ORDER
Amareshwar Sahay, J.
1. Heard the parties.
2. The petitioner a Sub-Inspector of Police superannuated on 31.12.1999 while he was posted at Bokaro. It is stated that till the date of superannuation he was getting the monthly salary in the basic pay scale of Rs. 7,600/- and he was getting a total sum of Rs. 11,182-00/- per month. It is further stated that vide Memo No. 1760, dated 21.10.2000 (Annexure-4), the petitioner's provisional pension, provisional gratuity and other retiral benefits were revised to a sum of Rs. 3318/- with effect from 1.1.2000. The said fixation of pension was made considering the basic pay of the petitioner at Rs. 7425/-.
3. The petitioner filed a writ petition before this Court bearing CWJC No. 2692 of 2000 (R) which was disposed of on 13.2.2001 as contained in Annexure-5, remitting the matter back to the respondents directing the petitioner to move before the Superintendent of Police, Bokaro, regarding his grievance relating to fixation of pension and payment of other benefits. The Superintendent of Police, Bokaro, was directed to pass a reasoned order and ensure the payment of pension, gratuity, leave encashment, provident fund and group insurance in the revised scale of pay taking into consideration the last pay drawn by the petitioner.
4. It is stated that 'by issuance of Memo No. 515, dated 26.3.2001, as contained in Annexure-6, it was said that since the petitioner had not passed the Hindi Noting and Drafting Examination and, therefore, a sum of Rs. 71,859/- was deducted from his gratuity amount as the said amount was paid in excess on account of providing one more increment. Thereafter, by issue of an order contained in Memo No. 40, dated 12.1.2002 (Annexure-7), the District Order No. 3209/2000 was rectified, mentioning therein that on re-calculation it was found that a sum of Rs. 71,859/- was wrongly calculated and deducted, in fact a sum of Rs. 34821/- only should have been deducted, which was found to be paid to the petitioner in excess.
5. Subsequently, the District Order No. 2613/2000, dated 20.8.2000 (Annexure-8) was issued whereby the pension of the petitioner was fixed at Rs. 7425/after reducing the same from Rs. 7,600/-, since the petitioner had not passed the Hindi Noting and Drafting Examination. The petitioner has challenged the aforesaid tow orders as contained in Annexures-7 and 8 to the present writ application.
The prayer of the petitioner, in this writ application, is to quash the aforesaid two orders contained in Annexures-7 and 8 and to direct the respondents to fix the pension of the petitioner on the basis of the basic pay last drawn by him at Rs. 7,600/-. According to the petitioner, he passed the Hindi Noting and Drafting Examination in the year 1993.
6. The learned counsel for the petitioner has submitted that the recovery of so called excess amount paid to the petitioner from his pensionery benefit is absolutely illegal and unjustified and the same could not have been done in view of the decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp. (1) SCC 18, and the decisions of Patna High Court in the case of Ganesh Prasad v. State of Bihar and Ors., reported in 2000 (1) PUR 623, and followed by this Court in the case of Arjun Prasad Yadav v. State of Jharkhand and Ors., reported in 2002 (2) JCR 444 (Jhr.).
7. On the other hand on behalf of the State of Jharkhand it has been stated that the petitioner was promoted to the post of Assistant Sub-Inspector on 29.5.1980 and within one year of his promotion it was incumbent upon him to pass Hindi Noting and Drafting Examination in order to avail increment of salary but as it appears from his service records, the petitioner passed the said Hindi Noting and Drafting Examination only on 20th December, 1993 and as such it was found that he was wrongly withdrawing/given the increment of salary in between the period from 1981 to 1993. Therefore, a sum of Rs. 34881/- was rightly deducted, which was drawn by the petitioner in excess.
8. It is further started on behalf of the respondent State that a letter has been issued by the Personnel, Administrative Reforms and Rajbhasa Department, Government of Jharkhand, in which it has been stated that in the light of Article 309 of the Constitution of India a Notification was issued by the Government of Bihar, Patna, vide Notification No. 361/Ra, dated 15th June, 1968, wherein it was clearly stated that those Government servants/employees who have to draft Hindi Noting and Drafting must have to pass Hindi Noting and Drafting Examination within one year, failing which their increment will be held up and the services will not be confirmed as per Rule 2 of Bihar Government Servant (Hindi Examination) Rules, 1968. It is submitted that since the petitioner did not pass the aforesaid Hindi Noting and Drafting Examination within one year and, therefore, he was not entitled to the increment, which was given to him illegally.
9. On behalf of the Accountant General, Bihar and Jharkhand it has been stated by filing counter affidavit that the Office of the Accountant General received a letter from the Superintendent of Police, Bokaro, wherein it was mentioned that the petitioner is entitled to a basic pay @ of Rs. 7425/- which was admissible on 1.6.1999 and accordingly, the authorities for payment of pension etc. have been issued.
10. The learned counsel for the petitioner contended that in view of the decision of Patna High Court in the case of Ganesh Prasad, (supra) and followed by this Court in the case of Arjun Prasad Yadav, (supra) pension/gratuity cannot be curtailed or withheld on the ground of non passing of requisite department examination and no amount towards increment can be deducted from the pension and, therefore, the orders as contained in Annexures-7 and 8 to the writ petition and liable to be quashed and the pension of the petitioner has to be fixed on the basis of the last pay drawn by him.
11. On the other hand it has been contended on behalf of the respondents that the petitioner was promoted to the post of Assistant Sub-Inspector in the year 1980 with a condition that he has to pass the Hindi Noting and Drafting Examination within one year but the petitioner passed the Hindi Noting and Drafting Examination, only in the year 1993 and, therefore, the amount of increment paid to the petitioner in between the period from 1981 to 1993 was wrongly paid to him and, therefore, the said amount of Rs. 34881/which was paid in excess to the petitioner by way of increment was rightly deducted and as such there was no illegality in it.
12. It was further contended on behalf of the respondents that as per the Bihar Government Servant (Hindi Examination) rule, 1968 which was applicable in the case of the petitioner, it was mandatory for him to pass Hindi Noting and Drafting Examination for entitlement of the increment, because under the aforesaid regulation of 1968 such Government Servants, who have to pass the Hindi Reading and Writing Examination in Devnagri script or Hindi Noting and Drafting Examination in Devnagri script or both the Examinations, shall neither be given any increment nor be confirmed nor should they be allowed to cross the efficiency bar till such time as they pass the required Hindi Examination or Examinations.
13. In the present case there is no dispute of the fact that the petitioner was allowed and he was drawing the increment since 1981 though he had not passed the Hindi Noting and Drafting Examination, which was required under the aforesaid regulation of 1968. It is admitted that the petitioner passed the aforesaid examination only in the year 1993. It may be that the petitioner was given the increment not on his misrepresentation or collusion. It may be that the respondent-State might have given the said benefit of increment to the petitioner because of negligence or by mistake.
14. The Division Bench of this Court in LPA No. 256/2003, State of Jharkhand and Ors. v. Smt. Girish Kumari Prasad, disposed of on 9.3.2004, has held that the Accountant General being the guardian of the finance of the State can very well rectify the mistake committed either by omission or commission by someone in the Department.
15. Considering the facts and submission made on behalf of the respective parties, I am of the view that the pension of the petitioner has to be fixed on the basis of the fact that on the date of superannuation, what was the scale of pay to which the petitioner was entitled to and not on the basis of the scale of pay which was actually being drawn by the petitioner. If it is found that the salary which the petitioner was drawing on the date of superannuation, to which he was not entitled to the said scale then the petitioner cannot claim as a matter of right that his pension has to be fixed on the basis of the salary drawn by him on the date of his superannuation.
16. From Annexure-8 the District Order No. 2613/2000 it appears that earlier the pension of the petitioner was fixed on miscalculation, which was subsequently rectified after taking into consideration of the fact- that the petitioner passed the Hindi Noting and Drafting Examination in the year 1993.
17. In may view the rectification of mistake in calculation was correct and fully justified and the pension of the petitioner has rightly been fixed taking into his salary at the rate of Rs. 7425/- per month, which the petitioner was entitled to receive the same on the date of his superannuation.
18. Therefore, the claim of the petitioner that his pension has to be fixed on the basis of the last pay drawn by him on the date of his superannuation at Rs. 7,600/- per month cannot be said to be justified and hence rejected.
19. So far as the recovery of amount of Rs. 34,881/- which is said to have already been paid to the petitioner in excess, relying on the decision of the Supreme Court in the case of Sahib Ram v. State of Haryana and Ors., reported in 1995 Supp (1) SCC 18, in my view, the respondents were not justified in deducting the said amount from the retiral benefit of the petitioner. The respondents are directed to refund the amount of Rs. 34,881/- to the petitioner, if already deducted.
20. With the above observations and directions this application is disposed of.