S.J. Mukhopadhaya, J. - (1.) THIS application has been preferred by petitioner against the order issued by the Accountant General (A and E) II, Bihar, Patna as contained in letter No. Pen 811 -4502 dated 17th May, 2001, whereby and where under the pension of petitioner has been fixed at a lower stage of Rs. 8,650/ - instead of Rs. 9,000/ - which was the last pay drawn by him; the consequential order issued by the commandant, Home Guard, Bihar, Patna is also under challenge. The authority rejected the claim of petitioner and held that the pension fixed by the Accountant General, at Rs. 8,650/ -is correct and the pension and gratuity has been correctly fixed by the Accountant General, Bihar, Patna.
(2.) IT appears that the petitioner moved before this Court for proper fixation of pension and gratuity in WP (S) No. 5206/2001. In the said case a counter -affidavit was filed on behalf of the Accountant General, Bihar and Jharkhand with the stand that last pay of the petitioner was shown as Rs. 8,650/ - but the provisional pension was wrongly fixed on the basis of Rs, 9,000/ -. For the said reason a sum of Rs. 65130.26 paise was paid to petitioner in excess which has been ordered to be recovered from pension. The case was remitted to respondents vide order dated 23rd April, 2002 to decide the matter. The counsel for the petitioner relied on a judgment of the Supreme Court of India in the case of "Sahib Ram v. The State of Haryana and Ors.," reported in . It was submitted that even if any, amount paid in excess the respondents cannot deduct such amount from pension as there was no misrepresentation on the part of the petitioner.
(3.) IN the present case, the respondents have not disputed the fact that the petitioner drawn Rs. 9,000/ - per month as the last pay. The only plea taken by respondents is that the petitioner wrongly withdrawn the excess amount.;