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2013 DIGILAW 131 (PAT)

Ram Kumar Singh v. State of Bihar

2013-01-29

MIHIR KUMAR JHA

body2013
ORDER Having heard counsel for the parties in respect of the following relief:– "This writ application is being filed for setting aside the Office Order No.81 dated 26.09.2012 as contained Annexure-9 in this writ petition, whereby and whereunder respondent no. 5 has maintained as it is, his earlier Office Order no. 40 dated 30.03.2012 as contained Annexure-6 in this writ petition, which was earlier set aside by this Hon'ble High Court as contained Annexure-8 in this writ petition. This writ application is also being filed for setting aside the office order no. 40 dated 30.03.2012 communicated through memo no. 691 dated 30.03.2012 as contained annexure-6 of this writ petition, whereby and whereunder, the respondent no. 5 stayed the annual increment and fixed reduced pay scale including Grade pay of Rs. 16890/- payable with effect from 01.07.2006 and direction has been given to recover the excess amount drawn from the provisional gratuity." 2. While this Court will have no difficulty in setting aside that part of the order in which recovery has been sought to be made by the petitioner on account of excess payment made to him due to grant of increment, inasmuch as, such increments were granted to the petitioner under conscious decision and consequential order passed by the competent authority. There being no fraud or misrepresentation on the part of the petitioner in earning such increments, he cannot be deprived of the financial benefits under these increments. True it is that he had not passed the Hindi Noting and Drafting Examination and therefore, could not have been given such increment but once the competent authority had himself chosen to grant the benefit of such increments, the same cannot be taken away in absence of any fraud or misrepresentation on the part of petitioner as was held by Apex Court in the case of Syed Abdul Qadir and others Vs. State of Bihar and others, reported in 2009(3) SCC 475 and also followed by this Court in the cases of Surendra Kumar Singh Vs. The State of Bihar reported in 2011(3) BBCJ 432 , Kishore Prasad Vs. State of Bihar and others, reported in 2012(2) PLJR 12 and Aditya Prasad Singh Vs. State of Bihar and others reported in 2012(4) PLJR 43 . 3. The State of Bihar reported in 2011(3) BBCJ 432 , Kishore Prasad Vs. State of Bihar and others, reported in 2012(2) PLJR 12 and Aditya Prasad Singh Vs. State of Bihar and others reported in 2012(4) PLJR 43 . 3. Rest of the submission of the learned counsel for the petitioner however has to be only noted for its being rejected, inasmuch as, the Respondents cannot be made to suffer for ever on the basis of those illegal payments made to the petitioner. Thus for the purposes of calculating his last salary for payment of his post retirement benefit he would be entitled for the fixation made under the impugned order after taking away the benefit of increments. Thus he would entitled for getting his retirement benefits on the basis of last emoluments legally payable to him. That is how this Court has always dealt the issue in hand. The impugned order contained in Annexure-6 and 9 would accordingly stand modified to the aforementioned extent. 4. With the aforementioned observation and direction, this application is disposed of.