R.K.MERATHIA, J. - (1.) PETITIONER has prayed for quashing the letter No, 1697 dated 3.6.2004 (Annexure -3) passed by the respondent No. 2 fixing the pension of the petitioner on the basis of Rs. 9670/ - as last pay drawn instead of Rs. 10120/ -.
(2.) PETITIONER 's case is that he retired on 31.10.2000 as Accounts Assistant. He moved this Court, vide WP (S) No. 2298/03, for fixation of his pension on the basis of last pay drawn by him, which was disposed of on 25.9.2003 with a liberty to him to approach respondent No. 2 who, in turn, would enquire into the matter and determine as to whether pension of the petitioner was properly fixed, taking into consideration the last pay drawn by him or not (Annexure -1). He accordingly made representation. Petitioner's claim has been rejected by the impugned order dated 6.3.2004 (Annexure -3). Learned counsel for the petitioner relied on the cases of Arjun Prasad Yadav v. State, 2003 (4) JCR 682 and Narayan Singh v. State, 2004 (1) JCR 324, and submitted that this Court has directed for fixation of pension and gratuity on the basis of the last pay drawn even if the same was wrongly fixed. Learned counsel for the respondents submitted that pursuant to the said order dated 25.9.2003 passed by this Court (Annexure -1), enquiry was made by the Audit Department, wherein it was found that on 27.5.1975, petitioner was given Senior Selection Grade and from 1.4.1976, his post was converted into accountant Assistant in the same pay scale. Thus he was given the benefit of pay fixation in Senior Selection Grade. As per the Board's Standing Order No. 515 dated 7.5.1976 and Standing Order No. 125 dated 7.5.1983, if the pay scale in the Selection Grade and on promotion is same, then the pay fixation cannot be made twice in the same pay scale, but this benefit was wrongly given to the petitioner at the time of conversion of. his post and he was paid accordingly and thus, the last pay certificate reflected incorrect amount. After consideration, it was found by the Pay Fixation Committee that the petitioner's correct pay was Rs. 9670/ -when he retired. Learned counsel for the respondents relied on the judgment of Division Bench in the case of State of Jharkhand v. Smt. Girish Kumari Prasad , 2004 (2) JLJR 426 : 2004 (2) 524 (Jhr). He referred to paragraphs No. 5 and 6 (JCR Page 526) which reads as follows : - - '5. That apart, we find that when the matter finally reaches the Accountant General and it is found that some one had been given some thing that is not due, either because of negligence, collusion or fraud, it is the duty of the Accountant General, being the guardian of the finances of the State, to rectify the mistake committed either by omission or by commission by some one in the department. There cannot be any estoppel against seeking to recover an unauthorized paymient made to an undeserving person. The fact that some one had made an error in giving a time bound promotion to the writ petitioner when it was not due, could hot clothe her with any special right. The rule applicable has to be universally applied. On this basis also, we are not inclined to agree with the decision of the learned Single Judge. 6. Learned counsel for the writ petitioner -respondent argued that there were persons also who were illegally enjoying such benefits and steps have not been taken for rectifying the situation by recovering the excess amounts paid to them. Learned counsel for the appellants submits that the matter will be looked into and steps will be taken in the case of others where benefits have been given illegally. In this situation, we direct the appellants to take steps for recovery of the amounts from the other persons. if any, who are similarly situated as the writ petitioner and who had been paid undeservedly.' He further referred to paragraph 5 of (1995) Supple. 1 SCC 18, Sahib Ram v. State of Haryana, Which reads as follows : - - '5. Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs.'
(3.) LEARNED counsel for the respondents submitted that in view of the Division Bench judgment in the case of Smt. Girish Kumari Prasad 2004 (2) JCR 524 (Jhr), which was rendered after the said judgments of Arjun Prasad Yadav and Narayan Singh (supra), no relief can be granted to the petitioner.;