JITENDRA KURNAR Vs. BIHAR STATE ELECTRICITY BOARD

JUDGEMENT

(1.) IN this writ petition, petitioner is aggrieved by the order dated 6.8.1999, contained in Annexure - 3, whereby and whereunder the amount drawn against arrear increment by the petitioner has been directed to be adjusted by making recovery @ Rs. 2,000/ - per month from next salary bill against the pending recoverable amount for his not passing Hindi Noting and Drafting examination. After the said order, petitioner superannuated from service on 31.5.2000.

(2.) THE question as to whether such recovery is permissible came up for consideration by a Division Bench of this Court in the case of Bijay Bahadur & another V/s. Bihar State Electricity Board & ors. (C.W.J.C. Nos. 1007 and 4576 of 1997 disposed of on 19th May, 1998) and this Court besides relying upon the principle decided by the Apex Court in the case of Sahib Ram V/s. State of Haryana, reported in 1995 Supp.(1) S.C.C. 18 also held that as both the writ petitioners passed the aforesaid examination in the year 1993 itself, "they were entitled to all the increments as if such stoppage had never taken place. The Respondent -Board went up in Appeal to the Apex Court in Civil Appeal No. 6914 of 1999 against the said Division Bench judgment of this Court. The Supreme Court while disposing of the said appeal recorded concurrence with the observation in its earlier decision in Sahib Ram 'scase and came to a conclusion that since payment has been made without any representation or misrepresentation, appellant -Board could not possible be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The Apex Court further held that the act or acts on the part of the appellant -Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice, and that concept of fairness has been given a go -by. It was, thus, held that the actions initiated for recover/cannot be sustained under any circumstances. However, the Supreme Court, further, after noticing the factual aspect that the Respondents in Appeal (writ petitioner) were appointed in the year 1966 and were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after expiry of 15 years to replenish the Board exchequer from out of the employee 'ssalary which were paid to them since the year 1979, observed that it is on this score that the High Court observed that as both the petitioners have passed the examination in the year 1993, their entitlement for relief cannot be doubted in any way.

(3.) MR . Shivendra Kishore, learned counsel for the Board has submitted that, in fact, the present order is fully justified in view of the decision of the Apex Court in Civil Appeal No. 6914 of 1999 in which the Apex Court has disapproved the observation of the Division Bench of this Court that the Board would not be allowed to pass order for recovery of the amount as the said amount has already become due to them, and that the said observation sounds contrary to Rule 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on.