ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 1. Petitioner questions the sustainability of the order contained in Memo No. 54 dated 12.1.2005 issued under the signature of the Finance Controller, Bihar State Electricity Board (for short “ the Board”) whereby, while sanctioning post retiral dues in favour of the petitioner, a sum of Rs. 49,420/- has been directed to be recovered from the amount payable to him upon superannuation on account of recovery of excess pay drawn by the petitioner without passing the Hindi Noting and Drafting Examination. 2. Petitioner retired from service of the Board as Assistant Store Keeper Barauni Thermal Power Station (B.T.P.S.) on 31.7.2001. It is the case of the petitioner that without any show cause notice issued in this regard, the respondents by an order dated 26.3.2002 directed for reduction of his scale of pay on account of petitioner having not passed the Hindi Noting and Drafting Examination. It is the case of the petitioner that the authorities of the Board allowed increment in the salary without there being any misrepresentation and fraud on his part. After his retirement, the respondents have arbitrarily held that a sum of Rs. 49,420/- was paid in excess to the petitioner by way of increment without passing the Hindi Noting and Drafting Examination. It is the case of the petitioner that he had cleared the aforesaid examination in the year 1993. It is also the petitioner’s case that the aforesaid requirement was neither made aware to the employees at large and the petitioner in particular till 1993 and the respondent Board had allowed such increment in the salary to all the employees including the petitioner. It has thus been prayed that the authorities of the Board be directed to refund the aforesaid amount. In order to substantiate his case, the petitioner has placed reliance on the following judgments: (1). 2007 (3) P.L.J.R. 398 (F.B.) (Ram Binod Singh versus Bihar State Electricity Board) (Paragraphs 22 and 26) (2) 2009 (2) P.L.J.R. 74 (SC) (Syed Abdul Qadir versus State of Bihar) (Paragraphs 25, 26 and 27) 3. A counter affidavit has been filed on behalf of the respondent Board. It is the stand of the respondent that the State Government framed rules in the year 1968 whereunder an employee of the Government was required to pass Hindi Noting and Drafting Examination enabling him/them to earn annual increment. A counter affidavit has been filed on behalf of the respondent Board. It is the stand of the respondent that the State Government framed rules in the year 1968 whereunder an employee of the Government was required to pass Hindi Noting and Drafting Examination enabling him/them to earn annual increment. The said rule of the Government was adopted by the Board vide resolution No. 537 dated 16.7.1979 and was made applicable to its employees except those who were over 50 years of age. Since the petitioner had not passed the Hindi Noting and Drafting Examination prior to 19.2.1993 as such he was not entitled to draw annual increment which was drawn up to 31.7.2001. While processing his retiral claim, it was found and detected that the petitioner had not passed the aforesaid Hindi Noting and Drafting Examination and as such he was not entitled to receive annual increment w.e.f. 16.7.1997 up-to the said date and accordingly, the said amount has been directed to be recovered from the post retiral dues payable to the petitioner. 4. Learned counsel for the petitioner has contended that aforesaid issue fell for consideration before a Full Bench of this Court in Ram Binod Singh (supra). In paragraph 22 of the report, the Full Bench noticed that the resolution of 1979 could not be shown to have been intimated to the concerned staff and increments had been given during 14-15 years of service which was not on account of any representation or misrepresentation of the employee who had passed the examinations in 1993. The Full Bench held in paragraph 26 as under: “26. The relevant provisions of the Indian Contract Act, particularly Section 72 cover cases of mistake of fact as well as law and provide for recovery. The principle of restitution in case of unjust enrichment is also an accepted principle for ensuring justice in appropriate case. Hence, in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. Hence, in law, the position appears to be clear that there is no legal bar in ordering for recovery from retired employees where they have received money benefits on account of mistake at the ministerial level in the matter of fixation pay, grant of increments or time bound promotion when the conditions precedent for such promotions were clearly non est. However, it has been correctly submitted on behalf of the petitioners that the theory of simple mistake or error to justify recovery will not hold good where the grant did not suffer from patent illegality or perversity so as to attract the Wednesbury Principle or the vice of malafide in law. For example, where two interpretations of a provision were possible and one was consciously approved and adopted by the competent authority meant to be applied generally to all concerned, any error in such decision of the competent authority if corrected at a later stage may be ordered to apply only prospectively. Moreso, if the decision has been followed for many years. In other words, if on reinterpretation or adjudication the earlier view permitting the grant of monetary benefits is found to be by a competent authority and bonafide but wrong. Mistaken or erroneous, then ordinarily no recovery should be made unless the excess payment already made is covered by the two exceptions pointed out in the case of Madan Mohan Prasad (supra). But if the grant was by way of undue favour, arbitrary, malafide, ultra vires and/or void ab initio, recovery of public money should be the normal course. In such cases of clear disobedience of policy or rules by ministerial action or clear dishonest decision causing undue loss to public money, action against the concerned authority may also be justified to prevent and discourage plunder of public money by sheer disregard of clear law. The constitutional schemes of rule of law and fairness in public action support recovery in such cases unless law of limitation or waiver etc. are successfully invoked to show that they prevent such a course in the facts of any particular case.” 5. Mr. The constitutional schemes of rule of law and fairness in public action support recovery in such cases unless law of limitation or waiver etc. are successfully invoked to show that they prevent such a course in the facts of any particular case.” 5. Mr. Ganguly learned counsel for the respondent, relying on an order passed by a learned Single Judge of this Court in C.W.J.C. No. 16151 of 2004 (Roop Narayan Singh versus State of Bihar and Ors) enclosed as Annexure-B to the counter affidavit, contends that this Court even after noticing the ratio laid down in Ram Binod Singh (supra) found that the said judgment would not be an obstacle in realizing or recovering the amount drawn in excess by the employee. Mr. Ganguly strenuously argued that an employee cannot be allowed to retain excess payment out of public money which was paid as a result of mistake and/or void action as the same would amount to unjust enrichment and therefore, this Court should permit recovery of those amounts from the employees which would be in consonance with the principle of restitution which has been held permissible by Courts in cases of unjust enrichment. Mr. Ganguly, thus, submitted that in the light of the order passed in Roop Narayan Singh (Annexure-B), the amount sought to be recovered would be justified. 6. There is no dispute that the petitioner was allowed to draw increment even without passing the Hindi Noting and Drafting Examination for close to 14 years. It is not the case of the respondents that any misrepresentation in this regard was made by the employee (the petitioner) and/or any fraud was played in order to get those increments sanctioned by the authorities of the Board and paid to him for all these years. The respondent Board has not shown to this Court that such sanction or grant of increment to the petitioner was conditional. The Full Bench of this Court in Ram Binod Singh (supra) noticed with approval the two exceptions carved out by a Division Bench of this Court in B.S.E.B. versus Madan Mohan Prasad 2001 (2) P.L.J.R. 58 . In a situation like this, the Hon’ble Supreme Court in Syed Abdul Qadir (supra) relying on diverse judgments of the Supreme Court held in paragraph 25 and 27 as under: “25. In a situation like this, the Hon’ble Supreme Court in Syed Abdul Qadir (supra) relying on diverse judgments of the Supreme Court held in paragraph 25 and 27 as under: “25. We now come to the question as to whether the amount that has been paid in excess to the appellants-teachers should be recovered or not. It is the submission of the learned counsel appearing on behalf of the appellants-teachers that even if it were to be held that the appellants were not entitled to the benefit of additional increment on promotion, the excess amount that has been paid to the appellants cannot and should not be recovered; it having been paid without any misrepresentation or fraud on their part. 27. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. See Sahib Ram vs. State of Haryana, 1995 Supp.(1) SCC 18, Shyam Babu Verma vs. Union of India, (1994)2 SCC 521 ; Union of India vs. M. Bhaskar, (1996) 4 SCC 416 ; V. Ganga Ram vs. Regional Jt. Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors., (2006) 11 SCC 709 ; Purshottam Lal Das & Ors. Vs. Director, [1997] 6 SCC 139; Col. B.J. Akkara [Retd.] vs. Government of India & Ors., (2006) 11 SCC 709 ; Purshottam Lal Das & Ors. Vs. State of Bihar, (2006) 11 SCC 492 ; Punjab National Bank & Ors vs. Manjeet Singh & Anr., (2006) 8 SCC 647 ; and Bihar State Electricity Board & Anr. Vs. Bijay Bahadur & Anr., (2000) 10 SCC 99 .” 7. From perusal of the materials on record, it appears that the following facts are not in dispute: (a) The petitioner was allowed to draw increments from 1979-80 to 20.12.1993 by the respondent Board i.e. for more than 13 years. (b) The petitioner superannuated from service w.e.f. 31.7.2001. (c) There is no material to suggest that any misrepresentation was made and/or fraud was committed on the part of the petitioner in getting those increments sanctioned and paid for all these years. (d) The materials on record are wholly inadequate to show that the adoption of the aforesaid resolution by the Board in the year 1979 was made aware to the employees including the petitioner. (e) It appears that several such employees were allowed to draw increments. (f) There is nothing on record that any prior notice in this regard was issued to and served on the petitioner. 8. This Court is Court of Equity. The relief against recovery is granted by Courts not because of any right in the employee but in equity, exercising judicial discretion to relieve the employees particularly those who have already superannuated from service from the hardships that will be caused if recovery is to be ordered. 9. In what noticed above, I am of the considered view that the respondents Board, in the particular facts of the case, would not be justified in recovering the amount said to have been drawn by the petitioner by way of increment. However, at the same time, it is observed that the respondent Board would be entitled in law to fix the pension and other retiral dues of the petitioner as per his actual entitlement according to rule. 10. For the reasons aforenoted, I am persuaded to interfere with the order contained in Memo No. 54 dated 12.1.2005 (Annexure-1) passed by respondent No. 3, which is accordingly quashed and set aside. 10. For the reasons aforenoted, I am persuaded to interfere with the order contained in Memo No. 54 dated 12.1.2005 (Annexure-1) passed by respondent No. 3, which is accordingly quashed and set aside. The petitioner shall be made available the due amount within four weeks from the date of receipt/production of a copy of this order. 11. There shall be no order as to costs.