Judgment 1. The petitioner retired from service as Dy. Supdt. of Police, Government Railway Police on 31.3.2002. In this petition under Art. 226 of the Constitution he seeks to challenge the direction for recovery of certain amount from his retiral dues that was paid to him as excess salary as the result of wrong fixation of his pay on the post of Sub Inspector. The impugned direction is contained in a letter from the Supdt. of Police Railway, Muzaffarpur under his memo no. 339, dated 8.4.2002 addressed to the Assistant (Inspection) to the Director General of Police, Bihar, Patna. According to the petitioner, on the basis of the impugned direction, the authorities propose to deduct Rs. 74, 366/- from his leave encashment or other retiral dues. 2. On behalf of respondent no. 5 (the Supdt. of Police Railway, Muzaffarpur) a counter affidavit and a supplementary counter affidavit are filed in which the ground on which the recovery is directed is stated as follows: "......It is made clear that the petitioner was appointed as S.l. of Police on 19.1.1967. The pay was wrongly fixed while the petitioner was holding the post of S.l. Afterwards he was promoted to the rank of Inspector and Dy. S.P. The petitioner got excess payment continuously right from the rank of Sub Inspector till his retirement from service as D.S.P." (See para 3 of supplementary counter affidavit). 3 The concluding statement that the petitioner received excess payment till his retirement from service as Dy. Supdt. of Police is quite wrong as would be evident from the following statements made in para 4 of the supplementary counter affidavit: "It is worth mentioning that a D.O. No. 861/98 was issued on 30.8.98 by this office in this regard. This D.O. clearly mentions that the petitioner had been getting excess payment on the basis of wrong pay fixation since the time of holding the post of Sub Inspector." 4. From the above statement, it is clear that pay fixation of the petitioner was corrected by D.O., dated 30.8.98 and there is, therefore, no question of his getting excess payment after that date. 5. A copy of D.O. no. From the above statement, it is clear that pay fixation of the petitioner was corrected by D.O., dated 30.8.98 and there is, therefore, no question of his getting excess payment after that date. 5. A copy of D.O. no. 861/98, dated 30.9.98 is at annexure A to the supplementary counter affidavit from which it appears that though the petitioners pay fixation was corrected from a retrospective date, there was no indication, much less any direction or instruction, for any recovery from his salary and/ or retiral dues. 6. Four years later when the petitioner retired from service, then only the direction for recovery was made in the letter, dated 18.4.02 (Annexure 2). 7. Mr. Jamilur Rahman, Govt. Pleader No. VII appearing for the State explained that in 1998 though the pay of the petitioner was correctly fixed from a retrospective date, no order of recovery was made because it was thought that deductions from his salary when less than four years of his service was remaining would hurt him badly. And, therefore, the order of recovery was made only on his superannuation from his retiral dues. l am not convinced by the explanation. Even if it was felt that no recovery should be made from the petitioners salary for the remaining years of his service, atleast it could be indicated in the order that the excess payment would be recoverable from his retiral dues so that the petitioner, if so advised, might have sought his reliefs at that time. The D.O., dated 30.8.98 being completely silent on the question of recovery, the petitioner was almost led to believe that though his pay was fixed in a lower grade, atleast no recovery was going to be made from him. 8. Mr. Rahman strongly defended the proposed recovery of excess salary paid to the petitioner from his retiral dues and in support of his submissions relied upon a bench decision of this court in Bihar State Electricity Board vs. Umesh Prasad, 2003 (3) PLJR 437 . The facts of that decision are somewhat different from the present case. In the reported decision, one Umesh Prasad and others were posted at the material time as Accounts Assistants in the Bihar State Electricity Board. The monthly pay of another Accounts Assistant, namely, Ram Ashrey Sharma, who was junior to them, was fixed at a higher grade. The facts of that decision are somewhat different from the present case. In the reported decision, one Umesh Prasad and others were posted at the material time as Accounts Assistants in the Bihar State Electricity Board. The monthly pay of another Accounts Assistant, namely, Ram Ashrey Sharma, who was junior to them, was fixed at a higher grade. Hence, Umesh Prasad made a representation claiming pay protection. On his representation the Board considered his grievance and issued more than one office orders by which the monthly pay of a number of Accounts Assistants (including Umesh Prasad) was up-graded and brought at par with the monthly salary of Ram Ashrey Sharma, giving them the benefit of pay protection. It is significant to note here that in the office orders by which the up-gradation of pay was made, it was clearly stipulated that in future, if any, irregularity was detected in the seniority, pay fixation or otherwise, the up-gradation order would be recalled and the excess payment made to the concerned employees on that basis would be recovered. (See the decision, dated 4.9.2003 in CWJC No. 2404 of 2002: Md. Umar Daraz vs. Bihar State Electricity Board in which this court examined another case of deduction from retiral dues in the Board arising from the same transaction). 9. It was later found that the pay of Ram Ashrey Sharma was in fact wrongly fixed. His pay was consequently down graded and along with him the pay of all others was down graded with a direction for recovery of the excess amounts. From the reported decision in the case of Umesh Prasad it further appears that he "also gave an undertaking before the Board to make recovery of excess withdrawal of pay." 10. From the reported decision it appears that these circumstances heavily weighed with the court. In the decision it is repeatedly observed that up-gradation of pay was made on the basis of a complaint made by the petitioner-respondent in that case, (See paras 3, 5, 8 and 9 of the decision). 11. The facts here are entirely different. There was no representation or request by the petitioner. Admittedly the wrong fixation of pay was made due to some mistake in the office. There was no up-gradation of pay on the basis of any order with the stipulation of recovery if later found irregular. 11. The facts here are entirely different. There was no representation or request by the petitioner. Admittedly the wrong fixation of pay was made due to some mistake in the office. There was no up-gradation of pay on the basis of any order with the stipulation of recovery if later found irregular. In 1998 when the mistake was corrected, with retrospective effect, there was no direction for recovery, much less any undertaking by the petitioner submitting to recovery. 12. In these facts and circumstances Mr. Anurag Shukla submitted that the order of recovery was wholly unreasonable, unjustified, unfair and untenable. In support of his submissions, he relied upon two Supreme Court decisions one in Saheb Ram vs. State of Haryana, 1995 Supp. (1) SCC 18 and the other in Bihar State Electricity Board and another vs. Vijay Bahadur and another, (2000) 10 S.C.C. 99 . Mr. Shukla also relied upon a bench decision of this court in the State of Bihar & another vs. Shri Ganesh Ram & Another, 2003(3) PLJR 51. In the case of Ganesh Ram, the same division bench that had rendered the decision in Electricity Board case cited by Mr. G.P. VII relied upon the Supreme Court decision in Vijay Bahadur to hold that since the payments were made without any representation or misrepresentation, no liberty could be given to the employer to deduct or recover the excess amount paid by way of increments at an earlier point of time. 13. On hearing counsel for the parties and on going through the writ petition and the counter affidavits, I find that the objection of the petitioner against the proposed deduction from his retiral dues is well founded and the decisions relied upon on his behalf are much closer to the facts of the case. The impugned direction as contained in Annexure 2 is accordingly quashed and the respondent authorities are directed to make final settlement and payment of retiral dues of the petitioner without making any recovery as per the impugned direction. 14. In the result, this writ petition is allowed, but, with no order as to costs.