S.J.MUKHOPADHAYA, J. - (1.) The petitioner has challenged the order contained in Memo No. 2822 dated 9th November, 2001 whereby and whereunder the Financial Controller, Bihar State Electricity Board, Patna (B.S.E.B for short) while sanctioned D.C.R. gratuity in favour of petitioner, it has been ordered to recover a sum of Rs. 82,974.40 paise from his gratuity on account of excess pay drawn by the petitioner.
(2.) ACCORDING to petitioner the respondents cannot recover any amount from his gratuity, the benefits of promotion and fixation of pay having given in 1977 and petitioner retired about two years back on 31st January, 2000. Further, according to petitioner, his initial pay as on 27th May, 1978 was fixed at Rs. 696/ - which was revised from time to time and was fixed at Rs. 3,275/ - at the time of his superannuation i.e. 31st January, 2000. The office of the Electrical Executive Engineer, Nirsa, Dhanbad vide its order contained in memo No. 12 dated 7th January, 1983 issued order with regard to fixation of pay w.e.f. 27th May, 1978 to 19th November, 1982 in the light of B.S.E.B. office order No. 4562 dated 19th November, 1974 and letter No. 670 dated 28th August, 1982 issued by the Director of personnel, B.S.E.B., Patna. The last pay fixation was made by the order of the Electrical Superintending Engineer, Dhanbad in the revised scale vide memo No. 149 dated 23rd January, 1998 at Rs. 3050/ -w.e.f. 19th November, 1996 and Rs. 3125/ -w.e.f. 19th November, 1997. Subsequently, it was fixed at Rs. 3,200 w.e.f. 19th November, 1998. According to respondents, the pay of petitioner was not fixed properly since 1976 and it was fixed against the spirit of Board's Standing Order. The following statement made at paragraphs 7 and 8 of the counter affidavit to recover the amount from gratuity, as quoted below : 'That in this regard it is stated that the petitioner was initially working as Junior Accounts Clerk and had been promoted on the higher post of Accounts Assistant w.e.f. 19.11.1976 vide Board's office No. 5296 dated 19.11.1976. Such promotion to the petitioner obviously led to grant of higher pay scale with pay fixation benefit under the order of the competent Field Officer. Subsequently by an order Of the E.S.E., Dhanbad dated 19.3.1977 he was granted the selection grade pay scale of the post of Junior Accounts Clerk w.e.f. 27.5.1975. The Competent Field Authority in complete disobedience of the Board's Standing Order No. 515 dated 7.5.1976 marked as Annexure A to this counter affidavit, had again given him the pay fixation benefit with 12% which was not admissible to him in view of the aforementioned standing order of the Board. As a matter of fact the petitioner's salary was required to be fixed in selection grade pay scale of Junior Accounts Clerk with 12% pay fixation benefit and he had not to be given any further pay fixation benefit of 12% in the next promotion on the post of Accounts Assistant in the light of the aforementioned standing order of the Board dated 7.5.1976. This anomaly however in the pay fixation of the petitioner led to continuous excess payment to him in his entire subsequent payment of salary made on the basis of different pay fixation calculated and issued from time to time. That this anomaly in pay fixation of the petitioner and consequential excess payment of salary was detected only at the time of fixation of his pension when the pension papers from Dhanbad as well as the service book and other related documents were received for the issuance of the final order of payment of pension and gratuity from the Headquarter of the Board.'
(3.) SIMILAR question fell for consideration before the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 (Supp) 1 SCC 18. In the said case, the appellant Sahib Ram was provided with upgraded pay scale for librarian though he was not possessing the qualification. After retirement, the authorities held the grant of higher scale of pay as illegal, as was given due to wrong construction of relevant orders of the authority. It was ordered to recover the excess amount. Taking into consideration the aforesaid facts, the Supreme Court held as follows : - - - - '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 the appellant. The Principle of equal pay for equal work would not apply to the scales prescribed in the University Grant Commission. The appeal is allowed partly without any order as to costs.' In the case of Nakul Raut v. The State of Jharkhand and Ors., reported in 2002 (1) JLJR 597, the authorities raised the question of legality and propriety of an order of promotion after retirement of the petitioner of the said case at the time of payment of retiral benefits. His order of promotion was held illegal and it was ordered to recover the excess amount from the retiral benefits. A Bench of this Court held the recovery after retirement illegal and observed that the retiral benefits such as pension cannot be fixed in a lower scale as it is to be fixed on the last pay actually drawn by the employee.;