IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10942 of 2007 GIRISH PRASAD SINHA Versus THE BIHAR SCHOOL EXAMINATION BOARD &ORS ----------- 5. 26.09.2008 Heard learned counsel for the petitioner and for the Respondents. The petitioner retired on 31.12.1999 from the post of Deputy Secretary. His last pay drawn was in the scale of Rs. 12000- 16500/-. His pay scale has now been lowered to the scale of Rs. 6500- 10500/- by the impugned order dated 30.06.2007. From 24.09.1981 the petitioner was promoted to the post of Deputy Secretary ad hoc in the pay scale of Rs. 1000-1820/- . He was confirmed as such on 28.2.1986 with effect from 23.1.1985. The controversy arises in the background of 5th pay revision. It is the case of the Respondents that in the 5th pay revision the revised scale admissible to the petitioner was Rs. 2200-4000/-. The revised scale of Rs. 3700-5000/- was wrongly given to him. In pursuance of the wrong fixation by grant of the latter scale, the petitioner came to receive the pay scale of Rs. 12000-16500/- under 6th pay revision when in accordance with the entitlement in the 5th pay revision, his scale was Rs. 6500-10500/-. No rejoinder has been filed on behalf of the petitioner to the counter affidavit and neither the petitioner is in a position to demonstrate his entitlement under the 5th pay revision to dispute the correctness of the submission made by the Respondents. True it is that when the petitioner came to this Court in - 2 - CWJC No. 9566 of 2004 for his retiral benefits, this Court had noticed that in the counter affidavit there was no denial that the petitioner retired in the pay scale of Rs. 12000-16500/- and directed fixation of his retiral dues accordingly. But in Civil Review No. 31 of 2005 preferred by the Respondents, this Court on 18.5.2007 recalled that order, when the issue of the entitlement of pay scale of the petitioner stood reopened. The retiral benefits under the Bihar Pension Rules should be fixed on the basis of last pay drawn. If there was no misrepresentation by the petitioner and now it is apparent that it was the Respondents themselves, who are at fault, this Court would have restrained the Respondents from effecting any recovery from the petitioner of payments made under the higher scale on the date of retirement. However, this Court is informed that recovery has already been effected. Once this Court has arrived at a conclusion that on facts there is nothing to demonstrate that in pursuance of 5th pay revision, the petitioner was not entitled to the pay scale of Rs. 2200-4000/- for which replacement scale is 6500-10500/-, this Court finds it difficult to direct restitution by return of the payments recovered from the petitioner. Any compassion that the Court may have for the petitioner cannot override the law. The writ petition is, accordingly, disposed with directions to the Respondents to fix his eligibility for retiral dues in accordance with law on basis of the pay scale of Rs. 6500-10500/- and pay all his retiral dues within a maximum period of two months from the date of - 3 - receipt and/or production of a copy of this order. Liberty is also granted to the petitioner to submit a representation in respect of any other claims for retiral dues, which is required to be decided within the same time. In view of the statements made in paragraph 19 of the physical condition of the petitioner and that he is almost bed-ridden, this Court considers it proper to direct further that if the legitimate post-retiral dues of the petitioner are not paid to him within the period indicated above, the same shall carry interest @ 6% from the date that it came due till the date of payment and the Respondents shall be at liberty to recover the amount of interest from the delinquent found responsible for that delay. AKS/ (Navin Sinha, J.)