Judgment 1. The petitioner initially joined in the Bihar State Electricity Board in the year 1961 as Work Sarkar. He became correspondence clerk in the year 1962 and in the year 1969 he became Bill Collector which post was afterwards redesignated as Accounts Assistant. The petitioners pay was revised on 1.4.1971 and annual increments were granted since then. Again his pay was revised to avoid anomaly with one Govind Prasad Gupta, Accounts Assistant, who was junior to the petitioner. That was done in the year 1977. Again his pay was refixed to take him at par with his junior Mahendra Prasad. Then in the year 1983, on a representation being made by the petitioner that his junior Ramashray Sharma, Accounts Assistant, was getting higher pay than that of the petitioner and, as such, on the basis of his representation petitioners pay was refixed. Again anomaly arose in comparison to the pay scale of Jitendra Pd. Sharma another Accounts Assistant who was junior to the petitioner and in the year 1985 his pay was again revised but then Jitendra Pd. Sharma for whom the petitioner got refixation was reverted from the post of Accounts Assistant and, as such, protection of pay which was granted to the petitioner was cancelled in the year 1988 and his pay was again revised. He was granted Selection Grade in the month of November, 1988. The petitioner although was granted increment but on the basis of the office order dated 11.10.1994 because of non-passing of Hindi noting and drafting examination the difference of salary towards excess payment was ordered to be recovered. It appears that the petitioner passed the Hindi noting and drafting examination in the year 1995 and then the petitioners pay was refixed and the increments granted to the petitioner since 16.7.1979 upto 23.7.1995 were sanctioned notionally. On 31.10.1996 the petitioner retired from Boards service and when all pension papers have submitted along with the service book and audit was done on it, it was found that excess salary was drawn by the petitioner from 16.7.1979 to 4.9.1999 and hence a sum of Rs. 33,795/- was decided to be recovered from the petitioner on account of late passing of Hindi noting and drafting examination. 33,795/- was decided to be recovered from the petitioner on account of late passing of Hindi noting and drafting examination. As the petitioner availed protection of pay several times in comparison to junior employees but it appears that pay protection granted to him in respect of junior Accounts Assistant Ramashray Sharma was improper as pay scale granted to Ramashray Sharma was reverted to a lower pay scale and excess pay given to Ramashray Sharma was ordered to be recovered. In that way, in comparison to Ramashray Sharma the refixation of the pay scale of the petitioner was wrong and hence the excess pay drawn by the petitioner was also decided to be recovered from the pensionary benefits of the petitioner. So in total an amount of Rs. 70,175/- was directed to be recovered from the petitioner of those two increments as mentioned above vide order dated 12.7.1999 as contained in Annexure-1. 2. The said Annexure-1 was challenged in this writ petition together with a prayer that the pensionary benefits of the petitioner should be calculated on the basis of last pay drawn by the petitioner and not on the revised pay as ordered by the Board. At the initial stage of this writ petition a Bench of this Court vide order dated 21.9.2000 held that the prayer for grant of pension to the petitioner on the basis of last pay drawn cannot be entertained and that prayer had been rejected and only on the basis of Annexure-1 regarding recovery portion the Board was asked to file counter-affidavit. In the counter affidavit the Board took the stand that as per Boards decision when, according to the circular of 1994, the petitioner was granted wrongly promotion and increments even though he did not pass Hindi noting and drafting examination, the same was rightly being asked to be recovered, as it is the Boards stand, as per the circular itself, that any increment or promotion granted if found afterwards to be irregular, the same can be withdrawn by the Board. Regarding the other portion of the recovery, the admitted position remains that the petitioner was granted refixation of pay scale on the basis of pay scale granted to Ramashray Sharma who was junior Accounts Assistant to that of the petitioner. Regarding the other portion of the recovery, the admitted position remains that the petitioner was granted refixation of pay scale on the basis of pay scale granted to Ramashray Sharma who was junior Accounts Assistant to that of the petitioner. But when Ramashray Sharmas scale of pay was found to be improper and irregular then he was reverted back to his proper pay scale and the excess pay drawn by Ramashray Sharma had been ordered to be recovered. In that way, the basis on which the petitioners pay was refixed vanished and, hence, such payment made to the petitioner on refixation of his pay was rightly ordered to be recovered. Thus, it remains that recovery was ordered on two grounds. First, on the ground of non-passing of Hindi noting and drafting examination and second, on the ground of improper refixation of pay of the petitioner on the basis of comparison of pay scale of his junior Ramashray Sharma. 3. On the first ground of non-passing of Hindi noting and drafting examination much water have flown by this time because of passing of contradictory orders by different Benches of this Court. Some Benches held that when such increment has been granted to an employee without any misrepresentation from the side of the employee concerned then recovery on that ground is not permissible when it could be found that ultimately during the service period the employee can fulfil the qualification of passing of Hinding noting and drafting examination. Now point has been settled not only on the basis of Saheb Rams case but also on the basis of judgment of the L.P.A. court in the case of Bijau Bahadur and another in C.W.J.C. no. 1007 of 1997 and C.W.J.C. no. 4576 of 1997. By threadbare consideration of the points raised by both the parties it was held by this Court that when there is no misrepresentation from the concerned employee and even on non-passing of Hindi noting and drafting examination increment was granted to the employee and afterwards he had qualified himself by passing such examination then such recovery cannot be ordered after the service of the employee reached its finality. The said order of the L.P.A. court has been upheld by the Apex Court in Civil Appeal no. 6914 of 1999. So there remains no scope of the Board to ask for recovery of the amount of Rs. The said order of the L.P.A. court has been upheld by the Apex Court in Civil Appeal no. 6914 of 1999. So there remains no scope of the Board to ask for recovery of the amount of Rs. 33,000/- and odd from the petitioner as from the counter-affidavit also it could be found that there was no misrepresentation from the side of the petitioner. Hence, recovery on that score is not permissible. 4. On the other score the balance of recovery asked, it appears that the Board has got a genuine stand. One Ramashray Sharma who was junior to the petitioner was granted higher pay scale to resolve the anomaly in comparison to the pay scale of Ramashray Sharma but afterwards it was found that Ramashray was granted pay scale, irregularly and then the higher pay scale granted to Ramashray Sharma was withdrawn and the difference of salary received by Ramashray Sharma in the higher pay scale has been ordered to be recovered. In that way, when the petitioner was granted pay scale to avoid anomaly in relation to Ramashray Sharma, the ground remained intact when the very basis of his granting of higher pay scale had been vanished. On this point there is a judgment of the L.P.A. court in Bihar State Electricity Board V/s. Madan Mohan Pd. and ors. being L.P.A. no. 542 of 2000 wherein it was held vide order dated 20.2.2001 that recovery on that score for wrong fixation of pay is alright and the court cannot interfere with it. The same stand has been taken by the Board by referring to the L.P.A. judgment that on that score at least the petitioner can have no case to stand. It is the contention of the learned counsel for the petitioner that such recovery had been asked in this score also without giving an opportunity of hearing to the petitioner and that without initiating any proceeding against him. But it appears from the counter-affidavit itself he has not controverted that during the service period itself. The petitioner was given a show cause notice but on perusal of that show cause notice it appears that the same related to passing or non-passing of Hindi noting and drafting examination but not on this point. But it appears from the counter-affidavit itself he has not controverted that during the service period itself. The petitioner was given a show cause notice but on perusal of that show cause notice it appears that the same related to passing or non-passing of Hindi noting and drafting examination but not on this point. It is the contention of the learned counsel for the Board that as per the Boards circular itself if any refixation of pay scale is made the same is subject to scrutiny of subsequent finding that if the higher pay scale granted is found to be not proper, the same can be recovered. The Division Bench in L.P.A. no. 542 of 2000 (supra) this point has been elaborately discussed and held that the Board got every right to recover that amount. 5. Now the question remains whether recovery has been done in respect of Ramashray Sharma or not. It appears that there is an order given for recovery but whether such recovery has been actually done or not is not known. But then also the very basis on which the petitioner had been granted refixation of pay scale to make him at par with Ramashray Sharma had gone away when Ramashray Sharma have been reverted to his proper pay scale. 6. In that way, on the basis of the judgment of the Division Bench in L.P.A. no. 542 of 2000, I hold that the Board has got every right to recover the excess payment drawn by the petitioner for illegal/ irregular refixation of his pay in relation to Ramashray Sharma. 7. In that way, this writ petition is partly allowed. Recovery as per Annexure-1 in respect of the amount to the tune of Rs. 33,000/- and odd for non-passing of Hindi noting and drafting examination in time is hereby only quashed keeping the other recovery portion intact. 8. This writ petition is disposed of accordingly.