S.K. Katriar, J.
1. Heard learned Counsel for the parties. This writ petition is directed against the order dated 26.7.2001 (Annexure-1), passed by the Superintendent of Police, Munger, whereby recovery is sought to be made from the post-retirement benefits of the petitioner on account of money benefits illegally/wrongly granted to him while in service.
2. According to the writ petition, the petitioner superannuated from the services of the Bihar Government while functioning as Sub-Inspector of Police in the district of Munger. The petitioner has since been granted provisional pension who waits finalization of his pension papers. Before the same could be done, he has been visited with the impugned order wherein it is stated that the petitioner never passed the Hindi Noting and Drafting examination notwithstanding which he was granted the increments admissible to an employee who has successfully passed the Hindi Noting and Drafting examination. The same could be detected at a late stage and, therefore, detailed calculation has been made in the impugned order and is sought to be recovered from the post-retirement benefits being paid to him.
3. While assailing the validity of the impugned order, learned Counsel for the petitioner submits that the impugned order or the counter-affidavit does not allege that the petitioner got the money benefits in question on account of misrepresentation, fraud, suppression of fact, or the like attributable to him. Relying on the judgment of the Supreme Court reported in 1995 Supp. (1) SCC 282 Union of India v. Lala Jagannath Prasad, he submits that the same should not be recovered after superannuation. He next submits that the impugned order is punitive in nature and, therefore, he ought to have been given an opportunity to explain his position before the impugned order was passed.
4. Learned Counsel for the respondents has opposed the writ petition on various counts. He relies on the judgment dated 13.9.2002, passed by this Court on C.W.J.C. No. 13287 of 2000 Bhola Yadav v. State of Bihar, as well as the Division Bench judgment reported in 2002 (2) BUR 1512 Vijay Kumar Singh v. State of Bihar.
5. I have perused the pleadings of the parties and considered the rival submissions. It is the admitted position that the petitioner did not pass Hindi Noting and Drafting examination and, therefore, he was not entitled to the increments which were granted to him which he did enjoy. The question, therefore, for consideration is whether or not the excess payment should be realized from the petitioner after his superannuation. Learned Standing Counsel No. 6 has taken me through paragraph 5 of the counter-affidavit which is to the effect that in terms of Cabinet (Raj Bhasha) Secretariat Resolution No. 361-Ra, dated 15.6.68 (Annexure-A), every Government servant except Class IV employee, who has to read and write in course of his duty, is required to pass "Hindi Nothing & Drafting Examination", failing which he will not be entitled to his admissible increment of confirmation, nor will be eligible to cross the efficiency bar. Reference may also be made to Rule-23 of the Bihar Police Manual 1978 (Vol. II) in this connection:
23. Duties of Police Officers. - It shall be the duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace to prevent the commission of offences and public nuisances; to detect and bring Offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists and it shall be lawful for every police officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinking-shop, gaming or other place of resort of loss and disorderly characters.
It is thus manifest that the petitioner was required to read complaints and write reports in course of discharge of his duty, and he was required to pass the Hindi Noting and drafting examination after he was promoted to Class III post and who superannuated w.e.f. 1.7.2001 while functioning as Sub-Inspector of Police in the district of Munger. The petitioner was not able to pass the said examination and obviously, therefore, the grant of increment was bad-in-law. The State Government is, therefore, entitled to recovery the same.
6. The next question is whether or not it is permissible or discreet for the State Government to recover the excess amount paid to the petitioner while in service from his post-retirement benefits. The issue is concluded by a Division Bench judgment of this Court reported in 2002 (3) PLJR 808 Vijay Kumar Singh v. State of Bihar, wherein just the same question had arisen for consideration of the Court. Paragraphs 28 to 33 of the judgment are relevant in the present context and are set out here in below for the facility of quick reference:
28. In cases where the excess payment has been made to the employees on account of wrong fixation of pay, direction has been issued by the Apex Court with a condition that the authorities may fix instalments for recovery of the same. In this connection reference may be made to the cases of State of Punjab and Ors. v. Devinder Singh and Ors. and Union of India and Ors. v.
Sujata Vedachalam (Smt.) and Anr. .
29. The question in the present case is as to whether the direction for recovery of excess payment made to the employees is valid or not. No doubt, there is no fraud or misrepresentation on the part of the appellants, but the fact remains that this is not a case of only few teachers having been given the benefit. This is a case of interpretation of policy involving several crores of rupees. Large number of assistant teachers of the nationalized schools have been wrongly given benefit of additional increment though they are not entitled as admittedly they were not carrying the duties and responsibilities of greater importance than those attached to the post held by them. The huge amount of public money of a poor State has been paid to them by wrong understanding of the provision of law by the Education Department as well as by the Drawing and Disbursing Officer of the School. When there is a question of involvement of public interest in a case like this, balance has to be struck off between the private interest and public interest. The balance lies in favour of public interest. The sympathy and benevolence has no doubt some role to play while exercising the powers under Article 226 of the Constitution of India, but discretion cannot be exercised at the cost of public interest.
30. The question is as to whether the excess payment already paid to the employees is to be recovered from them or not, can also be examined on the touch stone of principles of equity, fair play and good conscience. According to the employees once the amount has been paid, now the State is estoppel from recovery of the same on the principle of promissory estoppel or equitable estoppel. The principle of promissory estoppel is evolved by equity to avoid injustice. It is neither in the realm of contract nor in the realm of estoppel. The principle of promissory estoppel is that if one party by words or conduct made to the other party a clear and unequivocal promise intending to create a legal relations or effect to arise in future with full knowledge or intention that it would be acted upon by the other parties to whom the promise was made and the other party has acted on the said promise, then the same is binding on the other party making the promise and he would not be entitled to run away from the same. In other words, the doctrine of promissory estoppel works negative and gives protection to the party who rely on the promise and acts upon but does not give a new cause of action. As stated above the doctrine if promissory estoppel is evolved by equity. It is well settled that equity neither creates a law nor extinguishes the law but it assists the law. In the present case, the law is against the employee as they were not entitled to the amount which has been paid to them wrongly. They cannot take shelter of equity as equity cannot be used to violate law. The principles behind the maxim "equity will not surfer a wrong to be without a remedy", is that equity will intervene to protect a right which, perhaps, because of some technical defect, is to enforceable at law. Such is not the situation here. On the other hand, because of the wrong application of the rules and misinterpretation of the circular, they were paid what they were not entitled. Thus, the equity does not help them for the simple reason that there was no obligation on the part of the State Government to apply Rule 22-C of the rules in view of the fact that the said rule was not in existence. When the rule itself was not in existence, it cannot be applied, cannot be enforced, cannot be followed cannot the used for seeking any protection. This apart when the authorities were labouring under the mistake of law there was no question of estoppel.
31. The principles of fair play would simply say that rules of the game cannot be allowed to be made after the game is over or during the game. A fair play is that the parties before entering the arena should know that what would be rule and the parties would be governed by a particular rules of the Central Government as made applicable by the State Government to the State employees. In the present matter the person, who issued the order, did not know that the rules of the game stood amended before the start of the game and applying the non-set rule, he asked one of the parties to start the game. The fair play would not allow such a rule to remain operative nor would allow retention of the benefit in favour of the party who otherwise is not entitled.
32. The principles of good concience would simply say that if you are not entitled to a particular thing then you would not get it and if under some mistake, you obtained it then on detection of the wrong or fault, you must return it. Why in case of detection of the wrong, the conscience should not prick? Why the employee should fight that he is entitled to retain the wrong benefit? Why he should not say that if he fights for his rights tooth and nail then he would be honest enough to return the benefits which were wrongly given to them.
33. Taking into consideration the totally of the circumstances even on the strength of the above discussions, we are unable to hold that no order should be made for the recovery of the excess amount. We would, however, require the State Government to recover the amount in easy and proper instalments. The total amount paid to the employees may be recovered within interest in at least 50 instalments provided such an employees has the tenure of 50 months or more. If an employee does not have a tenure of 50 months or more then the installment may be reduced to a reasonable period so that such an employee does not suffer unnecessary brunt of a cut in the payment/salary etc.
7. It is thus manifest that the amount in question is recoverable from the petitioner at the present stage. We may emphasises, as has been stated by the Division Bench, that the question of such recovery after superannuation is not a rule of law, but a rule of compassion, applicability of which will depend on the facts and circumstances of each case and the attendant circumstances. We cannot close our eyes to the realities of this State which is passing though an unprecedented financial crisis. After division of the State of Bihar w.e.f. 15.11.2000, the present Government is able to meet only 75% of its establishment cost from its revenue. In other words, it is not able to meet its entire establishment cost from its revenue and is unable to pay the legitimate dues of its employees and meet other legal obligations, let alone the question of excess payment to its employees.
8. In so far as the second contention advanced on behalf of the petitioner is concerned, it is stated only to be rejected. The impugned order is not punitive in nature and, therefore, no opportunity had to be afforded to the petitioner to explain his position. It is a question of calculation and adjustment of the excess amount paid to the petitioner which is surely not by way of punishment. The petitioner admits that he did not pass the Hindi Noting and Drafting examination and it is his own case that he was not entitled to the increments he drew while in service, nor does he dispute the calculation before this Court. In fact the respondent authorities have already granted one relief to the petitioner sub silent, namely, the amount is being recovered without interest. His contention is entirely different, namely, the amount should not be recovered after superannuation, which has been discussed and rejected hereinabove.
9. In the result, this writ petition is dismissed.