DINANATH RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) SHIVA Kirti Singh, J. - The prayer made in the writ application is in effect against annexure -3 an order dated 15.9.93 passed by the Regional Education Officer, Chriabariarpur by which a decision was taken to deduct an amount of Rs. 24,193.05 from gratuity payable to the petitioner after his retirement on 31.1.92 from the post of head master of an Elementary Nationalised School. The petitioner has prayed for refund of the amount deducted from his gratuity and also for a direction to fix his pension on the basis of scale of pay of Rs. 2,375/ -per month which was last paid to the petitioner before his retirement. From the perusal of annexure -3, it appears that in course of fixation of pension due to the petitioner, it was detected that since 15.6.84 he had been paid salary in higher scale and as per counter -affidavit of the respondents the said mistake had oc -cured due to grant of an increment to the petitioner by mistake. According to respondents since the petitioner had not passed Hindi Noting & Drafting Examination which was made a condition for grant of increment through a circular of the Government, the petitioner should not have been granted the higher increment in 1984. It was also admitted that petitioner 's pay scale at the time of retirement has been deducted on account of aforesaid fact and his pension has been determined on the basis of a lower scale than what he was actually getting at the time of his retirement.

(2.) LEARNED counsel for the petitioner has placed reliance upon a judgment of this Court in the case of Raghubir Pd. Singh vs. Bihar State Electricity Board and others reported in PLR 1995 Patna 247 to support his contention that in a case where no misrepresentation is attributed to the concerned employee, no recovery can be made on account of increment paid to an employee on account of a mistake of the authorities. In that case also the increment in question was alleged to be wrongly given because the petitioner of that case had not passed the departmental examination of Hindi Noting and Drafting. In the aforesaid judgment, learned single Judge relied upon the judgment of the Supreme Court in the case of Shiva Ram vs. The State of Haryana reported in 1995 Supplementary (1) SCC 18 for the proposition that even if more payment has been made in favour of an employee on wrong consideration of law, the order having been issued by the authorities, it was not open for them to recover the same because the employee concerned had not received such amount on any misrepresentation. The aforesaid judgment of learned single Judge has been approved and relied upon in a unreported judgment dated 19.5.98 by a Division Bench of this Court in C.W.J.C.No. 1007 of 1997 and C.W.J.C. No. 4576 Of 1997.

(3.) FOR the aforesaid reasons, the writ application is allowed and the respondents are directed to refund the amount deducted from the gratuity of the petitioner on account of annexure -3 and they are further directed to fix the pension of the petitioner on the basis of scale of pay which was last paid to him before his retirement. The aforesaid direction should be carried out expeditiously and in any case, within four months from the date of communication/production of a copy of this order. However, in the facts and circumstances of the case, there shall be no order as to costs.