rs.4434/-. Petitioner has also challenged the order passed by the Financial Controller, as contained in Annexure- 2, by which an amount of Rs.81,828.30 has been ordered to be recovered from the gratuity of the petitioner on account of alleged excess pay drawn by him. The facts of the case are that the petitioner was appointed as Clerk in the Office of the Board in 1966. He was granted selection grade scale w.e.f. 1.7.1977. Thereafter, he was promoted as Head-Clerk w.e.f. 1.8.1982 and he was granted selection grade w.e.f. 1993. He got super selection grade scale in October, 2000. Petitioner retired from service as Head-Clerk w.e.f. 2 31.12.2001. Learned counsel submits that while petitioner was in service, a question arose before the Board with regard to wrong fixation of pay-scales to the employees of the Board on large scale. Therefore, by letter dated 18.1.2000 communicated to all the General Manager-cum-Chief Engineers under the Board, it was directed that a committee be constituted for scrutiny of the pay-scales granted to the employees of the Board and promotions granted to them. Pursuant to this order of the Board, General Manager-cum-Chief Engineer of Bhagalpur Division constituted a committed vide Annexure-7. The said committee examined the pay-scale and promotions granted to the employees of the Board under jurisdiction of the Bhagalpur Division. The committee also examined and reviewed the promotions and different pay-scales granted to the petitioner, and found it to be correct. Therefore, a report in support of the petitioner was submitted by the Committee vide Annexure- 8 with the signatures of the members of the committee dated 27.11.2001. 3 Soon thereafter, petitioner retired from service w.e.f. 31.12.2001. After his retirement on the basis of his promoted pay-scale and increments granted therewith, last pay of petitioner was fixed at Rs.9445/- w.e.f 21.8.2001 vide order dated 22.1.2002, as contained in Annexure- 10. Hence, as per the last pay of the petitioner at the rate of Rs.9445, petitioner’s pension ought to have been fixed at the rate of Rs.4722.50 per month. However when the pension payment order was issued fixing pension of the petitioner vide Annexure- 1, he found that his pension has been fixed at Rs.4434/- per month. Simultaneously the petitioner also received an order as contained in Annexure- 2 under the signature of the Financial Controller by which it was directed that an amount of Rs.81,828.30 was recoverable from the gratuity on account of excess pay drawn. Petitioner aggrieved by said two orders, moved this Court challenging the same. In the counter affidavit, the respondents have stated, with reference to a number of Standing Orders of the Board that 4 the order of recovery from the gratuity of the petitioner was passed on account of alleged excess pay drawn by him. As per the stand of the Board, since the petitioner had got one promotion and the selection grade scale in the cadre of Head-Clerk, he was not entitled to the benefit of 12% upon his promotion in super selection grade. Since the standing order of the Board was not enclosed with the counter affidavit, this Court directed learned counsel for the Board to bring the same on record. As such, a supplementary counter affidavit has been filed along with which standing orders as well as other relevant orders of the Board have been enclosed. Learned counsel for the Board has placed reliance on standing order No. 515 dated 7.5.1976, particularly, paragraph 3 thereof. For ready reference paragraph 3 of the standing order is quoted hereunder:- “Where promotional avenues are available, double benefit in fixation of pay shall not be allowed Deduction for the salary of those workmen who have already been benefited twice in the matter of pay fixation i.e. once in the Selection Grade and again in promotion shall be made immediately, in twelve equal installments or at the 5 rate of Rs. 60/- p.m. whichever will effect the recovery earlier.” Relying upon the said paragraph, learned counsel for the Board has submitted that the petitioner was wrongly given the benefit of 12% of pay the second time, therefore, it was a case of wrong fixation and the same was recoverable from the gratuity of the petitioner given after his retirement as per the law laid down by the Full Bench. Learned counsel for the petitioner, in reply, has referred first and second paragraph of the Standing Order no.125 dated 7th May, 1983 to contend that paragraph 3 of Standing Order no. 515 dated 7.5.1976 was specifically modified and the benefit of 12% was made admissible in cases of promotions also as was granted to the petitioner. For ready reference, paragraph 1 and 2 of the said Standing Order is quoted hereinbelow:- "In paragraph 3 of the Board’s Standing Order no. 515 dated 7.5.1976 it was decided that double benefit of pay fixation that is once at the time of removal of stagnation (Selection 6 Grade) and again on promotion by adding 12% shall not be allowed. 2. After careful consideration of the issue, it has now been decided to give advantage of adding 12% to the maximum of Rs.150/- in fixation of pay on promotion, also if the scale of pay of the post to which promotion is given is higher than the scale of pay of the post given earlier by way of removal of stagnation.” However, relying upon an earlier judgment of this Court in the case of Md. Siddique Versus B.S.E.B. Reported in 2003 (3) PLJR 681, this Court in a recent case of one Madan Prasad Versus B.S.E.B. (C.W.J.C. No. 7514 of 2002 dated 14.08.2008) has held that the said Standing Order no. 125 dated 7.5.1983 operates only prospectively. It is an admitted position that petitioner was given the benefit of 12% of pay w.e.f. 20.8.1982 (Annexure-3) on which date the said Standing Order dated 7.5.1983 was not in operation and the Standing Order No. 515 dated 7.5.1976 was holding the field which barred such grant of benefit the second time. Therefore it is not acceptable that the said grant of benefits to the petitioner w.e.f. 20.8.1982 was legal and valid. Learned counsel for the Board also 7 submitted that after the superannuation of the petitioner, there was an audit in the Board and audit team found the fixation of pay of the petitioner as wrong and the report of the said committee as wrong and therefore on the basis of said audit report, the order of recovery was passed against the petitioner and pension was fixed at the lower rate. Learned counsel for the petitioner submits that he has no knowledge of the said audit objection and no notice whatsoever was given to him about the same. Be that as it may, upon own showing of the respondents this was a clear case of interpretation of the Standing Orders of the Board and much confusion did prevail in the Board with regard to the effect and operation of the said Standing Order dated 7.5.1983, so much so that at one point of time the competent authorities of the Board after due scrutiny had found the petitioner entitled for the said benefit of 12% of pay, the second time upon his promotion to super selection grade. Even if after superannuation of the petitioner the same may not be found 8 correct but in view of the ratio laid down by the Full Bench of this Court in the case of Ram Binod Singh Vs. Bihar State Electricity Board, reported in 2007(3) PLJR 398, the respondents were not entitled to recover the excess amount, drawn by the petitioner on the basis of such benefit, from his gratuity. Learned counsel for the Board has submitted that there was undertaking given by the petitioner vide Annexure- C to the counter affidavit wherein the petitioner had agreed for recovery of any amount from his pension in case the pay fixation was found to be wrong. As per the learned counsel for the petitioner the said representation (Annexure- C) was filed on 25.2.2002 in the background of the fact that no retiral dues of the petitioner was released till then and he had fixed the marriage of his daughter which he had to solemnize and the petitioner was under financial crisis and therefore, he was compelled to give that undertaking to the Board which only facilitated the issue of pension payment order to him and release of 9 other retiral dues. Therefore, in the background of fact under which that undertaking was given by the petitioner, it cannot be held that estoppel operates against the petitioner from challenging the order of recovery and fixation of his pension at a lower rate. In the circumstances, this writ application is partly allowed and Annexure- 2 is quashed. The respondents are directed to refund the amount recovered from petitioner’s gratuity pursuant to Annexure- 2 within two months from the date of receipt/production of a copy of this order. Arvind/ ( J. N. Singh, J.)