IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14470 of 2002 Sri Bhagwan Singh, Son of Jamuna Singh, Resident of Village Sirshiya, P.O. Kumargawa, P.S. Singeshwawr, District Madhepura, previously Saharsa. ----------- Petitioner Versus 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2. District Superintendent of Education, Supaul. 3. District Accounts Officer, Saharsa. 4. District Accounts Officer, Supaul. 5. Principal Middle School, Pipra Bazar, Supaul. 6. Accountant General, Bihar, patna. 7. Senior Accounts Officer, Office of Accountant General-II, Bihar, Patna. ----------- Respondents ----------- 3 02.07.2010 No one appears on behalf of the petitioner. Counsel for the State is present. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of an appropriate writ order or direction for quashing the order of the Senior Accounts Officer, Accountant General, Bihar, Patna addressed to the District Superintendent of Education, Supaul, copy of which has also been supplied to the petitioner as contained in letter No. 12 dt. 23/1/2002 annexed as Annexure-1 whereby excess payment made to the petitioner due to wrong fixation of pay by the respondents has been ordered to be recovered/adjusted 2 which is unfair, unjust, illegal, arbitrary and malafide and against the decision of this Hon’ble Court and Hon’ble Apex Court as the excess amount paid to the petitioner has been paid not due to his fault, fraud or misrepresentation but due to the fault of the authorities themselves and hence the same cannot be recovered and or any other order or orders as this Hon’ble Court may deem fit and proper under the circumstances of the case.” From reading of the writ application as also hearing the counsel for the State this much becomes clear that the pay fixation of the petitioner to his detriment was made after his retirement as would be evidenced from perusal of Annexure-1, a communication of the office of the Accountant General. While it may be permissible in law to examine the entitlement at the time of retirement of a pensioner to the pay-scale to which he would have been allowed to draw his salary for the purpose of computation of his pension in terms of the Pension Rules, it would be wholly unreasonable to also direct for refund of excess amount, inasmuch as, at least in the communication of the Accountant 3 General it does not appear that there was any fraud or misrepresentation made by the petitioner for getting such higher salary. That being so, while this Court would not interfere with the pay fixation made by the Accountant General leaving the petitioner on the last pay of Rs. 8,300/- but the direction given therein to the District Superintendent of Education, Supaul to make recovery of the excess amount paid to the petitioner is hereby quashed. In other words, the petitioner will get all his retirement benefit only on the basis of the last pay fixed at Rs. 8,300/- as per the calculation given by the Accountant General but any excess amount already drawn by the petitioner in his service period will not be recovered from him, inasmuch as, this Court also had on 16.1.2003, while adjourning the case, passed an interim order to the same effect. In absence of counter affidavit, this Court in fact also is not aware as to the reasons of such excess payment and therefore, now after ten years of the 4 superannuation of the petitioner, he will not be subjected to any recovery. With the aforementioned observations and directions, this application is disposed of. Rsh (Mihir Kumar Jha, J.)