IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4094 of 2011 1. Ganesh Prasad Karn S/O Late Srikant Prasad Karn R/O B.B. Ganj, Near National Highway Bhagwanpur, P.S.- Sadar, Distt.- Muzaffarpur--------------------------------Petitioner Versus 1. The State Of Bihar Through Commissioner-Cum-Secretary Department Of Food Supply & Commerce, Government Of Bihar, Patna 2. The Commissioner Cum Principal Secretary Department Of Food Supply And Commerce, Govt. Of Bihar, Patna 3. Under Secretary, Food Supply & Commerce, Government Of Bihar, Patna 4. Deputy Secretary, Food Supply & Commerce, Government Of Bihar, Patna 5. Sub-Divisional Officer, East Muzaffarpur, Bihar 6. The Accountant General, Bihar, Patna------------Respondents ---------------------------------- For the Petitioner: Dr. K. N. Singh, Advocate & Dr. K.D. Sharma, Advocate For the Respondents: Mr. Ravindra Kr. Choubey, Advocate. ---------------------- 2 30.8.2011 Petitioner is a retired employee of the Department of Food, Supply & Commerce, Government of Bihar. He superannuated from service on 31.7.2002 as a Marketing Officer and was holding charge of the post of District Supply Officer in the district of Muzaffarpur. According to him he was drawing Rs. 10,500/- per month at the time of superannuation. He had got time bound promotion and increments. But when it came down to fixation of his pension the respondents gave him the pay scale of Rs. 9100+313 (RPP) on the basis of the calculation made in terms of annexure-6. Since this amount was less in the eye of petitioner, he not only protested but even chose to file a writ application. The said writ application was heard and disposed of in terms of annexure-8. The Court allowed the petitioner to file a detailed representation and even gave him an opportunity of hearing by approaching the Principal Secretary of the Department. The speaking order which has now been 2 passed by the Principal secretary contained in annexure-14 to the writ application is the subject matter of challenge in the present writ application. Since the Principal Secretary has rejected the claim of the petitioner, he wants quashing of annexure-14. The first attack which the petitioner makes on the speaking order is that the Principal Secretary did not appreciate the fact in right prospective. The petitioner as a matter of right is required to get pension on the basis of last pay drawn and since the petitioner was drawing Rs. 10500/- as his salary, the same cannot be reduced now. According to him if the respondents are allowed to reduce his pay scale he losses the benefit he had got by virtue of two time bound promotions given to him. There is no occasion even otherwise for the respondents to fix or re-fix the pay scale of the petitioner after he superannuates. The Court has gone through the detailed speaking order passed by the Principal Secretary. To be fair enough to the Principal Secretary a well considered and detailed order has been passed by him placing the service history of the petitioner and the pay scale to which he could be entitled to in terms of various notifications issued by the Finance Department. Even the calculations with regard to pay scale which he could draw after 1.1.1996 have been clearly indicated from paragraph 3 onwards of the speaking order. No error as such has been pointed out in this calculation during the course of argument by the petitioner. It can never be the case of the petitioner that the entitlement of the petitioner by way of replacement pay scale on 3 1.1.96 would be on the basis of benefit of time bound pay scale as replacement scale in the pay revision is always fixed on the basic pay scale and not on the basis of what the person was drawing including the benefit of time bound promotion. If the petitioner has managed to get higher pay scale for unexplained reason while being posted in the field then the respondents’ authority including the Accountant General have obligation to go through the service records of every employee and certify as to the correctness of the pay scale to which, an employee is entitled to at the time of his superannuation and fixation of his pension. As it is widely known that service records of such employees specially posted in field are made available to the headquarters and to the office of the Accountant General only at or after retirement of an employee. The exercise to fix pension on the correct pay scale will have to be carried out at that given time frame and merely because the petitioner has retired in the meanwhile it does not mean that pension will be mechanically fixed without verifying or scrutinising the correctness of pay scale which the employee may have been drawing. In the opinion of the Court there is no legal bar in such exercise merely because an employee has superannuated. Effort was made by learned Senior counsel representing the petitioner that if the respondents are allowed to re-fix the pay scale by taking away the benefit of first and second time bound promotion, then he looses out some vital component to which he was drawing which cannot be permitted to be done now. There is difficulty in accepting such a submission on the 4 face of it in absence of any other authority on the settled proposition that replacement scales are always based on basic pay scale and it never is reworked on the basis of the pay being drawn by an employee because of the time bound promotion. For that he has pay protection which has been given to him as (RPP) or reduced pay protection. The Court has gone through the details of the working of the pay scale of the petitioner in the speaking order of the Principal Secretary and the Principal Secretary has rightly recalculated and affirmed the removal of aberration which was earlier done in terms of annexure-6 when authorization for payment of pension was being made in favour of the petitioner. Merely because the petitioner in due course managed to draw higher salary while being posted in the field which went unnoticed, it does not mean that he will be permitted to stick to claim for such a benefit even though the factual position is otherwise and the law and rule does not permit so. Counter affidavit filed on behalf of the respondents State reiterated the position and the finding given by the Principal Secretary contained in annexure-14 by bringing those notifications based on which the element of the pay scale given to such person has been given from time to time. An employee is only entitled to pay scale which has been authorized and notified by the State Government. Errors and omissions committed by itself does not give right to an employee to hang on to a benefit to which he is not entitled to. Though counsel for the petitioner tries to rely on Bench decisions which have been rendered by High Court reported in 2010 (4) PLJR 852 (Akhilanand 5 Upadhyay vs. The State of Bihar & ors.), 2006 (1) PLJR 476 (State of Bihar & ors. Vs. Ram Tawakya Singh & Ors) as well as AIR 2006 SC 3328 (Surendra Singh Gaur vs. State of M.P. & Ors.) but none of those decisions with due respect to learned counsel for the petitioner have applicability to the facts of the present case. Annexure-14 has been passed by the Principal Secretary with due application of mind and taking into consideration the various circulars issued by the Finance Department as well as the notification made on the basis of the recommendation made by the 6th Pay Revision Committee which came into force from 1.1.1996 and no amount of legal jugglery will beget him the benefit which the petitioner is looking for. With no serious infirmity having been found with the reasoning given in annexure-14, the decision rendered in the speaking order in terms of earlier direction of the High Court, does not require any interference. This writ application has no merit and it is dismissed. RPS ( Ajay Kumar Tripathi, J.)