IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6932 of 2000 BALESHWAR PRASAD Versus THE STATE OF BIHAR & ORS ----------- For the Petitioner : Mr. Ajay Kumar Gautam, Advocate For the State : Mr. Sunil Kr. Mandal, S.C.XV For the Accountant General : M/s L.K.P.Rajgrihar & J.P.Karn, Advocates ------------ 06/ 13.8.2008 Heard learned counsel for the parties. Petitioner having retired from the post of Clerk-Steno with effect from 31st December, 1999, has moved this Court claiming non-payment of his pension, gratuity and leave encashment. Respondents have filed a counter affidavit in the case in which they have stated that full pension of the petitioner has been sanctioned and authorized and his leave encashment amount has been paid. However, it is stated that an amount of Rs.1,11,104.00 has been deducted from the gratuity of the petitioner, with payment of the rest amount to him, there was an Audit objection with regard to posting of the petitioner as Clerk-Steno in the office of the District Inspectoress of Schools, Muzaffarpur in the year 1980, since 2 there was no sanctioned post of Clerk-Steno in that office. Petitioner has filed a rejoinder to the counter affidavit along with which he has annexed the order of his posting at Muzaffarpur. Annexure-5 thereof is an order of Regional Deputy Director of Education, Muzaffarpur dated 16.12.1980, by which it appears that the petitioner was posted in the office of the District Inspectoress of Schools and was directed to be paid his salary and allowances of steno. Pursuant to this order petitioner joined there and continued in service. Learned counsel for the State raises objection that as the post of Clerk-cum-Steno was not a sanctioned post in the office of the District Inspectoress of Schools, the petitioner was not entitled for the salary of the same. A team of Audit raised objection and hence the excess amount paid to the petitioner had to be realized from the petitioner, which is in accordance with law. From perusal of Annexure-5 it is clear that the petitioner was posted in the office of the District Inspectoress of Schools, Muzaffarpur by a valid order of 3 Regionasl Deputy Director of Education, Muzaffarpur, who was a competent authority for transfer and posting of any employee of the grade of petitioner. Petitioner worked in the office of District Inspectoress of Schools, and was paid his salary and allowances as per the order of the said Regional Deputy Director of Education dated 16.12.1980 (Annexure-5). Therefore, it cannot be said that the petitioner drew his salary illegally. The objection of the Audit may be bonafide as post of Clerk-Steno may not be a sanctioned post in the said office. But in this case the responsibility of posting of the petitioner on that post in the said office and granting him salary and allowances of Clerk-Steno squarely falls on the shoulder of the concerned Regional Deputy Director of Education. As the petitioner, under a valid order of the competent authority drew his salary, it cannot be accepted that excess amount received by him as Clerk-Steno was an illegal payment to him recoverable from his pensionary benefits. In the circumstances, recovery of the said amount from the gratuity of the petitioner is held to be illegal. The respondents are directed to issue necessary 4 sanction order for the said amount to the Accountant General within one month from the date of receipt/production of a copy of this order. Upon receipt of the same, the Accountant General shall also issue necessary authority slip to the concerned Treasury Officer within a period of two weeks thereafter for disbursement of said amount to the petitioner. With the above observations/directions this writ application is disposed of. ( J. N. Singh, J. ) A.H.