IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10302 of 2000 Ganpati Pathak, son of late Newa Lal Pathak, resident of Village Karnpur, P.S. Supaul, Dist. Supaul. ------- Petitioner Versus 1. The State of Bihar. 2. The Regional Deputy Director of Education, Saharsa. 3. The District Superintendent of Education, Supaul. 4. The Area Education Officer, Pipara (Supaul). 5. The Accountant General, Bihar, Birchand Patel Marg, Patna. ----------- Respondents ----------- 7 15.09.2011 Heard learned counsel for the parties. Having regard to the fact that the impugned order in this case, passed by the District Superintendent of Education, Supaul as contained in letter no. 758 dated 16.9.2000, seeks to also take away the benefit of payment of salary for the period the petitioner had admittedly worked, this Court would find the impugned order bad to the aforementioned extent. It is not in doubt that the petitioner came to be appointed as Head Pandit on 23.2.1956, while his age was only fifteen years eight months and twelve days, his date of birth being 12.6.1940. The petitioner, as per the Government policy, could have continued in service for a period of 42 years of total service and accordingly, he had to retire on 28.2.1998 2 but, it appears that by virtue of his date of birth of 12.6.1940, he was allowed to continue in service till 5.5.1998 when the petitioner was directed to superannuate from service. There would be no difficulty in approving the part of the impugned order that the petitioner’s qualifying service for payment of his pension and other retirement benefit would be only from 23.2.1956 to 28.2.1998 and that all the retirement benefit of the petitioner would be paid only on the basis of the last salary drawn by the petitioner on 28.2.1998 but, then, the petitioner cannot be subjected to any recovery of amount of salary for the period 1.3.1998 to 5.5.1998. It is a settled principle of law that if a person is allowed to continue in service even after reaching his age of superannuation due to inadvertence or otherwise on the part of the respondents officials, he cannot be denied payment of salary of the aforesaid period unless it is proved that the same was on account of any fraud or deceit on the part of the employee concerned. Here no such case has been made out by the respondents in the counter 3 affidavit nor it has been held in the impugned order that the petitioner had overstayed in service by making any misrepresentation and/or fraud. In that view of the matter, the respondents are directed to refund the amount of salary deducted from the payable amount of the petitioner at the time of his retirement. In other words, if the respondents have deducted the amount of salary of the petitioner for the period March, 1998 to 5th May, 1998, the same must be refunded. It is, however, made clear that the petitioner’s all other retirement benefit would be paid on the basis of last salary drawn as on 28.2.1998. The impugned order contained in Annexure-6 would, therefore, stand modified to the extent indicated above. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)