1. Leave granted.

2. The Bihar State Electricity Board (for short "the Board") is in appeal before this Court against the judgment of the Division Bench of the Patna High Court wherein two memoranda dated 15-2-1996 and 1-4-1996 issued by the Executive Engineer of the Board stand set aside and quashed.

3. On the factual score it appears that both the writ petitions CWJCs No. 4576 and 1007 of 1997 contained a challenge to the abovenoted two office orders dated 15-2-1996 and 1-4-1996. The writ petitioners, respondents herein, assert that both the writ petitioners have been given yearly increments based on service records without any misrepresentation on their part and that they have passed the Hindi Noting and Drafting Examination in the year 1993. The Board, however, on the basis of the abovenoted two memoranda had ordered for recovery of diverse sums of money paid to them as and by way of increments on the ground that they did not pass the Hindi Noting and Drafting Examination at the relevant time which was a condition precedent for the grant of annual increment in terms of the policy decision of the Board.

4. Be it noted that the Board by its Resolution No. 537 dated 16-7-1979 adopted the Bihar Government Service (Hindi Examination) Regulation, 1968 and made it applicable to the Board employees. Regulations 7 and 8 are set out hereinbelow:

"7. Such government servants, who have to pass the Hindi Reading Writing Examination in Devnagari script or Hindi Noting and Drafting Examination in Devnagari script or both the examinations, shall neither be given increment nor be confirmed nor should they be allowed to cross the efficiency bar till such time as they pass the required Hindi examination or examinations.

8. Stoppage of increment shall have non cumulative effect. The government servant concerned after passing the required examination or examinations, shall draw pay from the following date of that last examination at which he appeared and passed, at that stage of the timescale to which he shall be entitled, if his increment (increments) had not been stopped. No arrears of the stopped increment shall be payable."

5. Even a cursory look at the abovenoted two Regulations would depict the mandatory requirements of the Regulation that persons not being able to pass the Hindi Noting and Drafting Examination in Devnagari script or the Hindi Reading and Writing Examination in Devnagari script or both the examinations shall not be given increments or any promotion nor be allowed to cross the efficiency bar till such time the employees passed such examination or examinations and the entitlement to increment or promotion or crossing of the efficiency bar would commence only after passing of the required examination or examinations and not at any time prior thereto. It has been specifically stated that no arrears of the stopped increments shall be payable.

6. On the further factual score it appears that the writ petitioner, Shri Bashishtha Narain Prasad and another being respondents herein, joined the services of the Board in or about the year 1966 as Accounts Assistants and in due course of time they were, as a matter of fact, being paid in the normal course of events their salaries together with all due increments and also promotions in the scale and the grade. Resolution No. 537 dated 16-7-1979 as noted above was adopted by the Board making it necessary for the employees to pass the departmental examination of Hindi Noting and Drafting but in spite thereof all due promotions and increments were allowed to the petitioners and it is on this score that the petitioners assert that only in the year 1993 they came to know about the requirement and as such appeared in the examination in December 1993 wherein the petitioners were declared successful. Incidentally the Board also by Resolution No. 119 dated 15-3-1996 laid down that all employees of the Board excepting Class IV employees should pass such an examination within 31-3-1997. In the said resolution the Board, however, did exempt those employees having a length of service of 30 or more years or are of the age of more than 55 years from such a requirement of examination and it is on this score that it was contended before the High Court, as appears from the record, that the Board itself was not very serious as regards the implementation of such a requirement as otherwise the resolution of 1979 could not have been dealt with in the manner as it had been by Resolution No. 119. The records depict that the Board has in fact started implementing the 1979 resolution retrospectively and started deducting the increments already granted from the salaries of the employees on or since the year 1994 and it is on this count that several writ petitions were filed and the learned Single Judges of the Patna High Court in fact have quashed the orders for recovery of such an amount on the ground that there have been no misrepresentations on the part of the petitioners and as such the amount already paid to the employees could not be recovered even if the same were paid by mistake. Subsequent thereto, however, a different view was expressed by some of the learned Single Judges of the Patna High Court by reason wherefor the matter was placed before the Division Bench and the latter by its judgment quashed the abovenoted two recovery orders and hence these appeals before this Court.

7. Admittedly, the writ petitioners have been allowed annual increments even without passing the Hindi Noting and Drafting Examination which according to Mr Pramod Swarup, learned advocate appearing for the appellant Board has become a condition precedent and part of their service conditions and question of there being any entitlement dehors the same does not and cannot arise. Mr Swarup contended that Regulation 8 is rather categorical on this score as to the date of entitlement and since its deemed effect as a part of the condition of service, the appellant Board is within its authority and jurisdiction to deduct the amounts paid. In short, the submission of Shri Swarup on behalf of the appellant Board is that since the writ petitioners are not entitled to receive any increment, question of retention of the amounts paid whether by mistake of fact or otherwise does not and cannot arise. We, however, are not in a position to lend any credence to the same by reason of the fact that while the increments granted have been sought to be recovered but promotions given have not been withdrawn or cancelled, the Board being the governmental agency and fairness being the only accepted methodology cannot maintain a dual standard on the basis of the selfsame Regulation. Regulation 7 of the Regulation itself provides that there shall not be any increment or any promotion nor would the employees be allowed to cross the efficiency bar. The petitioners have been given due promotions and as a matter of fact the petitioner in CWJC No. 4576 of 1997 is posted as an Accountant in the Electricity Supply Sub Division at Sheohar Town in District Sheohar on promotion. Of the dual benefits conferred the Board however thus withdrew only one part of the benefit under the resolution whereas it lent a blind eye as regards the other part of the benefit flowing from the resolution. This, in our view is not permissible since dual standards are not only non acceptable but ought to be avoided more so by reason of the factum of the appellant being an authority within the meaning of Art.12 of the Constitution.

8. The contention in support of the appeal as regards the deemed incorporation in the terms and conditions of service cannot also find any support by reason of the fact that unilateral change of terms need not be had. There is no documentary evidence available on the record of this matter through which even an intimation to the staff can be said to have been effected and in the absence of which question of affording any credence to the submission of Mr Swarup on this score does not arise.

9. Further, an analysis of the factual score at this juncture goes to show that the respondents appointed in the year 1966 were allowed to have due increments in terms of the service conditions and salary structure and were also granted promotions in due course of service and have been asked after an expiry of about 14-15 years to replenish the Board exchequer from out of the employees salaries which were paid to them since the year 1979. It is on this score the High Court observed that as both the petitioners have passed the examination though in the year 1993, their entitlement for relief cannot be doubted in any way. The High Court has also relied upon the decision of this Court in the case of Sahib Ram v. State of Haryana (1955 Supp (1) SCC 18 : 1995 SCC (L&S) 248) wherein this Court in para 5 of the Report observed:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs."

10. The High Court also relied on the unreported decision of the learned Single Judge in the case of Saheed Kumar Banerjee v. Bihar SEB (CWJC No. 710 of 1994 disposed of on 27-1-1995). We do record our concurrence with the observations of this Court in Sahib Ram case (1955 Supp (1) SCC 18 : 1995 SCC (L&S) 248) and come to a conclusion that since payments have been made without any representation or a misrepresentation, the appellant Board could not possibly be granted any liberty to deduct or recover the excess amount paid by way of increments at an earlier point of time. The act or acts on the part of the appellant Board cannot under any circumstances be said to be in consonance with equity, good conscience and justice. The concept of fairness has been given a go by. As such the actions initiated for recovery cannot be sustained under any circumstances. This order however be restricted to the facts of the present writ petitioners. It is clarified that Regulation 8 will operate on its own and the Board will be at liberty to take appropriate steps in accordance with law except however in the case or cases which has/have attained finality.

11. While we record our concurrence as noted above, in regard to the decision of the matter in issue and in particular reference to the factual aspect we do not feel inclined to accept the observations of the High Court pertaining to Regulation 8 of the Regulation. Be it noted that the High Court in para 13 of the judgment observed that the Board shall not be allowed to pass an order for recovery of the said amount as the said amount has already become due to them. This observation sounds contrary to Regulation 8 of the Regulations which records that no arrears of the stopped increments shall be payable even though the person would pass the examination later on. We, therefore, record our disapproval to this observation of the High Court.

12. In the view aforesaid, we do not find any merits in these appeals. The appeals are, therefore, dismissed. But, there shall be no order as to costs.