IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6118 of 2007 Ramchandra Chaudhry, son of late Bhattu Chaudhary, resident of Village Akwalganj, P.S. Rahuk, Dist. Nalanda. -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Primary Secondary and Adult Education, New Secretariat, Patna. 3. The Director, Primary Secondary and Adult Education, New Secretariat, Patna. 4. The District Superintendent of Education, Nalanda, Dist. Nalanda. 5. The Accountant General, Bihar, Patna. -------- Respondents ----------- 2 02.09.2011 Heard learned counsel for the petitioner and counsel for the State. As with regard to the following prayer of the petitioner:- “1(i) For issuance of an appropriate writ in the nature of certiorari for quashing the order dated 29.3.2007 issued under the signature of respondent no.5 contained in his memo no.1051 dated 29.3.2007 whereby and whereunder respondent no.5 has been pleased to direct the respondent no.4 to calculate the excess paid amount in favour of the petitioner and to take a departmental action for its recovery.” learned counsel for the State has not explained anything beyond the stand taken in the counter affidavit. In the counter affidavit, there is no explanation at all as with regard to the reason of passing of an 2 order of re-fixation of pay of the petitioner, who is said to have retired on 31.1.2007 and was thereafter subjected to the impugned order dated 29.3.2007 only when his pension papers were sent by the controlling authority to the office of the Accountant General. This court had, therefore, given additional opportunity to the counsel for the State to explain as to whether the re- fixation of salary of the petitioner in the pay-scale of Rs. 1400-2600/- with effect from 1.1.1986 and Rs. 5000-8000/- with effect from 1.1.1996 was made on any deliberate misrepresentation made by the petitioner but, the counsel for the State has submitted that he has received no further instruction. Learned counsel for the petitioner, on the other hand, has submitted that the salary of the petitioner in the pay-scale of Rs. 1400-2600/- was fixed under the order of the District Superintendent of Education dated 21.5.2002, which was also approved by the authorized officer of the Finance Department on 30.8.1992. On the basis of it, learned counsel for the petitioner has also submitted that at least there can be no doubt that the 3 pay-fixation of the salary of the petitioner in the pay-scale of Rs. 1400-2600/- with effect from 1.1.1986 was made under the order of the competent authority after following the prescribed procedure. In a large number of cases, this Court has held that while the Accountant General or the competent authority sanctioning pension would be entitled to look into the details of history for fixing the amount of pension by determining the last legally admissible pay but, then, it would not lie within the jurisdiction of the Accountant General to also direct the authorities to make recovery of the excess amount. The Accountant General could do so provided they had been vested with some power but their power is vested only with regard to the fixation and payment of pension of the concerned employee on the last admissible salary drawn by him. The last admissible salary drawn, therefore, even if would be of a lesser amount by detection of any anomaly in the earlier fixation of pay, that can only lead to lesser payment of pension but, it cannot also lead to recovery of the alleged excess amount paid to the employee during his service period unless his 4 direct controlling authorities are satisfied that such excess amount was paid due to fraud or misrepresentation on the part of the employee himself. There would be yet another facet that such order entailing civil and penal consequences cannot be passed without giving notice and/or affording opportunity of personal hearing, inasmuch as, on the basis of such an advice of the Accountant General, it is Government which has now taken steps for seeking recovery from the petitioner. This Court, in fact, had expected the respondents to explain the alleged anomaly in the fixation of pay of the petitioner but no such explanation whatsoever has been given by either from the Accountant General or even by the other official respondents. In that view of the matter, this Court would direct the Director, Primary Education to look into the whole aspect of the matter and if it is found that there was no fraud or misrepresentation on the part of the petitioner in the re-fixation of his pay, the petitioner will not be subjected to any recovery though his payment of retirement benefit will be made only on the basis of his 5 last admissible pay-scale and the last pay to which he was entitled in law. In other words, the last pay as suggested by the Accountant General would be now made the basis for fixation of pension and other retirement benefit but in absence of a fraud/misrepresentation on the part of the petitioner, he would not be subjected to any recovery. Such exercise, however, should be completed by the Director, Primary Education within a period of six months from the date of filing of a self contained representation enclosing also a copy of this order. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)