IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.38 of 2008 DR.SACHCHIDANAND DUBEY Versus THE STATE OF BIHAR & ORS ----------- For the petitioner: M/s A.B.Ojha & Nilesh Kumar, Advocates For the State : Ms Archana Sinha, AC to GP 14 For Accountant General: Mr. Madhuresh Prasad, Advocate ------- 2. 12.11.2009 Heard learned Counsel for the petitioner and the learned Counsel for the State as also the learned Counsel for the Accountant General. The petitioner superannuated from the post of Principal of Teachers Training College, Hazaribagh on 28.2.1990. While in service he was granted promotion to the junior selection grade, senior selection grade followed by super selection grade. When he was denied actual monetary benefits of the promotion notwithstanding orders of this Court to consider grant of timely promotion, he came to this Court for the second time in CWJC No. 9387 of 1998 along with others aggrieved by grant of notional promotion. This Court directed that the delay in promotion being attributable to the respondents the petitioner was entitled to actual monetary benefits. Learned Counsel submits that on the date of superannuation the petitioner was holding the post of Principal which is equivalent to Regional Deputy Director of Education in the super time scale carrying the pay scale of Rs. 4100-5300/- for which the replacement scale is Rs. 14,300-18300/- placing reliance upon the government order dated 22.8.2000 at Annexure 5. His pension arrears was fixed accordingly. When the petitioner raised his claim for fixation of his pension in accordance with the government instruction dated 2 12.12.1999 more particularly clause 6 of the same treating him in the scale of Rs. 14,300-18,300/- he is being made to shuttle between the office of Accountant General and the State Government. The respondents have finally held that he is entitled to the scale of Rs. 10,000-15200/-. The submission is that if the petitioner by a fiction of law is deemed to have retired while drawing the pay scale of Rs. 14,300-18,300/- and pensionary benefits fixed when setting aside the grant of notional promotion this Court directed payment of actual monetary benefits after his superannuation, there can be no justification for the respondents to allow their mind to boggle thereafter and not to treat him as having retired from that scale for other purposes thereafter. He relies upon an order of this Court in CWJC No. 5312 of 2002 holding that pension had to be fixed in the scale which the incumbent is deemed/was drawing on the date of his retirement. The law stands settled that where the law fictionally creates a situation and that situation has been accepted by the respondents that he is deemed to have retired drawing the scale of Rs. 14,300-18,300/- and retrial benefits paid on that scale, the respondents are obliged to carry the legal fiction to its logical end. Their mind cannot be allowed to boggle for accepting the legal fiction for one purpose and not for another purpose. Unless and until the very grant of scale of pensionary benefits in the scale Rs. 14,300-18300/- and the consequent grant of monetary benefits to him is not set aside which does not appear probable today and which is not the case of the respondents in the 3 counter affidavit, in any event there can be no justification for fixing his pension under Clause 6 on scale lower than that. The order dated 29.6.2004 is accordingly set aside. The writ application is allowed. The respondents are directed to fix the pensionary benefits of the petitioner under Clause (6) of the government instruction dated 22.12.1999 in the light of the aforesaid discussion. Let such consideration be done and decision taken in accordance with law within a maximum period of four months weeks from the date of receipt and/or production of a copy of this order. Snkumar/- (Navin Sinha,J.)