IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11168 of 2004 MUKHTAR SINGH, son of Late Sheo Pujan Singh, resident of village Sitab Diyara, Bhagwan Tola, P.S. Bairiya, District Balia (U.P.) … Petitioner Versus 1. THE STATE OF BIHAR 2. The Accountant General, Bihar, Patna 3. The Accounts Officer of accountant General, Bihar, Patna 4. The Secretary Ministry of Home Bihar, Patna 5. The Deputy Secretary to the Government, Home (Police Department), Bihar, Patna 6. The Director General cum Inspector General of Police, Old Secretariat, Bihar, Patna 7. The Deputy Inspector General of Police (Crime), Bihar, Patna 8. The Superintendent of Police Crime Investigation Department, Bihar, Patna 9. Treasury Officer Secretariat, Treasury Office, Irrigation Building, Bihar, Patna … Respondents. ----------- 5. 19.8.2009 Heard counsel for the parties. The prayer in this writ application of the petitioner reads as follows: “ The present writ application quashing the letter being letter no. 4/P 01-2026/2001 Gr.AA 351 dated 8th January 2002 issued by the Deputy Secretary respondent no.9 in favour of respondent no.8 by which the date of retirement of the petitioner has been approved from 31.1.2001 but on the other hand it has been directed that the petitioner is not entitled for pension or pensionery benefit for the period 30.1.1998 to 31.1.2001 and further it has been order that if any payment has been made under 2 the head of pensionary benefit the same be deducted from his gratuity leave encashment etc. Further as well as the order dated 3.1.2002 issued under the signature of respondent no.7 to the accounts office A.G.Bihar Patna (respondent no.3) recommending therein the pension of the petitioner after deduction of amount from his gratuity commutation of the pension (Annexure 2 and 3) respectively. Further an appropriate direction be issued directing the respondents concern to pay the due retiral amount of the petitioner like wise gratuity leave encashment due pension for the period 1.7.1998 to 4.11.1999 as well as the one increasement of 1.2.1999 and payment thereon with arrear alongwith D.A. with interest of the market value besides the statutory interest provided under the law till the date of payment. Further direction be issued to the concern respondent to revise the pension after calculating one increment of 1.2.1999 and accordingly pay the same with arrear.” Counsel for the petitioner would 3 submit that even if everything in the impugned order be taken to be correct, the petitioner cannot be denied payment of salary for the period 5.11.1999 to 31st January, 2001, inasmuch as by virtue of the order of this Court dated 24.9.1999 his payment of salary could have been withheld only for the period 30.6.1998 to the date of acceptance of joining in terms of the aforementioned order of this Court dated 24.9.1999 in C.W.J.C.No. 3110/98. Counsel for the State would submit that as because the petitioner’s acceptance of joining was dependent on determination of the age and determination of age was made after obtaining opinion of the Law Department, the petitioner was not allowed to withdraw any salary for the said period because the Law Department had given an opinion for withholding both salary as also pension for the aforementioned period. In the opinion of this Court such interpretation of the earlier order of this Court dated 24.9.1999 either by the Law Department or by the parent Department of the petitioner, Police Department, is both 4 uncalled for and unjustified. Earlier the dispute with regard to date of retirement of the petitioner brought into effect from 30.6.1998 was made subject matter of C.W.J.C.No. 3110/98 wherein this Court having noted the case of the petitioner of his having passed matriculation examination prior to his entry in service as also furnishing the said information within ten years of entry in service had directed for taking the age of matriculation into account and also fixed the date of retirement of the petitioner taking into consideration if the petitioner has served the Government while he was minor. On the basis of the aforementioned direction of this Court dated 24.9.1999 the determination was made and it was found that since the petitioner had worked for ten months before attaining the age of 18, he having got benefit of ten months service prior to his attaining majority was reduced of the said period of service in the total length of service which as per matriculation certificate would be extended upto 30th November, 2001. Consequently after deducting 5 ten months period the date of retirement of the petitioner was fixed as 28.1.2001/ 31.1.2001. The petitioner does not have any grievance with regard to the said fixation on date of birth but his grievance is that when there was an order of this Court not to pay salary only for the period 30.6.1998 till such determination of the date of retirement of the petitioner, the Department could not have passed an order for making no payment of salary/ pension for the period 5.11.1999 to 31.1.2001. This Court would find the said grievance of the petitioner to be very reasonable because by the strength of the order of this Court dated 24.9.1999 the petitioner at best could have been deprived for his payment of salary from 30.6.1998 and till the petitioner in terms of the said order dated 24.9.1999 had submitted his joining. Admittedly the petitioner was reinstated in service in terms of the order of this Court dated 24.9.1999 and his date of retirement was fixed as 28.1.2001/ 31.1.2001. The said period, therefore, in 6 which the petitioner was either waiting for the decision of the Department or was kept waiting cannot be treated to be period without benefit of the payment of salary. Consequently the petitioner must be held to be entitled for payment of salary from 5.11.1999 to 31.1.2001 and his all retirement benefit to be also calculated on the basis of his length of service from 21.10.1961 to 31.1.2001. The petitioner of course will not be entitled for any amount of retirement benefit if that was paid to the petitioner between 30.6.1998 to 24.9.1999 and if any such payment has been made on any of the heads the same must be accounted for in the ultimate amount that would be payable to the petitioner either on the head of salary or retirement benefit. As the petitioner has retired way back on 31.1.2001, the admissible amount of salary for the period 5.11.1999 to 31.1.2001 as also revised retirement benefit must be paid to him within a period of six months from the date of receipt/ production of a copy of this order. 7 This application is, accordingly, allowed to the extent indicated above. (Mihir Kumar Jha,J.) Surendra/