The main legal point established is that orders with civil consequences must be passed after giving the concerned party an opportunity to be heard, and excess payment due to a wrong principle of calculation, without misrepresentation or fraud, should not be recovered.

JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing the office order No.67 dated 19.08.2009; whereby the first time bound promotion granted to the petitioner and the benefits thereon accorded to him has been cancelled which was granted under the 4th Pay Revision Scheme of the State of Bihar way back in the year 1989.

3. Mr. J. P. Jha, learned senior counsel for the petitioner submits that the petitioner had retired on 31.07.2009 and after his retirement this order has been passed behind his back and order of recovery has also been passed. He further submits that the petitioner has not mis-represented anything for getting any extra benefit for time bound promotion and there is no fault of the petitioner in getting extra pay fixation.

Now the law is well settled; any order having civil consequences has to be passed after giving opportunity of hearing to the delinquent employee and following principle of natural justice.

4. Learned counsel for the respondent-State submits that the office order No.67 dated 19.08.2009 is wholly justified and has been issued pursuant to the guidelines given by Fitment Committee for Vth Pay Revision vide circular No.3M2-5- ve-pu-01/99 660 dated 08.12.1999 (2) of the Finance Department, Government of Bihar, wherein paragraph 11 stipulates that the State Government have decided to abolish the existing facilities of time bound promotions and selection grades shall ceases to be applicable w.e.f 01.01.1996.

Learned counsel further submits that each and every pay commission grants benefits and facilities to employees and makes changes of prevailing pay/promotion structure. The petitioner is availing all benefits of 5th pay revision e.g. enhanced pay scales, Assured Career progression etc.

He further submits that so far as the averment with regard to letter no. II 19.09.-est-791/dated 13.07.2009 of respondent No.2 is concerned; the same is not illegal and unconstitutional. In this letter respondent no.2 made bona-fide objections that without passing departmental/Accounts examination petitioner is not eligible for 1st time bound promotion. This objection is legal as per guidelines given in the letter No.3/P.A.R-04-2/89/4178 dated 12.08.1992 of the Finance Department. In this letter it has been made clear that 1st time bound promotion shall be given to those clerks only, who has passed the departmental/accounts examination, unless and until their 1st time bound promotion is due before 01.09.1983. This letter clearly says that any promotion without passing the exam is liable be cancelled.

In the instant case, petitioner has passed his examination on 09.11.1998 that’s why his promotion given w.e.f. 18.12.1989 is liable to be cancelled.

5. Having heard learned counsel for the parties and after going through the averments made in the respective affidavits, it appears that the petitioner has retired on 31.07.2009 and impugned order (Annexure-1) has been issued after his retirement. Admittedly; before issuing the order impugned, no notice was given to this petitioner and the order of recovery has been passed.

6. In this regard, the Hon’ble Apex Court in the case of Syed Abdul Qadir v. State of Bihar reported in (2009) 3 SCC 475, has laid down the law in paragraph 57 and 59 as under:-

“57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.

59. Undoubtedly, the excess amount that has been paid to the appellant teachers was not because of any misrepresentation or fraud on their part and the appellants also had n