BAIDHYANATH PRASAD SINGH Vs. JHARKHAND STATE ELECTRICITY BOARD

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS case is being disposed of at the stage of admission. The petitioner has prayed for direction upon concerned respondents to stop deducting amount from salary of the petitioner which is being deducted in view of Order No. 210/2390 dated 19.11.1997 (Annexure 2) issued by the Electrical Superintendent Engineer, Electrical Supply Circle, Dhanbad (respondent No. 3) on account of non -passing Hindi Noting and Drafting examination by the petitioner. 2001 (3) JCR 77 (Jhr) Tilak Dhari Sharma v. Bihar State Electricity Board and Ors. in support of his case. 4. The learned counsel appearing on behalf of the Board could not dispute that the Board can not recover the said amount. She argued that the petitioner has only challenged the recovery part of the said impugned order dated 19.11.1997 and not the refixation of salary. To this learned counsel for the petitioner submitted that as per the said order dated 19.11.1997 refixation of salary has been done and the petitioner is being paid less salary accordingly, which will be apparent from his objection dated 25.7.2001 (Annexure 4/1). In my view also the said order dated 19.11.1997 is also an order of refixation of the pay of the petitioner from 15.7.1979 to 7.8.1988. 5. Learned counsel for the respondents placed reliance on a case reported in (2000) 10 SCC 99, Bihar Electricity Board and Anr. v. Bijay Bahadur and Anr. I find that instead of helping the respondents, this case supports the petitioner. It has been found in the said judgment that the employees were being paid in the normal course of events their salaries together with all due increments and also promotions in the scale and grade. Resolution No. 537 dated 16.7.1979 was adopted by the Board making it necessary for the employees to pass the said examination, but inspite thereof all due promotions and increments were allowed to the employees. In the case in hand also, the petitioner was being paid his salary with normal increments during the said period from 15.7.1979 to 7.8.1988 i.e. for about 9 years before he passed the said examination on 12.12.1988. Even if there was any mistake in payment of such increment, the Board and its officers are responsible and parties to such mistake. There is nothing to show that the petitioner had represented or misrepresented in this regard. The Honble Supreme Court in the aforesaid case held that the Board was not entitled to recover such amount from the employees. The Honble Supreme Court has further held that no arrears of the stopped increment shall be payable even though the person would pass the examination later on in view of the Regulation 8 of the Bihar Government Service (Hindi examination) Regulation, 1968. 6. The said Regulation 8 is very clear that the stoppage of increment shall not be with cumulative effect and no arrears of the stopped increment shall be payable after passing the said examination. The case in hand is not covered by the said Regulation 8. In this case, the petitioner is not claiming the arrears of any stopped increment on account of non -passing of the said examination. The petitioner is praying that he passed examination in 1988 and after 9 years, pay cannot be refixed by the Board. He further drew my attention to the said judgment of Tilakdhari Sharma (supra) in which it is said that no sooner the person passed the examination, he becomes entitled to the increment as if the stoppage of increment has never taken place and also entitled to all consequential benefits. 7. In my considered view the Board is not entitled to refix the pay of the petitioner from 15.7.1979 to 7.8.1988 as has been done by the impugned order dated 19.11.1997. So far as the recovery is concerned, as already stated above, the Board is also not entitled to recover the amount as per the said order dated 19.11.1997. 8. In the result, this writ petition is allowed and the said order dated 19.11.1997 (Annexure 2) is set aside. The petitioner should be paid his salary which has been deducted from his pay, within two months from the date of receipt/production of a copy of this order.