Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15579 of 2012 ====================================================== 1. Ram Naresh Singh Son Of Late Biseshwar Singh Resident Of Village- Parsurampur, P.S.- Barun, District- Aurangabad .... .... Petitioner/s Versus 1. The State Of Bihar, Through The Principal Secretary, Road Construction Department, Bihar, Patna 2. Chief Engineer, Road Construction Department, Bihar, Patna 3. Superintending Engineer, Road Construction Department, Bihar, Patna 4. Superintending Engineer, Road Construction, Bhojpur Circle, Ara 5. Executive Engineer, Road Construction Division, Dehri-On-Sone, Rohtas At Sasaram 6. Accountant General, Bihar At Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar-II For the Respondent/s : Mr. Abhay Shankar Jha SC-14 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 28-02-2013 Heard learned counsel for the parties as with regard to the following relief prayed in this writ application:- "(i) That for quashing order dated 17.01.2010 (as contained in Annexure-1) issued by Respondent no. 4 Superintending Engineer, Road Construction Circle Bhojpur Circle, Ara vide Memo No. 52, by which order first time bound promotion given to the petitioner was cancelled due to he did not pass Revenue/Departmental Accounts Examination and further ordered that due to grant of such time bound promotion, excess amount received by him be realized from his pensionary dues. (ii) That also for quashing subsequent order dated Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 2 10.03.2010 issued by Respondent No. 5 as contained in Annexure-2 vide his memo no. 898 by which order a sum of Rs. 97,126/- was recovered from the petitioner's leave encashment bill at the time of his retirement as excess payment made to him due to grant of first time promotion to him w.e.f. 06.12.1983 vide letter no. 578 dated 15.03.1986. (iii) That the petitioner further prays that the amount very illegally recovered by the office of Respondent No. 5 be released in the favour forthwith. (iv) That the petitioner humbly prays that his pension be refixed on the basis of last salary drawn and recalculate and pay the arrear arising there from after taking into account that first time bound promotion which was granted to the petitioner w.e.f. 06.12.1983 was very legal and justified." The grievance of the petitioner thus in this writ application is with regard to stripping off benefit of time bound promotion to the petitioner. As a matter of fact, the petitioner after more than two years of his retirement on 31.05.2010 has filed this writ application on 27.08.2012 assailing the correctness of an order dated 14.01.2010 which was passed while he was continuing in service. Apparently, the delay in this case of more than two Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 3 years will be of vital consequences because now all the dust has settled by way of final adjustment and recovery of excess amount of Rs. 97,126/- while paying his entire retirement benefits. Thus any order passed today by way of interfering in the impugned order will not only lead to unsettle the events which have already taken place but would lead to a fresh exercise of computing and paying retirement benefit. The impugned order dated 14.01.2010, relevant portion whereof reads as follows :- ^^ foRr foHkkx ds ifji= la[;k 4178 fo0 fnukad 12-08-92 esa ;g izko/kku gsS fd fnukad 01-09-1983 ds mijkUr ftu fyfidksa dks fcuk jktLo Ik’kZn@ foHkkxh; ys[kk ijh{kk mrh.kZ fd;s izksUufr ns nh xbZ gS] mudks izR;kofrZr dj fn;k tk; A mDr vk”k; dk funs”k eq[; vfHk;ark] nf{k.k fcgkj ¼;k0‰ miHkkx] iFk fuekZ.k foHkkx] iVuk ds i=kad 3158 …vuq0‰ fnukad 09-12-2006 ds }kjk Jh dfiynso esgrk] iz/kku fyfid ,oa Jh pfUnzdk jke] i=kpkj fyfid ds ekeys esa Hkh fn;k x;k gS A fnukad 01-09-83 ds mijkUr ftu dfeZ;ksa dks fcuk jktLo Ik’kZn@ foHkkxh; ys[kk ijh{kk mRrh.kZ fd, izoj dksfV@ dkyc) izksUufr nh xbZ gS] mudk iqujhf{kr osrueku es a fnukad 01-01-96 ls dh xbZ osru fu/kkZj.k dk lR;kiu ftyk ys[kk inkf/kdkjh ¼osru fu/kkZj.k “kk[kk½ Hkkstiqj] vkjk }kjk ugha fd;k tk jgk gS] lkFk gh dkyc) izksUufr dk lR;kiu vk;qDr] iVuk izeaMy] iVuk ds }kjk Hkh ugha fd;k tk jgk gS A vr,o dk;Zikyd vfHk;arkvksa ds vuq”kalk ij bl dk;kZy; ds fofHkUu vkns”kksa ds }kjk fuEuor~ deZpkfj;ks a dks fnukad 01-09-1983 ds mijkUr izoj dksfV@ dkyc) izksUufr fcuk jktLo Ik’kZn@ foHkkxh; ys[kk ijh{kk mrh.kZ fd, nh xbZ gS] dks ,rn~ }kjk izoj dksfV@ dkyc) izksUufr vkns”k dks jn~n fd;k tkrk gS rFkk vf/kd Hkqxrku dh jkf”k dh olwyh lqfo/kkuqlkj fdLrksa es a muds osru@ isa”ku ls dh tk;sxh A
Legal Reasoning
Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 4 dz0 1- deZpkjh dk uke@ inuke Jh dfiy nso esgrk iz/kku fyfid izksUufr dh frfFk 01-10-86 izksUufr dk in izksUufr inLFkkiu d0 iz0 dksfV “kkgkckn iFk izeaMy] vkjk 01-02-88 iz0 iz0 dks0 dk izlax 978 12-05-87 2104 06-11-97 --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- 578 15-03-86 --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- Jh jke ujs”k flag Ysk[kk fyfid --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- --------------------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- 06-12-83 ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ izFke dkyc) izksUufr ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ ------------------------ g0@& vLi"V v/kh{k.k vfHk;ark Hkkstiqj iFk vapy] vkjkA ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- iFk izeaMy] fMgjh vkSu lksu A ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- ------------------------------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- -------------- 2- 3- 4- 5- 6- 7- 8- 9- 10- 11- 12- 13- 14- 15- 16- 17- 18- 19- 20- 21- 22- 23- 24- 25- 26 From the aforementioned order, it would be clear that as many as 26 Clerks working within the control of the Superintending Engineer, Bhojpur Road Circle were stripped off the benefit of time bound promotion which at one point of time was earlier given to them. The order itself gives the reason for such cancellation, namely, that none of those 26 persons including the petitioner had passed the required departmental examination. Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 5
Legal Reasoning
Learned counsel for the petitioner does not dispute these facts but he would submit that once the petitioner was already granted first time bound promotion on 15.03.1986 with effect from 6.12.1983, the same ought to have been not cancelled especially when there are two judgments of this Court to support the case of the petitioner, namely, in the case of Dinesh Narayan Mishra Vs. The State of Bihar reported in 2006(2) PLJR, 169 as also in the case of Bishwanath Prasad Vs. State of Bihar and others reported in 2011(2) PLJR, 136. Learned counsel for the State, on the other hand, has submitted that right from the inception when the scheme of time bound promotion came into effect in terms of the Finance Department notification dated 30.12.1991 it was made clear that facility of time bound promotion or selection grade shall be given to such person who are otherwise qualified for promotion inasmuch as he has referred to the provisions of the Bihar Board’s Miscellaneous Rules, 1958 (hereinafter referred to as the Rules). Rule 157 of the Rule specially lays down passing of Departmental Accounts Examination either for grant of promotion or even for crossing the efficiency bar. According to him, as these aspects were not considered by the learned Single Judge in the case of Bishwanath Psrasad (Supra) , the same cannot be treated to be a Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 6 binding precedent in absence of the relevant statute being not considered by this Court. As with regard to the case of Dinesh Narayan Mishra,(Supra) he has submitted that the facts are clearly distinguishable and the law laid down in this case, therefore, will not be applicable to the case of the petitioner. In the considered opinion of this Court, the concept of time bound promotion came by way of removal of anti-stagnation measure inasmuch as the Government had found that the persons continuing on the same post and in the same pay scale in absence of promotional avenue, were stagnating and that is how while accepting the recommendation made in the Fourth Pay Revision Committee report the State government came with two schemes for its employees w.e.f. 1.4.1981, namely the posts of Selection grade, junior and senior and the time bound promotion by way of removal of anti stagnation measures. Paragraph 10 and 11 of the resolution of the Finance Department dated 30.12.1981 being relevant is quoted here-in-below :- “10. The general recommendations of the Fourth Pay Revision Committee in respect of Selection Grade are as follows:- (i) Selection Grade should be provided in all services, cadres and posts. (ii)There should be normally two levels of Selection Grade for Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 7 all cadres and posts to be known as the Junior Selection Grade and the Senior Selection Grade. For the State services, the Committee have recommended continuance of two Selection Grade to be known as the Junior selection Grade and the Senior Selection Grade, and a Supertime scale, existing at present. (iii) The Junior Selection Grade should consist of 20 percent of the total cadre and the Senior Selection Grade, 10% of the total cadre. The actual number should be determined for particular cadres taking into account the normal promotion prospects already existing for the cadre so that the first and second levels of promotion inclusive of the Selection Grade remains at least 20 percent and 10 percent respectively. In case of the State Services, however, the percentage of junior and senior selection grade should be 20 percent and 12.5 percent Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 8 respectively, and for the suppertime scale, 2.5 percent. (iv) Promotions to the Selection Grade should, of course, be subject to the condition that the employee is otherwise fit for the same. The above recommendations have been accepted by the Government subject to the condition that the qualifying service for promotion to any Junior Selection Grade shall be five years unless different criteria are already in existence for any specific selection grade. The concerned Administrative Department will have to issue specific orders in consultation with the Department of Finance regarding the selection grade scales and percentages for each service/cadre. The Selection Grade posts will not be in addition to the existing sanctioned strength in the cadre but will be created by conversion of the existing sanctioned posts in the cadre. The number of Selection Grade posts will be worked out on the basis of the number of posts sanctioned in the cadre as on 1st April, 1981, whether on permanent or on temporary basis. The Selection Grade posts to be sanctioned by conversion of the existing permanent/temporary posts in Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 9 the cadre will be either on permanent or on temporary basis according to as the posts in respect of which Selection Grade posts are provided are permanent or temporary. The actual number of Selection Grade posts available in a cadre will be revised annually on the basis of the sanctioned strength of the cadre as on 1st April every year, the first such review being due on 1st April 1982. Until such time the Administrative Departments are able to create different levels of Selection Grade posts in accordance with the above decision, Government have decided that the existing Selection Grade will continue. Where the revised scale for any existing Selection Grade has not been indicated in Schedule II, the revised scale for that existing selection in grade will be the revised scale next above the corresponding basic revised scale. Where, however, two selection grades exist at present, and the revised scales for the existing Junior/Senior selection grades have not been indicated in Schedule II, the revised scale for the existing Junior Selection Grade will be the revised scale next above the corresponding basic revised scale while the revised scale for the existing Senior Selection Grade will be the revised scale next above the revised scale for the Junior Selection Grade. Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 10 11. With regard to time-bound promotion, the Fourth Pay Revision Committee have made the following recommendations:- (i) Personnel management should envisage providing at least two promotions to each and every employee in Government service, the first by the end of ten years of service and the second by the end of 25 years of service. (ii) If an employee who is otherwise fit for promotion and has not been able to get a single promotion by 10 years of service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the junior selection grade at the end of the tenth year. (iii) If an employee, although otherwise found fit for a second promotion, has not been able to secure a second promotion by the 25th year of his service notwithstanding the fact that a specified Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 11 percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the senior Selection grade at the end of the 25th year. (iv) The aforesaid facilities should be extended to all employees whether they belong to any formally constituted service or cadre, or not and including employees holding isolated posts. In their case, the pay scale immediately higher than the pay scale prescribed for the basic post should be considered as the pay scale for the junior selection grade, and the pay scale immediately higher to that of the aforesaid junior selection grade should be deemed to be the pay scale for the senior selection grade. (v) The aforesaid scheme of time bound promotion will not be applicable to services, cadres and posts of which the maximum of the pay Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 12 scale of the basic grade exceeds Rs. 2,000. (vi) The other conditions, the rules and procedures meant for usual promotion should be followed in case of the aforesaid time bound system also. (vii) Since the aforesaid scheme is meant as an anti- stagnation measure, it should be applicable in case of only such employees who have not been able to get the first or the second promotion, as the case may be. In other words, the benefit of the time-bound system should be extended to those who are stagnating in the same pay scale to which they were appointed or its corresponding revised pay scale. The benefit should not be made applicable to such employee who, after once joining Government service have, for any reason been elevated to a higher pay scale, by promotion, merger or even upgradation. This should require issue of specific orders in case of every employee which should Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 13 obviously be done only after a careful examination of his service record. (viii) The aforesaid scheme is obviously not intended to deny any employee earlier promotion that comes in his favour in the usual course. The above recommendations have been accepted by Government subject to the condition that the benefit of time-bound promotion over and above the selection grade quota of posts as envisaged in paragraph 10, will be allowed to eligible employees only after first exhausting the possibility of accommodating such employees against the vacancies available in the selection grade.” (underlining for emphasis) From a conjoint reading of paragraphs 10 and 11 of the resolution of the Finance Department dated 30.12.1991 it would be clear that the Government had intended to create 20% of the post as Junior Selection Grade post and 10% as Senior Selection Grade and further 2 ½ % by way of super selection grade post in each cadre but they were to be extended to persons who were otherwise fit for being given promotion as would be evident from the underlined portion. Similarly, for those persons who could not be Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 14 accommodated on the post of Junior Selection Grade or Senior Selection Grade or in the Super time pay scale the State Government had come with the scheme of time bound promotion envisaging first time bound promotion on completion of 10 years of service and the second time bound promotion on completion of 25 years of service. This again was subject to person being otherwise eligible and fit for promotion as a clear from the underlined portion wherein it has also been clearly in paragraph no. 11(vi) that for giving time bound promotion to an employee who is otherwise fit for promotion, the other conditions, the rules and procedure meant for usual promotion has to be followed. It is also not in doubt that a condition for usual promotion of a clerk of Muffassil establishment has been laid down in Rule 157(J) of Bihar Board Miscellaneous Rules which for sake for clarity is also quoted in extenso hereinbelow:- . of muffasil Departments “157. Rules for the Examination in Accounts. – The following rules have been prescribed by Government for Examination at which all ministerial officers the administrative control of Government will be eligible to appear and those who secure therein 60 per cent marks or above will be declared to have passed the final examination while those who secure marks 40 per cent and above but below 60 per cent will be declared to have passed preliminary examination. under Note -- Permanent assistants and permanent Class I Stenographers in all Departments of Secretariat and all offices of the Heads of Department as listed in Appendix 3 to the Bihar Service Code, with the approval of the respective heads of these offices, may also sit for the examination in accounts, provided Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 15 that they will not be allowed more than two chances to pass the Examination. 2. Every candidate for examination shall at least six weeks before the date fixed for examination give through his immediate superior, notice to the District Officer, who will be incharge of the Examination, of his intention to appear at the ensuing examination by application in writing in his own hand, containing the following particulars :- (i) Name (ii) The Department of Government to which he belongs. (iii) The time-scale of pay with present pay. (iv) A general description of the work in which he has gained experience. The District Officer will then prepare a consolidated statement, including the candidates of the Collectorate and Sub-divisional Offices and other offices situated in the District and send a copy of the same to the Board one month before the date of the examination. 3. There will be two papers of three hours each. The arrangement for examination will be as under :- [A] Questions will be set for the first paper by the Secretary, Board of Revenue, from (a) Indian Introduction Government Audit and Accounts, Chapters 2(a), 6,7,8,10, 12 and 16. the to (b) Accounts Code Vo. I- Chapter 6 only. (c) Bihar Treasury Code Vols. I & II (d) Board’s Miscellaneous Rules – Chapters I to XVII and XXVI. (e) Budget Manual Chapters I, II, III and IV. [B] Questions for the second paper will be set by the Finance Department to Government in consultation with the Accountant-General, Bihar, if necessary, from __ (a) Bihar Service Code – All Chapters except VIII and appendices 6,9,12 and 13. (b) Bihar T.A. Rules. (c) Bihar Pension Rules including Liberalized Pension Rules. Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 16 (d) Bihar General Provident Fund Rules. (e) Bihar Financial Rules Vol. I and Vol. II (Appendices 1 to 9 only). The use of books will, be allowed in answering questions in both the papers. [C] An additional Paper will be added for the candidates of the Forest Department for which the following books are prescribed. (1) Forest Manual. (2) Forest Account Code. (3) Forest Department Code. (4) Bihar Treasury Code Vol. I, Chapter VII, Section II, Forest Department Rules 478 to 511. (5) Accounts Code Vol. III Part III Forest Account, Chapters V to VII Articles 240 to 297. the The questions will be set by Accountant General, Bihar. [D] The total number of marks to be assigned to each paper will be 150. Marks will also be separately assigned for a full answer to each question set for the paper. There will be two parts in each of the two papers. The first part will be for 75 marks and will contain simpler question and the second part will be for the remaining marks and will contain other question. [E] It will be the duty of the board to have sets of Questions prepared and to forward a sufficient number of copies of each set in sealed packets to each of the District Officers concerned. The District Officer in receiving the questions will keep them under lock and key and will not open them till the time of examination. [F] The examination will be held under the supervision of the Collector of the District at such places including the premises of the Accounts Training Schools and under such supervision as he may direct. [G] The examination will be held twice a year and it will commence on the 2nd Monday of March and September every year or on such other dates as may be fixed by the Board. [H] On the day of examination the District Officer will himself take questions into the Examination the candidates or have the same distributed under his the the supervision. room and distribute copies time allotted When for to Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 17 examination has expired, he will collect the answer papers and forward them in sealed packets to the respective authorities which set the question. [I] The answer books forwarded to the Accountant-General and the Finance Department will after examination be returned to the Board together with a list showing the names of candidates, the offices to which they belong and the marks obtained by each. The Board will then report to Government in the Finance Department the names in order of merit of the clerks who have passed and offices to which they belong for publication in the Bihar Gazette. [J] (a) Any clerk, who has not passed the preliminary examination in Accounts, will be neither confirmed nor be allowed to cross the efficiency bar; (b) A clerk, who has not passed the final examination, will not be promoted to the Selection grade. (c) In case of non-availability of senior clerk, finally passed in Accounts Examination, any junior Clerk, having passed final Accounts Examination may be temporarily promoted to the Selection Grade; the the that junior Provide clerk temporarily promoted to the Selection grade shall be reverted to the post of Clerk if the clerk senior to him passes the final Accounts examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection grade prior to him.” Considering the scope of Rule 157(3)(J) (3) it was held by the Full Bench of this Court in the case of Maheshwar Prasad Singh Vs. State of Bihar reported in 2000(4) PLJR, 262 that the Clerk of Mufassil offices could/can not be promoted to the selection grade posts without passing final examination in Accounts. Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 18
Decision
In view of the above, there would be no difficulty in coming to the conclusion that in terms of Rule 157(J) of the Rules passing of departmental examination is mandatory for any clerk for earning his usual promotion inasmuch as when an employee could be even denied crossing of the efficiency bar in the same pay scale and on the same post, it cannot be envisaged that a Clerk not passing the required departmental examination would be entitled for grant of time bound promotion specially when Para-11(vi) of the Govt. Resolution dated 30.12.1981 clearly lays down so in specific terms. Thus from a conjoint reading the provision of Rule 157 (J) of the Board Misc. Rules and underlined portion of paragraph 11(ii), (iii) and (vi) of the Resolution of the Finance Department dated 30.12.1991 it would be clear that the time bound promotion also could not have been granted to any Clerk who had not passed the departmental examination. The view taken by the learned Single judge in the case of Bishwanath Prasad (Supra) , in absence of consideration of the relevant provision of the statute, namely Rule 157(J) of Bihar Board’s Misc. Rules, therefore, has to be held to be per in curium. Coming to the facts of the case of Dinesh Narayan Mishra (supra), it would be found that in that case the petitioner on completion of 50 years of age had been granted time bound Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 19 promotion and this Court, therefore, had read into such promotion the possible exemption from passing the departmental examination permissible under the Government Rules. This would become clear from paragraph 4 of the judgment in the case of Dinesh Narayan Mishra (supra) wherein it was held as follows:- “Considering all the facts and circumstances, it is found that petitioner was entitled for consideration for exemption from taking the required examination on account of having crossed 50 years of age and, since the concerned authorities granted him time bound promotion without asking him to make specific application for relaxation or condonation, it should be deemed that the concerned authorities granted the required relaxation/exemption from taking the departmental examination. It is further found that petitioner not being guilty of any misrepresentation or fraud cannot be deprived of the benefit of such promotion after long number of years when he has, superannuated from service.” In the present case there is no denial of the fact that the petitioner was granted time bound promotion in the year 1986 while he was only aged about 36 years, his date of birth being in the month of May, 1950. In that view of the matter, this Court cannot also assume in favour of the petitioner at least in the light of the law laid down in the case of Dinesh Narayan Mishra (supra) that he had already been granted exemption from appearing in the Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 20 departmental examination. That being so, today after a period of nearly three years of the retirement of the petitioner when all the excess amount has been recovered from the petitioner pursuant to the impugned order passed on 17.01.2010, this Court is not inclined to re-open the chapter afresh by way of allowing refund of the excess amount paid to him on account of illegal grant of time bound promotion which had been subsequently cancelled by the impugned order. This aspect also as with regard to recovery of excess amount from an employee has been settled by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttarakhand & Ors. reported in 2012(8) SCC 417 wherein after considering all the earlier judgments including the case of Syed Abdul Quadir Vs. State of Bihar reported in 2009(3)SCC 475, it was held as follows:- “13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 21 posts in the administrative hierarchy. 14. We are concerned with the excess payment of public money which is often described as “taxpayers’ money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment. 15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.” Patna High Court CWJC No.15579 of 2012 (2) dt.28-02-2013 22 In view of the fact such recovery was sought to be made while the petitioner was still in continuing in service the exception carved out by in Para-15 of the impugned judgment of Apex Court in the case of Chandi Prasad Uniyal (supra) shall also not apply. Thus for the reasons indicated above this Court does not find any merit in this writ application and the same is, accordingly, dismissed. Amin/- (Mihir Kumar Jha, J)