- (1.) THE present writ petition has been preferred against the order passed by the respondents, which are at Annexures -2, 3 and 3/1 dated 12th March, 2008, 11th July, 2006 and 11th August, 2006 respectively, whereby, the salary paid to the petitioner has been ordered to be withdrawn and also order of recovery has also been passed by the respondents and that too in gross violation of catena of decisions rendered by the Hon'ble Supreme Court as well as Full Bench of this Court and also in gross violation of principles of natural justice.
(2.) LEARNED counsel for the petitioner submitted that there was no misrepresentation or fraud played by the petitioner for getting the amount, in question. This is not an allegation by the other side upon the petitioner. Even in the counter affidavit, this allegation upon the petitioner is absent. Thus, without there being any misrepresentation or fraud played by the petitioner, even if the amount is paid by mistake, the same cannot be recovered. Learned counsel for the petitioner has relied upon following decisions: (i) (2006) 11 SCC 492, (ii) (2006) 11 SCC 709, (iii) 2008 (3) JCR 655 (Full Bench) 2012 (2) JCR 315 Learned counsel for the petitioner submitted that in light of the aforesaid decisions, the orders at Annexures, 2, 3 and 3/1 may be quashed and set aside and the amount already deducted may be ordered to be refunded to the petitioner, within stipulated time and if it is not paid within stipulated time, the same may be ordered to be paid with some interest. Learned counsel for the respondents submitted that the petitioner was paid higher amount of salary, for which, he was not entitled. The details have been given in the counter affidavit and, therefore, order of recovery was passed by the respondents as per Annexures -3 and 3/1 and there is adjustment of Rs. 71,820/ - from the gratuity amount, which is payable to the petitioner. Thus, no errors have been committed by the respondents while passing the orders at Annexures -2, 3 and 3/1 and, therefore, this writ petition deserves to be dismissed.
(3.) HAVING heard learned counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the orders passed by the respondents dated 12th March, 2008 at Annexure2, order dated 11th July, 2006 at Annexure3 as well as order dated 11th August, 2006 at Annexure -3/1 to the extent to which it affects the present petitioner, mainly for the following facts and reasons: (i) The present petitioner was appointed as Bill Clerk with the respondents on 1st November, 1969 and, thereafter, he worked honestly, sincerely, diligently and to the satisfaction of the respondents. (ii) It appears that, thereafter, the petitioner was given time to time promotions and without any misrepresentation or fraud played by him, he was also given higher pay scales. The petitioner retired as an Accounts Assistant on 31st May, 2007. (iii) It further appears that the order at Annexure2 has been passed after the retirement of the present petitioner i.e. on 12th March, 2008 and looking to the order at Annexure2, it appears that no reasons have been assigned for adjustment of Rs. 71,820/from the amount of gratuity payable to the petitioner. What is the calculation of this amount, nobody knows. From where this figure has come in the mind of the concerned officer, that is also not known. No figure can come in the mind of the officer from heaven or sky. There is bound to be a definite calculation and there must be cogent reason for deduction of the sizeable amount to the tune of Rs. 71,820/ -. Nothing has been stated in the orders at Annexure -2. The order at Annexure2 is not only a non speaking order, but, it is violative of principles of natural justice. (iv) Moreover looking to the order at Annexure3 to the memo of the petition as well as order at Annexure -3/1, it appears that there is some allegation levelled against the present petitioner that he has received higher amount of salary to the tune of Rs. 58,72942 paise. Both the orders are dated 11th June, 2006 and 11th August, 2006 respectively. No calculation has been given for this amount. What is the basis of this calculation is not reflected in the orders. This figure cannot come in the mind of the officer from heaven or sky. There ought to have been definite calculation of such amount. No notice has been given before passing the orders at Annexures -3 and 3/1. It is submitted by learned counsel for the petitioner that had a notice been given to the petitioner, it would have been pointed out that there is no illegality in getting salary by him. The aforesaid amount was wrongly paid in the year 1979 and 1982, as stated in paragraphs 3, 4, 5 and 6 of the counter affidavit. (v) It ought to have kept in mind by the respondents, who is a "State  within the meaning of Article 12 of the Constitution that if the reasons are not stated in the impugned orders, then a non speaking order cannot be justified by giving detailed reasoning in the counter affidavit. (vi) It has been held by the Hon'ble Supreme Court in the case of Mohinder Singh Gill and anr. v. The Chief Election Commissioner, New Delhi and ors., as reported in (1978) 1 SCC 405, especially at paragraph 8, as under: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji : Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.  (Emphasis supplied) In view of the aforesaid decision, it appears that the order at Annexure2 dated 12th March, 2008, order at Annexure3 dated 11th July, 2006 and order at Annexure3/1 dated 11th August, 2006 are thoroughly non speaking orders. Sizeable amount has been ordered to be deducted. No reasons and calculations have been assigned and, therefore, whatever reasons have been given in the counter affidavit are of no use. The reasons ought to have been given in the administrative order, itself, otherwise all non speaking, void or illegal order will be speaking, valid or legal order by the passage of time and by giving reasons in the counter affidavit, what is under challenge is the reasoning of the impugned order and not the subsequent wisdom of the Government. The counter affidavit is a subsequent wisdom of the Government authority and this subsequently supplied wisdom cannot care the inherent illegality in the impugned orders. (vii) Looking to the impugned orders at Annexures -2, 3 and 3/1, it appears that there is no allegation levelled against the petitioner that he was given higher salary because of his misrepresentation or fraud played by him. With an open eye of the respondents, the petitioner's higher salary was sanctioned by the high ranking officers, every month. Learned counsel for the respondents submitted that the aforesaid amounts were paid to the petitioners in the year 1979 and in the year 1982, wrongly and, therefore, the same has been ordered to be deducted by the impugned orders i.e. after approximately two and half decades. (viii) Absolutely, illegality has been committed by the respondents, while passing the impugned orders at Annexures -2, 3 and 3/1. (ix) It has been held by the Hon'ble Supreme Court in case of Shyam Babu Verma and others Vs Union of India and others, as reported in (1994) 2 SCC 521, especially at paragraph no. 11, as under: "11. Although we have held that the petitioners were entitled only to the pay scale of Rs 330480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs 330560 but as they have received the scale of Rs 330560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same.  (Emphasis supplied) (x) Moreover, it has been held by the Honble Supreme Court in the case of Sahib Ram Vs. State of Haryana and Others reported in 1995 Supp (1) SCC 18, especially in paragraph 5, which reads as under: "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 the appellant.......  (Emphasis supplied) (xi) It has been held by the Hon'ble Supreme Court in case of Bihar State Electricity Board and Another Vs. Bijay Bhadur and Another, reported in (2000) 10 SCC 99, especially in paragraph nos. 7, 8, 9, 10 and 11, which read as under: "7. Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr. Pramod Swarup, learned advocate appearing for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement dehors the same does not and cannot arise. Mr. Swarup contended that Regulation 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant Board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply Sub -Division at Sheohar Town in District Sheohar on promotion. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only non -acceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Article 12 of the Constitution. 8. The contention in support of the appeal as regards the deemed incorporation in the terms and conditions of service cannot also find any support by reason of the fact that unilateral change of terms need not be had. There is no documentary evidence available on the record of this matter through which even an intimation to the staff can be said to have been effected and in the absence of which question of affording any credence to the submission of Mr. Swarup on this score does not arise. 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. 10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB. We do record our concurrence with the observations of this Court in Sahib Ram case and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a goby. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality. 11. While we record our concurrence as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect we do not feel inclined to accept the observations of the High Court pertaining to Regulation 8 of the Regulation. Be it noted that the High Court in para 13 of the judgment observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. This observation sounds contrary to Regulation 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. We, therefore, record our disapproval to this observation of the High Court.  (Emphasis supplied) 2001 (1) JCR 175 especially in paragraphs 4 and 10, which read as under: "4. The respondents in their counter affidavit have accepted that the petitioner retired under V.R. Scheme w.e.f. 20th August, 1999. However, plea has been taken that the date of birth was recorded as 26th October, 1941 and the date of appointment was 23rd November, 1958. On the basis of date of appointment, the petitioner having found to have worked for 42 years 11 months and 3 days and as no person can work more than 42 years, the excess payment made has been adjusted from the retiral benefits. 10. In the circumstances, the respondents cannot deduct any amount or adjust from the salary of the petitioner on the ground that he has worked for more than 11 (eleven) months beyond the period of retirement.  (Emphasis supplied) 2003 (1) PLJR 9 especially in paragraphs 4 and 5, which read as under: "4. Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement.;