KRISHNA DEO PRASAD v. THE STATE OF BIHAR

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2916 of 2009 KRISHNA DEO PRASAD, Son of Late Bindhyachal Prasad, Resident of Mohalla-20, M.I.G., Lohiya Nagar, Kankarbag Colony, Patna-20 ……………………… Petitioner Versus

THE STATE OF BIHAR 2. The Secretary, Building Construction Department, Government of Bihar, Patna.

Finance Secretary, Govt. of Bihar, Patna.

The Under Secretary, Building Construction Department, Government of Bihar, Patna.

Treasury Officer, Vishveshwariya Bhawan, Secretary, Patna.

The District Provident Fund Officer, Patna.

The Accountant General, Bihar, Birchand Patel Path, Patna.

Engineer in Chief, Building Const. Dept. Bihar, Patna. ………………………. Respondents. ----------- 3

13.05.2009 Heard counsel for the petitioner and counsel for the State. Reference may be made to the order of this Court dated 5.3.2009. The grievance of the petitioner in nutshell is that when he was paid his salary at the time of retirement in the higher scale, he could not have been subsequently after his retirement subjected to reduction and re- fixation of his salary in a lower scale of pay on the ground of earlier incorrect pay fixation which in turn has also the effect of lowering the amount of monthly pension. Counsel for the petitioner in this regard would submit that the petitioner had 2 already been promoted in the pay scale of the Head Typist of Rs. 5,000/- to 8,000/- and therefore, the respondents had no business to refix the salary of the petitioner after his retirement as has been done in the present case and sought to be approved by the impugned order dated 31.12.2007 as contained in Annexure-4.

Counsel would also submit that in any event, the decision to recover the amount of Rs. 49,640/- is patently illegal because it was not misappropriation fraudulent misrepresentation by the petitioner under which he had received such higher amount of salary. In the opinion of this Court there is a lot of misconception in the minds of the authorities of the State Government and consequently also in the mind of the employees, that the pension has to be fixed and paid at a scale of half of the last salary drawn, irrespective of the fact that whether such last pay was drawn in the eligible and entitled scale of pay by the concerned retiring employee. The Government infact at the time of fixation of final pension of a retiring employee is entitled to look into the service record for finding out the correct fixation of 3 pay scales by the different subordinate authorities empowered to act as Drawing and Disbursing Officer exercising appointing/ promoting authority.

In each of such cases where a Class-III employees has been placed in higher scale of pay by giving a promotion or by way of pay fixation to which he was not entitled, the same would not be binding on the State Government for calculation and payment of pension. Here in this case, despite repeated indulgence given to the petitioner he has not produced any order of promotion on the post of Head Typist. His contention however is that he was given pay fixation on the post of Head Typist by way of implementation of the report of the Pay Revision Committee that has been found to be incorrect and illegal and this is how salary has been sought to be reduced which is also recorded in the service book. This Court could also, not find that the petitioner was actually entitled for grant of promotion on the post of Head Typist as no such order granting promotion was issued in favour of the petitioner. In that view of the matter, the counsel 4 for the petitioner would submit that he would be satisfied if the pay fixation of the petitioner is examined by the office of the Accountant General in process of the fixation and that the petitioner will have no grievance if the conclusion arrived in the impugned order passed earlier in this regard is reiterated in course of such pay fixation by the office of the Accountant General.

This Court, considering that the petitioner is a retired employee and there is lot of misconception regarding his promotion and fixation of pay, would give one indulgence to the petitioner to place his full case before the office of the Accountant General, which shall examine fixation of different pay scales to the petitioner strictly in terms of the decision of the Pay Revision Committee and if it is found by the Accountant General that the earlier Pay Fixation made by the authorities of the Department needs a revision, the same will be communicated with the reasons to the concerned Secretary of the Department, who will thereafter pass necessary final order. If however, the office of the Accountant General would not find any reason for such interference 5 in the pay fixation of the petitioner as done in the impugned order, same will be the end of the matter, and his final pay fixation would remain the same as in the present impugned order.

In the process of examining the case of the petitioner, the Accountant General on receipt of representation to be filed by the petitioner necessary document/further information from the concerned authorities of the State Government and/or the petitioner and the same would be made available to the Accountant General This Court however, would find that the impugned order seeking to make recovery of a sum of Rs. 49,640/- is simply not permissible, in view of the fact that the petitioner had never misrepresented his case as with regard to grant of higher pay or pay fixation in the higher scale which was done under the orders of the competent controlling authority vested with power of Drawing and Disbursing Officer. In that view of the matter, the respondents are restrained from making any recovery of the aforementioned sum of Rs. 49,640/- but it is made clear that the pension 6 of the petitioner shall still be made on the basis of legally admissible last salary to be drawn by the petitioner on the date of his retirement on 30.6.2000. With the aforementioned observations and directions this writ application is