IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10867 of 1997 RAM NATH SINHA son of late Sri Baldeo Sinha, resident of village Sachaul, P.S. Hasua, District Nawadah. Versus 1.THE STATE OF BIHAR, through Commissioner Cum Secretary, Department of Human Resources, Government of Bihar, Patna. 2.The District Superintendent of Education, Nawadah. 3.The District Education Officer, Nawadah. 4.The District Treasury Officer, Nawadah. 5.The Accountant General Bihar, Patna. 6.The Senior Accounts Officer Cum Assistant Accountant General Bihar, Patna. ----------- 5 12.8.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(A)For issuance of a writ in the nature of certiorari for quashing the order contained in Latter No. Pen-X-205 dated 10.6.96 and Letter No. Pen-X-9-951 dated 2.1.97 (Annexed as Annexure- „2 and „3), by which Senior Accounts Officer (Respondent No.6) has directed the District Superintendent of Education Nawadah to adjust and recover the excess amount approximately Rs.22,000/- paid to the petitioner in between the period from 1.3.1989 to 31.1.1996. Respondents may be further directed not to recover the amount from the petitioner ordered in Letter No. Pen-x 205 dated 10.6.1996 and Letter No. Pen-x-951 dated 2.1.97. (B)For issuance of writ in the nature of certiorari for quashing of order contained in Letter No. Pen-10/11745 dated 3.1.1997 (annexed as Annexure- 3/1) by which the respondent No.6 has fixed the pension of the petitioner Rs.1372/- (Rs. One thousand three hundred and Seventy two) per month on the basis of pay of Rs.2750/- per Month while the pension of the petitioner should have been fixed Rs. 1409/- (Rs. One thousand four hundred and nine) per month on the basis of last pay of Rs.2825/- per month and further for quashing of Letter No. Pen-10-sa-597 dated 10.9.1997 (annexed as Annexure- „4) by which the respondent No.6 refused the prayer of the petitioner and remained obstinate on his first stand of fixing the pension of the 2 petitioner vide P.P.O. 265007 of Rs.1372/- and they may be further directed to fix the pension of the petitioner Rs.1409/- per month on the basis of last pay of Rs.2825/- drawn by the petitioner and pay the same to the petitioner regularly. ©Respondents may be directed to pay the arrears of pension which is due to respondents till date with interest.” Counsel for the petitioner at the out set would confine his prayer with regard to recovery portion of the impugned order and would not question of refixation of pay. That would mean that the petitioner has given up the prayer as contained in paragraph nos. 1 (B) and 1 (C) and has questioned only recovery of the amount of Rs. 22000/- as specifically stated in paragraph 1 (A). With regard to the aforementioned confined relief, counsel for the petitioner would submit that true it is that as per the government order dated 6.12.1990 the additional three increments was to be given to only such Intermediate untrained, Intermediate trained or Graduate untrained teachers whose total salary would not exceed to Rs. 2040/- on grant of revised pay scale of Rs.1200 to 2040/- and on that basis pay fixation of the petitioner with three increments was not admissible to him as on grant of such three increments his pay had exceeded the amount of Rs.2040, but then for such pay fixation the petitioner could not be held to be responsible in any manner, inasmuch as, neither he had filed any application nor had made any misrepresentation. Counsel in this regard has relied on assertion made in paragraph 12 of the writ application which reads as follows:- “That the petitioner reiterates that the said three increments in question have not been 3 allowed either on the application or on the misrepresentation of the petitioner.” Counsel for the petitioner in this context has relied upon the judgment of the Apex Court in the case of ‘Shaheb Ram Vs. The State of Hariyana & Ors’ reported in 1995 (Suppl) (1) SCC 18 and further on the judgment of the Apex Court in the case of „Syed Abdul Qadir & Ors. Vs. State of Bihar & Ors.’ Reported in (2009) 3 SCC 475. Counsel for the State, on the other hand, would submit that once this position becomes clear that the petitioner was not entitled for grant of three increments by way of pay fixation, any amount drawn by the petitioner from the public fund beyond his entitlement was capable of being recovered from him. In this context he has also placed reliance on paragraph 10 of the counter affidavit, wherein it has been stated by the respondents that it was on account of wrong calculation and implementation of the rules that the petitioner was given excess payment by way of three increments. It would be thus also relevant to quote paragraph 10 of the counter affidavit which in fact is in reply to aforesaid paragraph 12 of the writ application and the same reads as follows:- “That so far the statement made in paragraph no.12 of the writ petition is concerned it is submitted that it is wrong calculation and interpretation of rules that this situation has arisen. The writ petitioner has to refund the excess amount received by him.” Once this position becomes clear from the aforesaid 4 statement in the counter affidavit that the petitioner was given such additional three increments on account of wrong calculation or misinterpretation of rules by the Respondents it would automatically follow that the petitioner cannot be said to be responsible for such wrong fixation of pay or payment of consequential amount, inasmuch as, it is the respondents themselves who have admitted that they had wrongly interpreted the rules or had made wrong calculation with regard to entitlement of the petitioner at the time of revision of his pay. The Apex Court, in fact, in an exactly similar situation as with regard to wrong interpretation of Fundamental Rule 22 C in the case of Teachers of Bihar in Abdul Qadir case (Supra) had held that if the respondents themselves were not clear about the applicability and scope of Fundamental rule 22 C, the concerned teacher could not have been held liable for recovery. Thus, following the ratio of Abdul Qadir case (Supra) this Court would find that the order of the respondents seeking to make recovery of the excess amount paid to the petitioner is not sustainable and to that extent the impugned orders Annexure 2 and 3 are hereby quashed. It is, however, made clear that the petitioner‟s payment of pension or any other retirement benefit would be strictly made on the basis of his last pay as would be fixed after deducting the three increments and in fact by treating his pay to be Rs.2675/- in place of Rs.2825/- as has been explained in paragraph 8 of the 5 counter affidavit. In other words, petitioner‟s entire payment of retirement benefits would be made as per the salary chart furnished by the Accountant General in paragraph 6 of its counter affidavit showing the petitioner to be entitled for Rs.2750/- and not Rs.2825/- by way of his pay at the time of retirement. Counsel for the petitioner, in fact, informs this Court that pension of the petitioner has been, in fact, fixed on that basis only and therefore the respondents have to only cross check as with regard to entitlement of the petitioner on account of reduction of three increments which was admittedly given beyond the scope of the rule. Subject to the aforementioned clarification, this application is allowed only to the extent indicated above. Abhay Kumar ( Mihir Kumar Jha, J.)