Recovery of excess payment due to wrong fixation of pay can be made, and it depends on the facts of each case. It is not in consonance with equity, good conscience, and justice for employees to retain wrongly paid amounts.

1. The Bihar State Electricity Board and its Financial Controller (Pension) are the appellants before this Court and they are aggrieved by order dated 15.1.2002 passed in CWJC No. 6572 of 2000 by a learned Single Judge of this Court by which he has quashed the order dated 28.6.1999 issued by the appellant deducting Rs. 92,626.42 P., which was to be recovered from the writ petitioner-respondent as excess payment towards pay from the total sanction amount of gratuity payable to him.

2. The facts necessary for disposal of the present appeal are that the writ petitioner-respondent was appointed as Bill Clerk in the year 1964 and thereafter he was promoted to the post of Bill Collector in the year 1972. In 1976 he was promoted and confirmed on the post of Accounts Assistant. He was given selection grade with effect from 1.8.1988. He retired from the services of the Board on 31.9.1998.

3. The Board has come out with a Standing Order No. 385 dated 22.3.1973, according to which the Junior Accounts Clerk/ Bill Clerk/ Bill Collector shall be entitled to three advance increments after passing departmental examination. However Clause 3 of the said Standing Order provides that these advance increments shall not be taken into consideration on fixation of pay on promotion to the next higher grade. One Ramashray Sharma was promoted to the post of Accounts Assistant. His three advance increments in terms of Standing Order No. 385 dated 22.3.1973 were also taken into consideration for fixation of pay on promotion and accordingly his pay was wrongly fixed. The writ petitioner-respondent complained that his pay was less than that of his junior Ramashray Sharma and accordingly, the pay of the writ petitioner-respondent was re-fixed which was also not correct. According to the resolution of the Board No. 537 dated 16.7.1979, no annual increment was admissible without passing Hindi Noting and Drafting Examination. The aforesaid resolution was modified and it was decided that such employees/officers, who have attained the age of 55 years or have completed 30 years of service shall be exempted from passing the said examination and accordingly, the writ petitioner-respondent was exempted from passing the said examination in the year 1993. However, in 1994 he passed the Hindi Noting and Drafting Examination. In 1995, the audit section of the Board raised objection that pay of the writ petitioner-respondent was wrongly fixed and accordingly by Boards order No. 391 dated 29.12.1995 his pay was re-fixed and reduced. The writ petitioner also gave an undertaking before the Board to make recovery of excess overdrawal of pay. In the meantime, representation filed by the writ petitioner-respondent was rejected by the Board in 2000 and his pension was also fixed on the basis of reduced pay. It is to be mentioned here that the pay of Ramashray Sharma which was wrongly fixed by the Board was also re-fixed by the Board.

4. Before the learned Single Judge the writ petitioner-respondent only challenged the order for the recovery of the amount and the learned Single Judge relying upon the decision of the Apex Court in case of Sahib Ram V/s. State of Haryana & others, reported in 1995 Supp (1) Supreme Court Cases 18 held that even if the amount was wrongly paid to the writ petitioner-respondent as there was no fraud or misrepresentation on his part the Board has no power to recover the same and accordingly quashed the order dated 28.6.1999 as stated above.

5. The learned counsel appearing for the appellants-Board submitted that in view of the admitted fact that the salary of the writ petitioner-respondent was re-fixed on his representation that one Ramashray Sharma junior to him was getting more salary to him and later on when it was found that salary of both the employees was wrongly fixed decision was taken to reduce the salary. The order of reduction of salary became final and in such a situation the Board is entitled to recover the aforesaid excess amount w