IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3901 of 2009 DEVI PRASAD, S/o Khargu Rajak, resident of village- Brahampur, P.O. & P.S.- Phulwari Sharif, District-Patna. ….Petitioner Versus 1. The Union of India through the Secretary-cum-Chairman, Central Board of Direct Taxes, New Delhi. 2. The Chief Commissioner of Income Tax, Patna. 3. The Additional Commissioner Head Quarter, Income Tax, Patna. 4. The Principal Chief Controller of Accounts, CGDT, Zonal Accounts Office, Patna. 5. The Zonal Accounts Officer, O/o Pr. Chief Controller of Accounts, CGDT, Zonal Accounts Officer, Patna. 6. The I.T.O.-cum-Head of the Office, Ward no.1, Ara. ….Respondents ----------- For the petitioner : Mr. Jayant Kumar Karn, Advocate. For the respondents : Mr. Sudhir Singh, Asst. S. G. of India with Mr. Sarvdeo Singh, Advocate. ------------ 5/ 11.08.2009 Heard learned counsel for the petitioner and learned counsel for the Union of India. The petitioner is aggrieved by only a part of the order under challenge dated 12.10.2007 passed in O.A. No.324 of 2006, whereby Central Administrative Tribunal, Patna Bench, Patna, has rejected the petitioner’s prayer to set aside the action of the respondent in putting him in a lesser pay scale for the purpose of calculating his pensionary benefits. While denying such claim of the petitioner, the Tribunal has, of course, held that it will not be open to the respondents to recover any money paid to the petitioner. On behalf of the petitioner, it has been submitted on the - 2 - basis of the orders contained in Annexure-3 dated 11th September, 1991, and Annexure-7 dated 21st September, 1982, that earlier the petitioner was left out of consideration for ad-hoc promotion while the same was granted to some of his juniors on an error in the official records showing him to be a non-matric but on representation filed by the petitioner such error was corrected by a corrigendum issued on 21st September, 1982 (Annexure-7) and as a result in the gradation list as on 1.6.1981 he was ordered and shown as Matric. It has further been submitted that in 1984 some juniors were granted regular promotion to the higher scale and hence, on further representation made by the petitioner, who had also been given such promotion, the anamoly in the pay scale, which had cropped up on account of ad-hoc promotion to the juniors, were corrected and the petitioner was also given the same pay scale as the juniors vide order dated 11th September, 1991, (Annexure-3). As a result, ultimately, along with his juniors the petitioner continued to get the revised pay scale and he superannuated in the year 2005 in the basic pay of Rs.4800/-, but instead of determining his pensionary benefits on that pay, the respondents reduced the pay scale of the petitioner after his retirement and determined his pensionary benefits by treating his basic pay at the time of superannuation as Rs.4500/-. From the impugned order of the Tribunal, it appears that the respondents justified their stand and action only on the plea that at the time when the petitioner’s juniors were promoted on ad-hoc basis the petitioner was a non-matric and, therefore, although regular - 3 - promotions were given with effect from 4.9.84, juniors of the petitioner were found to be entitled to higher pay scale on account of their ad-hoc promotion made earlier. There is no denial that upon representation of the petitioner Annexure-7 was issued in the year 1982 to correct the entry in the gradation list which showed the petitioner to be non-matric. In that view of the matter, he could not be put in disadvantage vis-à-vis his juniors at the time of regular promotion in the year 1984. Whatever the benefits juniors might have derived from the post on account of ad- hoc promotion can not or could not be made basis for giving them permanent advantage over the petitioner, who was senior to them. The disadvantage of being put in a lower pay scale although being senior was without any fault of the petitioner and his juniors can not be given such advantage of higher pay scale leaving out the petitioner without any good reasons. In the aforesaid facts and circumstances, in our view, the Tribunal should have allowed the other relief also to the petitioner. Reduction in his basic pay on account of alleged irregularity, after fifteen years, can not be justified either on facts or in law. Hence, we hold that the respondents were not justified in reducing the basic pay of the petitioner from Rs.4800/- to Rs.4500/- after his superannuation. Such action is, therefore, set aside. The respondents are directed to re- determine the pensionary benefits of the petitioner by accepting that he rightly superannuated in the basic pay of Rs.4800/-. The retiral benefits on that basis should be calculated and made available to the - 4 - petitioner without any delay, preferably within three months. The writ petition is allowed. JA/- (Shiva Kirti Singh, ACJ) (Anjana Prakash, J.)