IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9115 of 2005 MD.SADRUDDIN Versus THE STATE OF BIHAR & ORS ----------- 06/ 25-02-2010 Heard Mr. Behzad Akhtar for the petitioner, Mr. Shashi Shekhar Prasad Sinha, learned assisting counsel to G.P. 9 and Mr. L.P.K. Rajgrihar for the Accountant General. The petitioner superannuated from the post of Headmaster, Middle School, Dargah, Anchal-Mahendru, Patna with effect from 31.3.2003 and filed the writ petition for fixation of his pension and gratuity. Facts in brief is that the petitioner was appointed as an Assistant Teacher on 4.5.1962 and after being transferred to different schools, he superannuated from the post of Headmaster while drawing a salary of Rs. 11,500/-. The pension paper of the petitioner was forwarded for finalization of his pension and other pensionary entitlements on the basis of the last salary drawn i.e. 11,500/-. It is in the course of finalization of his pension and pensionary entitlements, that it came to be noticed that the pay-fixation of the petitioner was not correctly carried out and that the petitioner should have superannuated at monthly salary of Rs. 10,250/- per month. The respondent authorities of the State Government pending finalization of the pension case of the petitioner had allowed a provisional pension of Rs. 5,750/- per month on the basis of the last salary drawn by the petitioner. It is during this course of finalization of pension that it - 2 - came to be noticed that the salary of the petitioner had not been correctly fixed in the earlier stages with effect from 1.1.1986 and thereafter with effect from 1.1.1996 and as a consequence thereof the petitioner had drawn excess pay. No doubt, the petitioner being the Headmaster and thus the Drawing and Disbursing Officer had fixed his own salary and forwarded the same but it was duly approved by the District Superintendent of Education and others. In fact it is only thereafter that the petitioner continued to draw the salary only to be noticed after retirement that the salary had neither been correctly fixed nor the approval granted was in accordance with the Rules. The said mistake was subsequently corrected under a re-fixation statement issued by the District Superintendent of Education on 5.9.2005 and on the basis whereof the petitioner was found to have superannuated on a salary of Rs. 10,250/-. Upon such information being forwarded to the Accountant General the pension payment order and the gratuity payment order were issued, copy whereof has been placed at Annexure-D to the counter affidavit filed on behalf of the Accountant General. Although the mistake was rectified but the office of the Accountant General did not suggest for recovery of the excess salary drawn on behalf of the petitioner. However, on the basis of the provisional pension fixed by the authorities of the State Government on the basis of the last salary drawn by the petitioner on the date of superannuation of Rs. 11,500/- the petitioner continued to draw a provisional pension higher than to which he was legally entitled and in this process he drew a surplus amount of Rs. 60,276/-. - 3 - A second supplementary counter affidavit was filed on behalf of the District Superintendent of Education, Patna and in which it was stated that by reason of the incorrect pay fixation leading to an incorrect sanction of provisional pension at an incorrect rate the petitioner drew pension to the tune of Rs. 3,16,776/- in place of Rs. 2,56,500/- and in this manner he drew a surplus amount of Rs. 60,276/-. The surplus amount has been adjusted from the commutation of pension amount of the petitioner. I find no infirmity in the action of the authorities. On the contrary, the authorities of the State Government and the Accountant General have taken a rather lenient approach in the case of the petitioner in not seeking recovery of the excess salary drawn by the petitioner by reason of incorrect pay-fixation. The approach of the authorities is also to be appreciated for the reason that the amount which has been sought to be adjusted from the pension commutation amount is the amount which had been received by the petitioner by way of provisional pension which obviously was subject to finalization of his entitlement. Having regard to the circumstances set forth, there is no merit in the writ petition, it is dismissed. S.Sb/- (Jyoti Saran, J.)