IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12004 of 2002 BALAK RAM CHOUDHARY s/o late Lakhi Chand Choudhary, resident of village sohagpur, P.O. Chohatta Anchal and P.S. Kishanpur, District Supaul. Versus 1.THE STATE OF BIHAR 2.The Director, Department of Primary Education, Bihar, Patna. 3.The Regional Deputy Director of Education, Koshi Division, Saharsa. 4.The District Superintendent of Education Cum Sub. Division Education Officer., Supaul District Supaul. 5.The District Accounts officer, Saharsa incharge of Supaul Saharsa. 6.The District Treasury Officer, Supaul. 7.The Block Extension Education Officer, PIpra, District Supaul. 8.The Headmaster, Girls Middle School, Katiya Rahi, Anchal Pipra, district supaul. ----------- 4 28/6/2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this writ application is being filed for quashing the office order dated 3.12.2000 containing in memo no.1850-3 issued by the respondent D.S.E. whereby and whereunder the promotion granted to the petitioner in Matric Trained scale of pay w.e.f. 1.5.85 has been cancelled and shifted to 1.1.1993 as also consequential order dated 24.5.2002 issued by the respondent Headmaster by which the alleged excessive amount paid to the petitioner is being recovered from him.” Counsel for the petitioner with reference to the aforementioned prayer would submit that it was not on account of any fraud or misrepresentation on the part of the petitioner that his promotion in matric trained scale of pay was earlier notified by the 2 competent authority w.e.f. 1.4.1985 with consequential benefit of its payment. Therefore, he would also submit that even if the action of subsequent recovery by the same competent authority, on the basis of order of this Court, with regard to entitlement of the petitioner for such promotion only w.e.f. October, 2001 be correct, the petitioner could not be subjected to any recovery of any excess amount already paid to the petitioner. He would further submit that such impugned order was passed at a point of time when the petitioner was in service, but now as he has already retired, the petitioner should not be subjected to any further order of recovery more than whatever has already been recovered from the petitioner., Counsel for the State in defence of the action of respondents would submit that the petitioner as a matter of fact was not entitled for such promotion w.e.f. 1.4.1985 and therefore when such payment was made to him on a conditional basis, he cannot be absolved from the liability of paying back the excess amount which he has already drawn. In the opinion of this Court, if the authorities had sought to reduce the pay scale by shifting the date of his promotion of the petitioner which in tern had its civil and evil consequences there was a definite requirement to at least give a notice and/or opportunity of hearing to the petitioner. Thus in the aforesaid circumstances justice will be done to both the parties by giving following directions:- 3 (i)The Respondents are restrained from realizing any further excess amount which could not be recovered earlier from the petitioner due to interim order passed by this Court in this case on 31.10.2002. In other words whatever amount has already been recovered from the petitioner will not be refunded but then for the rest of the amount sought to be recovered this Court would restrain the authorities from making such recovery. (ii)It is, however, made clear that computation of salary of the petitioner and retirement benefit of the petitioner would be fixed on the revised pay scale as drawn in terms of order passed by the authorities in the month of October, 2001 and therefore the petitioner will get the benefit of fixation of his pay in time bound promotion only w.e.f. 1.1.1993 and not w.e.f. 1.1.1985. With the aforementioned observations and directions this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)