The recovery made by the respondent-Board was non-est in the eye of law, and the court relied on legal provisions and interpretations from relevant judgments to reach its decision.

JUDGMENT :

Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioners praying therein for quashing the respective office orders, all dated 16.12.2005 (Annexure-1 series), whereby order has been passed by the respondent No.3 for recovery of increments and D.A alleged to have been drawn in excess due to non-passing of Hindi Noting and Drafting Examination by these petitioners.

3. At the outset, it is relevant to mention here that the aforesaid recovery was stayed by this Court, and vide order dated 03.01.2007 this Court has directed that till further order no recovery from the petitioners salary in the name of excess payment on account of non-passing the examination of Hindi Noting and Drafting Examination shall be made.

4. Mr. A.K. Das, assisted by Ms. Swati Shalini learned counsels for the petitioners submit that petitioners were appointed in the respondent-department and since their appointments they were given regular increments and pay scale and also promotion. All of a sudden, the respondent-authorities in view of an audit objection directed for deduction of the increments drowned allegedly in excess on account of late passing of Hindi Noting and Drafting Examination. The said order of recovery has been assailed in the instant writ application.

Learned counsel further submits that the respondent-Board has adopted the Bihar Government Service (Hindi Examination Regulation) 1968, however, in spite of adoption; the same was never given effect to nor the same was circulated among the employees and the petitioners were regularly given increment and promotion without any misrepresentation or fraud on their part. Learned counsel further submits that the petitioners subsequently passed their Hindi Noting and Drafting Examination, as such the action of the respondent is nonest and arbitrary.

Learned counsel lastly submits that the order for recovery has also been passed behind back of these petitioners, inasmuch as, no notice was given before passing the aforesaid order.

5. In order to buttress his argument learned counsel referred to the judgment passed in the case of Bihar State Electricity Board and Another Vs. Bijay Bhadur and Another reported in (2000) 10 SCC 99, wherein the issue that since payment has been made without any representation or a misrepresentation, the respondent-Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increment at an earlier point of time. Para 9 and 10 of the said judgment is quoted herein below:-

“9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 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 an expiry of about 14-15 years to replenish the Board exchequer from out of the employees’ salaries which were paid to them since the year 1979. It is on this score the High Court observed that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way. The High Court has also relied upon the decision of this Court in the case of Sahib Ram v. State of Haryana wherein this Court in para 5 of the Report observed: (SCC p. 20)

“5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from th