CIVIL WRIT JURISDICTION CASE No.6432 OF 2005 --- In the matter of an application under Article 226 of the Constitution of India. Vivekanand Choudhary son of late Lalit Narain Choudhary, Resident of village-Kulharia, Post Office. Surihari, P.S.Amarpur, District-Bhagalpur- Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna 2. The Secretary, Revenue and Land Reforms Department, Government of Bihar, Patna 3. The Secretary, Finance Department, Government of Bihar, Patna 4. The Commissioner, Bhagalpur Division, Bhagalpur 5. The Accountant Genera, Bihar, Birchand Patel Path, Patsna-1. Respondents. ----------- For The Petitioner : Mr. Nand Gopal Mishra Mr. Indrajeet Jha For The Respondent : Mr. Sanjay Kumar, G.P.14 For the Accountant General, Bihar : Mr. Arun Kumar Arun P R E S E N T THE HON'BLE MR. JUSTICE JYOTI SARAN Heard learned counsel for the parties. The petitioner is aggrieved by the order bearing memo no.960 dated 5.3.2002 issued under the signature of the Secretary to the Commissioner, Bhagalpur Division, Bhagalpur as contained in Annexure-4, whereby his promotion to the post of Head Typist has been shifted from 1.1.1996 to 1.2.1998. The petitioner is also aggrieved by the 2 authorisation issued by the Accountant General, Bihar as contained in Annexure-9 whereby the pension amount of the petitioner has been reduced from Rs.4075/ per month to Rs.3924/- per month. Brief facts of the matter is that following the pay revision effective in the State under resolution 660 dated 8.2.1999 (Annexure-1), two posts of Head Typist in the office of the Divisional Commissioner, Bhagalpur were earmarked as need based post under memo no.50 dated 18.1.2002. Even prior to the identification of the said need based posts, there was already a post of Head Typist and a post of Junior Selection Grade Head Typist prevailing in the division in addition to 7 posts of typist. The fact is borne from Annexure-2 to the writ petition. It is contended on behalf of the petitioner that the petitioner was promoted to the post of Head Typist with effect from 1.1.1996 and his salary was fixed in the scale of Rs.5000-8000/- which was payable against the post of Head Typist. Copy of the promotion order is placed at Annexure-3 to the writ petition. The petitioner since after the pay fixation continued, to draw the salary of Head Typist until his superannuation on 31.1.2001. It is only after his superannuation, when the 3 pension papers of the petitioner after being processed at the level of the Controlling Authority, was forwarded for necessary authorisation by the Accountant General that an objection came to be raised as regarding the pay fixation of the petitioner. Following the objection raised by the Accountant General, the matter was examined at the level of the Divisional Commissioner and it was held that the scale of the petitioner had been incorrectly fixed. The respondents have filed counter affidavit enclosing the pay fixation order as contained in memo no.531 dated 26.6.2004 (Annexure-F), which sufficiently explains the pay fixation of the petitioner since after his promotion to the post of Head Typist with effect from 1.2.1998. Pursuant to the order as contained in Annexure-4. In fact, the Joint Secretary, Department of Finance, vide memo no.232 dated 10.1.2004 (Annexure-A) examined the issue in the light of the objection raised by the Accountant General taking into consideration the relevant circulars and Rule 22(1)(a)(1) of the Fundamental Rules and came to a conclusion that the last salary drawn by the petitioner on the date of his superannuation on 31.1.2001 would be Rs.6650/- with personal pay of 4 Rs.1198/ and informed the Accountant General by the said letter for necessary authorisation of the retiral dues of the petitioner. Having regard to the relevant documents on the records of the proceedings, I am of the opinion that the matter has been correctly examined by the authorities in the light of the objection raised by the Accountant General and who in elaborate manner have also carried out the refixation of the salary entitlement of the petitioner as on the date of his superannuation ultimately leading to the modified authorisation order(s) issued by the Accountant General. Having held as such, I am also of the opinion that the recovery sought to be made from the pensionary entitlement of the petitioner to the tune of Rs.50,626/- on pretext of excess salary drawn, would not be permissible at this stage for the reason that the department itself had originally processed the pension papers of the petitioner on the basis of the salary fixation order of the petitioner as contained in Annexure-3, which has since been rectified and modified by the order as contained in Annexure-F to the counter affidavit of the State in the light of the objection raised by the office of the Accountant General. No fault having been found on the part of 5 the petitioner in the matter of his pay fixation, the respondents are restrained from effecting any recovery. The writ petition is disposed of with the observations and the directions aforesaid but without any order as to costs. (Jyoti Saran,J.) Patna High Court, Dated, 22nd April,2010, NAFR/ ahk.