IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8067 of 2010 1. Md. Moinul Haque S/O Late Md. Ainul Haque R/O Vill.- Pupri, P.S.- Pupri, Distt.- Sitamarhi Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. The Secretary, Minor Water Resources Department, Govt. Of Bihar, Patna 3. The Deputy Secretary, Minor Water Resources Department, Govt. Of Bihar, Patna 4. The Chief Engineer, Minor Water Resources Department, Patna 5. The Superintending Engineer, Minor Irrigation Design Circle, Patna 6. The Executive Engineer, Minor Irrigation Design Division, Patna 7. The Commissioner-Cum-Secretary, Department Of Personnel And Administrative Reforms, Govt. Of Bihar, Patna 8. The Principal Secretary, Department Of Finance, Govt. Of Bihar, Patna 9. The Divisional Commissioner, Patna Division, Patna ---------------------------------- 3. 29.09.2011 Heard learned Counsel for the petitioner and the State. The petitioner is aggrieved by the order dated 18.8.2009 which grants him the benefit of first time bound promotion and also ACP from the date of exemption from passing the departmental examination. The petitioner is stated to have superannuated on 31.12.2009. It is not in controversy that the time bound promotion was granted to him on 20.1.1986.The contention of the State that it was provisional does not appeal to the Court by any standard of reasonableness and prudence that it remained provisional for years together till 18.8.2009. Whether the petitioner had passed the departmental examination or not, that he had applied for exemption on 11.6.2007 are issues which are hardly relevant today specially on account of his superannuation and long passage of time. The Court therefore holds that even if the time bound promotion was granted without passing of the departmental examination, the long passage of time and the subsequent events persuades the Court to hold that there is no justification for the respondents to make any recovery on that ground from him in view of his superannuated status. The Supreme Court in (2009) 3 SCC 117 State of Bihar vs. Pandey Jagdishwar Prasad at paragraph 19 has not approved of such recovery from superannuation benefits holding as follows:- ”19. … It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.” In so far as the claim for ACP is concerned keeping in mind that the petitioner himself applied for exemption on 11.6.2007 the Court finds no infirmity in the impugned order dated 18.8.2009 granting the same to him from the date of exemption. The aforesaid reasoning is based on the principle of severance of the order upholding one part of the same while striking down another part of the same by which the order still survives. Any deduction made from the retiral dues of the petitioner in pursuance of the impugned order from his time bound promotion benefits are directed to be refunded within a maximum period of three months from the date of receipt and/or production of a copy of this order. The writ application stands allowed to the extent indicated. Snkumar/- (Navin Sinha,J.)