ORAL ORDER Heard counsel for the parties. 2. The petitioner in this writ application has prayed for the following reliefs: “That this writ application is being filed for commanding the respondents, particularly respondent no.7, Principal, Inter Level B.B. Collegiate, Muzaffarpur to pay salary and other allowances to the petitioner as he has been paid till July, 2008. This writ application is also being filed for commanding the respondent no.7, Principal, B.B. Collegiate, Muzaffarpur not to act upon the illegal audit objection and further pay the deducted amount of Rs. 927/- per month from the month of August, 2008 and onwards. This writ application is also being filed for quashing the relevant part of the objection raised by the auditor that pay fixation of the petitioner in revised scale on account of time bound promotion has wrongly been made in violation of resolution No. 6022 dated 18.12.1989 issued by the Finance Department, Govt. of Bihar. This writ application is also being filed for restraining the respondents, particularly, Principal, Inter Level B.B. Collegiate, Muzaffarpur from giving effect to the aforesaid objection raised by the auditor and further from making any recovery/ deduction from the salary of the petitioner. This writ application is also being filed for holding that the impugned objection raised by the auditor and the amount recovered from the salary of the petitioner from the month of August, 2008 and onwards are illegal, arbitrary, malafide and without any lawful justification.” 3. Mr. Shyama Prasad Mukherjee, learned Senior counsel, assisted by Mr. Shanti Pratap, Advocate on record in this case, has submitted that if the petitioner had already been subjected to verification of his pay fixation by the Auditors of the office of the State Government in the year 1992 and also was made to refund Rs. 13,262/- as also is entered in his service book, he could not have been again held to be liable to refund a sum of Rs. 1,49,325/-. In this regard it has been submitted that the order, contained in Annexure 1, the subsequent audit objection of the office of the Accountant General pointing out excess amount drawn to the tune of Rs. 1,49,325/-. In this regard it has been submitted that the order, contained in Annexure 1, the subsequent audit objection of the office of the Accountant General pointing out excess amount drawn to the tune of Rs. 90,200/- is based on no calculation and no reasons and at least does not take into account the earlier deductions already made from the petitioner in the year 1994 pursuant to the audit objection of the year 1992 making the petitioner not only looser in the matter of grant of his pay but also refund of Rs. 13,262/-. 4. Learned counsel for the petitioner has also submitted that on account of events taking place during the pendency of this writ application an interlocutory application, I.A.No. 2380/2009 has been filed wherein a prayer has been made for restraining the respondents from making any deduction pursuant to the audit objection. 5. Learned counsel for the State, on the other hand, has submitted that the petitioner will be entitled to only such amount of salary and its revised fixation from time to time as was prescribed by the State Government. In this context he has submitted that the petitioner is a teacher and thus for him grant of senior scale would be governed by the provisions of Government resolution No. 6022 dated 18.12.1989 and when the Auditors of the office of the Accountant General had found the pay fixation of the petitioner done by the Principal of Collegiate School to be contrary to the said Government resolution, a decision was taken for recovery of excess amount drawn by the petitioner and in fact the petitioner also had tacitly accepted his drawing of excess amount by allowing such deduction to be made from his salary. Counsel for the State, therefore, has submitted that now when the petitioner has already retired from service in the year 2010 he should not be allowed to question the earlier decision taken by the authorities of the Department based on the audit objection. 6. Learned counsel for the Accountant General, on the other hand, has submitted that it is the constitutional duty of C.A.G. to audit the Government accounts and in course of such test audit when the case of the petitioner was examined it was found that the petitioner had been wrongly paid his salary contrary to the Government decision of pay fixation including the Government resolution No. 6022 dated 18.12.1989. He has accordingly defended the pay fixation of the petitioner as done by the Auditors of the office of Accountant General and has relied on Annexure A/8 enclosed with the counter affidavit sworn by the Deputy Accountant General of the office of the C.A.G. 7. In the considered opinion of this Court there can be no two views on the proposition that an employee of the State Government would be entitled to payment of salary as determined by the Government resolution or its fixation made in terms of the recommendation of the Pay Revision Committee as notified by the Government from time to time. Here in this case the petitioner was appointed as an Assistant Teacher on 28.5.1976 and thus, when his first time bound promotion became due in terms of the Government Resolution dated 30th December, 1981, as contained in Annexure 2, its grant to the petitioner cannot be faulted either on fact or in law, inasmuch as on 28.5.1986 the petitioner having completed ten years of service was entitled to get such time bound promotion. As a matter of fact the Government resolution dated 18.12.1989 on account of pay fixation of the teachers of the school in the State of Bihar having been brought on the same pay scale as prescribed by the Central Government, a conscious decision was taken only in December, 1989 that there would be no time bound promotion for such teachers and they would be entitled for two promotions known as senior teachers pay scale with duration of 12 years each. It was in this aspect that the Government being aware of the time bound promotion already given after 1.3.1986 and prior to 18.12.1989 had also fixed the mechanism for pay fixation as would be evident from paragraph 13 of the Government resolution reading as follows: “The State Government have decided that Revised pay scale indicated in Schedule II be extended to teachers in these schools and the provision under the Central Government regarding training, eligibility for appointment and promotion and other service conditions be made applicable to them as far as possible. Thus the efficiency bars in their pay scales shall also continue. The following principles have been laid down for fixation of pay in the Revised scale. Thus the efficiency bars in their pay scales shall also continue. The following principles have been laid down for fixation of pay in the Revised scale. These provisions shall be applicable to all teachers except those having matric (untrained) qualification: (i) All those teachers who were in the basic grade on 1st January 1986 shall have their Revised pay fixed in the basic grade indicated in Schedule II. (ii) All those teachers who were in receipt of promotion or time bound promotion into the Junior Selection grade and had completed 12 years of service in the basic grade prior to 1st January 1986 shall have their pay fixed in the Revised senior scale were indicated in Schedule II. Those teachers who were in receipt of promotion or time bound promotion into the junior selection grade prior to 1st January, 1986, but had not completed 12 years of service in the basic grade on that date shall also have their pay fixed in the Revised scale in the basic grade only on 1st January 1986. Benefit of promotion and fixation of pay in senior scale shall be given to them with effect from the date they complete 12 years of service. (iii) Those teachers who have received promotion into Junior Selection Grade or first time bound promotion after 1st January 1986 but before 1st March 1986 shall be given the benefit of promotion for the purpose of fixation of their pay in the Revised scale only with effect from the date they have received promotion, or date on which they complete 12 years of service whichever is later. (iv) Those teachers who have been promoted in Senior Selection Grade and have also completed 12 years of service or have received second time bound promotion on completion of 25 years prior to 1st January 1986 shall also have their pay fixed in the Revised senior scale. Promotion into the senior Selection Grade or second time bound promotion after 1st January 1986 shall be ignored for the purpose of fixation of pay in the Revised scale. (v) Benefit of selection scale in the Revised scale of pay shall be extended to teachers in accordance with the availability of posts and the procedure and conditions prescribed by the Central Government for their teachers which would be deemed to have been in force with effect from 1st January, 1986. (v) Benefit of selection scale in the Revised scale of pay shall be extended to teachers in accordance with the availability of posts and the procedure and conditions prescribed by the Central Government for their teachers which would be deemed to have been in force with effect from 1st January, 1986. The number of posts in the selection scale where admissible in Schedule II will be restricted to 20 percent of the number of posts in senior scale of the respective cadre. Regarding conversion of posts into selection scale on 1st January, 1986 the Department of Human Resources Development shall issue separate orders in consultation with Finance Department and promotion shall be given according to the conditions prescribed by the Central Government for their teachers. The number of posts in the selection scales shall be subject to review on 1st April of each year, the first such review being due on 1st April, 1987. (vi) The existing facility of time bound promotion and selection grade discussed in paragraphs 10-11 of F.D. Resolution No. 10770 dated 30th December, 1981 shall cease to be applicable from 1st March, 1980 onwards in the existing pay scales and shall not be applicable at all for the purpose of pay fixation in Revised scales with effect from 1st January, 1986. The suppertime selection grade now being introduced for other Government employees shall not be applicable to these teachers. Such promotions, however, if due before 1st March 1986 shall be given and payment in the existing scale made only upto 29th February, 1989 after which the promotion would be deemed to have been terminated. (vii) The existing procedure of fixation of pay on promotion will cease to be applicable to teachers in the Revised pay scales with effect from 1st January, 1986. In their case the pay fixation on promotion shall be governed by Rule 22(c) of Fundamental Rules and instructions issued by the Central Government for their teachers from time to time. The fixation of pay on promotion referred to in sub-paragraphs (ii), (iii), (iv) and (v) shall also be governed by those provisions.” 8. In their case the pay fixation on promotion shall be governed by Rule 22(c) of Fundamental Rules and instructions issued by the Central Government for their teachers from time to time. The fixation of pay on promotion referred to in sub-paragraphs (ii), (iii), (iv) and (v) shall also be governed by those provisions.” 8. From the reading of the aforementioned provisions it becomes absolutely clear that even though the petitioner was given time bound promotion but his pay fixation in terms of the Government resolution dated 18.12.1989 had to be made with effect from 1.1.1986 in the basic grade and thereafter it had to be replaced on completion of 12 year period by allowing him the benefit of senior scale of pay as prescribed in 1989 resolution. 9. As a matter of fact this exercise was done way back in the case of the petitioner in the year 1992 itself when the Auditor of the State Government had found that the petitioner had been wrongly given the fixation of higher pay scale with effect from 1.3.1986 in terms of the Government resolution dated 18.12.1989 without fixing his pay in the basic grade. This would be evident from the following portion of the audit objection dated 23.3.1992: ^^,sls f'k{kdksa ds lsokiqLrksa ,oa layXu osru fu/kkZj.k fooj.kh ns[kus ls Li"V gqvk fd laoxZ esa 10 o"kksZa dh lsok vof/k iw.kZ gksus dh frfFk dks vFkkZr ftl frfFk dks foRr foHkkx dh ladYi la0 18770 fnukad 30-12-81 ds vuqlkj izFke dkycn~/k izksUufr nh xbZ Fkh ewy dksfV ds osrueku esa izkIr osru dk 12 izfr'kr ykHk nsdj duh; izoj dksfV ds osrueku 940&1660 esa izksUufr nh x;h Fkh ,oa duh; izoj dksfV ds osrueku esa izksUufr dh lqfo/kk mijkUr izkIr osru dk mlh izksUufr frfFk ls ewy dksfV ds iqujhf{kr osrueku esa 1640&2900 esa izfrLFkkfir@fjIysl} fd;k x;k Fkk rFkk iqu% ek= nks o"kksZa ds ckn gh ¼vFkkZr~ laoxZ esa lsok izkjaHk dh frfFk ls 12 o"kksZa dh lsok iwjh djus ij½ 1640&2900 ds osrueku ls duh; izoj dksfV ds osrueku 2000 ls 3500 esa izksUufr ds QyLo:i dsUnz ljdkj ds ewy fu;e 22 ¼lh½ ds izko/kkuksa ds vuqlkj osru fu/kkZj.k dk ykHk fn;k x;k FkkA dk;kZy; }kjk bl <ax ls fd, osru fu/kkZj.k dh iw.kZ fooj.kh ifjf'k"V ¼p½ ij gSA bl izdkj duh; izoj dksfV ds osrueku esa ,d gh izksUufr ds fy, nks ckj osru fu/kkZj.k dk ykHk fn;k x;k FkkA izFkeokj izkjaHk dh frfFk ls 10 o"kksZa ds ckn ,oa }kjk mlds nks o"kksaZ ckn gh vFkkZr lsok izkjaHk dh frfFk ls 12 o"kksZa ckn nks ckj izksUufr dk ykHk fn;k tkuk Li"Vr% vfu;fer gSA vr% ,d ckn dk ykHk vns; gSA ,sls f'k{kdksa dks foRr foHkkxh; ladYi la0 6022 fnukad 18-12-89 dh dafMdk 13¼3½ ds vuqlkj dsUnz ljdkj ds f'k{kdksa dh rjg vius laoxZ esa lsok izkjaHk dh frfFk ds 12 o"kksZa ds ckn gh duh; izoj dksfV ds osrueku esa izksUufr dk ykHk nsus dk izko/kku fd;k x;k gSA rnuqlkj mDr ladYi dh dafMdk 13¼6½ es Li"V dj fn;k x;k gS fd foRr foHkkx ds ladYi la0 10770 fnukad 30-12-81 dh dafMdk 10 ,oa 11 esa micaf/kr 10 o"kksZa ij nh x;h izFke dkyc} izksUufr ds dkj.k dksbZ lqfo/kk 1-1-86 ls osru fu/kkZj.k ds fy, vuqekU; ugha gksxhA iqu% miof.kZr ladYi la0 6022 fnukad 18-12-89 dh dafMdk ¼3½ ds vuqlkj ,sls f'k{kdkas dks duh; izoj dksfV ds osrueku es izksUufr dk ykHk gj gkyr esa lsok izkjaHk ds 12 o"kksZa dh vof/k ds ckn gh ns; gksxkA mlds iwoZ ns; ugha gksxkA bl izdkj ladYi dh dafMdk 13¼6½ ,oa 13¼3½ ds vkyksd esa 10 o"kksZa ij izkIr izksUufr dh lqfo/kk 1-1-86 ls osru fu/kkZj.k ds fy, ugha ns tkuh pkfg;s Fkh tks nh x;h Fkh bl izdkj mDr ladYi dh dafMdk 13¼6½] 13¼3½ ,oa dafMdk 3 esa fofgr izko/kkuksa ds vkyksd esa ,sls f'k{kdksa ds lsok izkjaHk dh frfFk ls 12 o"kksZ dh vof/k iw.kZ gksus ds mijkUr ewy dksfV ds osrueku esa ns; osru ij 12 izfr'kr dk ykHk nsdj duh; izoj dksfV ds iqjkus osrueku ¼940&1660½ esa izksUufr nh tkuh pkfg;s Fkh ,oa mlh frfFk dks vFkkZr 12 o"kksZa dh lsok vof/k iw.kZ gksus ds ckn izksUufr frfFk dks gh duh; izoj dksfV ds osrueku ¼940&1660½ esa fu/kkZfjr osru dh duh; izoj dksfV ds iqujhf{kr osrueku 2000&3500 esa izfrLFkkfir dj nsuk pkfg, FkkA ,sls f'k{kdksa ds }kjk fodYi fn;s tkus ds dkj.k dsUnzh; izksUufr ij fu;e 22¼lh0½ ds rgr osru fu/kkZj.k dk ykHk ugha fn;k tkuk pkfg;s FkkA ,sls djus ls ,d gh izksUufr ds fy, nokjs osru fu/kkZj.k dk ykHk ugha feyrkA vads{k.k ds vuqlkj fu/kkZj.k ;ksX; osru dh fooj.kh ¼izfdz;k lfgr½ ifjf'k"V ¼N½ ij nh x;h gSA bl izdkj ladYi la0 6022 fnukad 18-2-89 dh dafMdk 13 ds vuqikyu ugha djus vFkkZr~ 10 o"kksZa ij izkIr izFke dkyc} izksUufr dh lqfo/kk 1-1-86 ls osru fu/kkZj.k esa vekU; ugha fd;s tkus ,oa nwljh vksj dsUnzh; fu;e 22¼lh0½ ds izko/kkuksa ds vuqlkj Hkh izksUufr dk ykHk nwckjk fn;s tkus ds dkj.k ns; osru ls :0 84145-50 dk vf/kd Hkqxrku fnukad 31-7-91 rd fd;k x;k Fkk tks olwyh ;ksX; gS bls olwy dj dks"kkxkj esa tek fd;k tk; bldh iw.kZ fooj.kh ifjf'k"V ¼t½ ij vafdr gSA** 10. As a matter of fact alongwith this detailed audit objection the schedule “Cha” referable to paragraph no.9 was also enclosed wherein the Auditors of the State Government had also fixed the salary of the teachers including the petitioner and in respect of the petitioner following entry was made: Jh vCnqy giht& 28&5&86 28&5&88 28&5&88 1150&138¾1288 28&5&88 1300&596&70&455&00 ;k 1300¾00 2351 vkSj 70 ;k 1&3&87 2375&00 2525&00 2375&00 28&5&88 2450&00 2600&00 28&5&90 2525&00 2675&00 28&5&91 2600&00 2950&00 11. From the reading of the aforementioned table being part of the audit report it would be clear that the Auditors had fixed the pay of the petitioner as on 1.1.1986 by holding him to be entitled to get Rs. 1300/-. Thereafter they had fixed the pay of the petitioner as on 28.5.1988 i.e. on completion of 12 years to be Rs. 2375/- and on that basis they had also tabulated the petitioner to be entitled for his salary fixation of basic pay as on 1.3.1989, 28.5.1989 (his date of increment), 28.5.1990 and 28.5.1991 to be Rs. 2375, 2450, 2525 and 2600. Now having done so if they had found that the petitioner had already been drawn extra amount on account of wrong pay fixation of Rs. 2525, 2600, 2675 and 2950 and that is how the petitioner was made to pay a sum of Rs. 13,262/- being excess amount as is duly accepted and admitted by the parties. 12. The question, therefore, would be was audit objection and pay fixation by the Auditors of the State Government taken into account while doing another verification this time by the auditors of office of Accountant General Bihar vide Annexure 1 in the year 2008. 13. From the counter affidavit of the respondents and its chart, Annexure A/8, it becomes clear that they have either not taken into account the State Government Auditor’s objection of the year 1992 and the recovery already made from the petitioner leading to pay fixation, as indicated above, or have proceeded afresh to make application of the Government decisions for determining the pay scale of the petitioner. 14. It is here that the grievance of the petitioner as with regard to non-compliance of the principles of natural justice would come to the fore. 14. It is here that the grievance of the petitioner as with regard to non-compliance of the principles of natural justice would come to the fore. A person drawing higher salary when he is being subjected to a decision of reduction of his pay may be on account of wrong fixation flowing out of the Government decision he will be entitled to a show cause notice to explain his view point. Here in this case the petitioner had already accepted the deductions from his salary and the reduction of his pay in the year 1994 pursuant to the audit objection of the State Government of the year 1992. Therefore, if the Auditors of the office of Accountant General had again put the case of the petitioner under test audit and had come to a conclusion that the petitioner had been paid in excess of Rs, more than one lac the petitioner was at least entitled to a show cause notice. The reference made by the learned counsel for the State to the two show cause notices, as contained in Annexures “F” and “G” to say the least would not satisfy the test of a show cause notice, inasmuch as in them the petitioner was only asked to explain his conduct as with regard to expressing his dissent and protest as with regard to the pay fixation and deductions already started by the Principal of the College. Such conduct of the petitioner on that account cannot be appreciated by this Court, inasmuch as the Principal of the Institution was bound by the audit objection of the office of Accountant General and its implementation, but none-the-less those two show cause notices, contained in Annexures “F” and “G” having been nowhere confined to the issue in question as with regard to reduction of pay or fixation of pay as per the audit objection cannot be held to be the show cause notice. Thus, the order of the authority or action thereunder for reduction of pay and also recovery against the petitioner is in clear violation of the principles of natural justice. 15. Thus, the order of the authority or action thereunder for reduction of pay and also recovery against the petitioner is in clear violation of the principles of natural justice. 15. This Court, however, would not leave at rest only on a technical ground, inasmuch as it has found that the Accountant General itself has not gone into the question of the earlier 1992 audit objection and pay fixation made by the Auditors of the State Government as is clear from the reading of admitted document contained in Annexure 6. Thus, once the petitioner was subjected to pay fixation as per norms decided by the Auditors of the State Government, he would not be liable for any recovery after that date if such payment of salary to him after the year 1994 has been made strictly as per the pay fixation made by the Auditors of the State Government as contained in Annexure 6 extracted above. In other words, if the petitioner was paid his salary in the pay scale as per pay fixation whereby and whereunder on 28.5.1991 he was held to be entitled to draw only Rs. 2600/- in place of Rs. 2950/- earlier being paid to him, the petitioner cannot be subjected to any further recovery on the ground of excess payment, inasmuch as if that calculation itself made by the Auditors of the State Government was/is wrong, the petitioner at least cannot be said to have misrepresented or played fraud which are only two basis for making recovery of an amount from a Government servant. Reference in this connection may be usefully made to the case of Syed Abdul Qadir & ors. vs. State of Bihar & ors., reported in (2009)3 SCC 475 , wherein the Apex Court in the case of teachers of Bihar itself had found that the authorities themselves were not aware of the provisions of Rule 22(c) of Fundamental Rules and as such the teachers paid excess salary could not be subjected to recovery from the salary on account of wrong pay fixation by the authorities. 16. That being so, this Court would not approve the action taken against the petitioner for any recovery to be made against him and if any amount has been recovered from the petitioner for the period prior to 2008 (barring Rs. 16. That being so, this Court would not approve the action taken against the petitioner for any recovery to be made against him and if any amount has been recovered from the petitioner for the period prior to 2008 (barring Rs. 13,262/-) already recovered from the petitioner in the year 1996-97 pursuant to the earlier audit objection of the auditors of the State Government that must be refunded back to him. The petitioner, however, will be entitled from the year 2008 the salary which was fixed by the Accountant General and his retirement benefit also will be paid as per pay fixation by the Accountant General in the impugned order. Since the petitioner has already retired, his last pay should be fixed on the basis of pay fixation already made by the Accountant General in the order contained in Annexure A/8 showing him to be entitled basic pay of Rs. 10,500/- as on 1.4.2007 and further amount of pay fixation till the date of his retirement should be made on that basis. 17. Before doing this exercise the Accountant General, however, must again verify as to whether the calculation made in Annexure A/8 to the counter affidavit filed by respondent no.8, the Accountant General is itself correct or would need a revision in view of the earlier audit objection of the auditors of the State Government made in the year 1991 fixing pay of the petitioner as on 28.5.1991 to be Rs. 2600/- only. This would be essential because in the subsequent calculation made by the auditors of the office of Accountant General in the chart contained in Annexure A/8 the petitioner has been shown to be entitled to only a sum of Rs. 2120/- as on 28.5.1988 whereas in the pay fixation made by the Auditors of the Finance Department of the Government of Bihar the petitioner’s pay has been fixed at Rs. 2375/-. It may be that while doing so the Auditors of the State Govt. of Bihar has failed to take into account the provisions of the Government resolution dated 18.12.1989 and had allowed him two additional increments which was not payable as per Government resolution but then if such fixation was made by the Auditors of the State Govt. 2375/-. It may be that while doing so the Auditors of the State Govt. of Bihar has failed to take into account the provisions of the Government resolution dated 18.12.1989 and had allowed him two additional increments which was not payable as per Government resolution but then if such fixation was made by the Auditors of the State Govt. of Bihar the petitioner having made no misrepresentation cannot be subjected to any recovery and therefore, the best course would be whatever additional amount has been recovered from the petitioner after 1997 i.e. a sum of Rs. 13,262/- in view of the earlier objection of the Auditors of the State of Bihar, he would not be liable for any further recovery at least for the period till August, 2008. 18. Counsel for the petitioner has submitted that the petitioner in fact has been paid his retirement benefit on the basis of last pay fixed by the Accountant General and his such payment has been made only after deducting a sum of Rs. 1,49,325/-. Since this amount also includes the period of August, 2008 onwards, the controlling authority, namely, the District Education Officer will pass a fresh order as with regard to the petitioner’s liability of making refund of the excess amount, as indicated above, which shall be confined only for the period August, 2008 to the date of his retirement. The amount already recovered from the petitioner beyond the aforementioned amount must be refunded back to him within a period of six months from the date of receipt/ production of a copy of this order. 19. The writ application is, accordingly, allowed to the extent indicated above.