Judgment:
Amareshwar Sahay, J.
1. Heard the counsel for the parties.
2. The petitioner moved this Court earlier in W.P.(S) No. 2730 of 2004 making his grievance that his pension was wrongly fixed in the pay scale of Rs. 4,000 - 6,000 in place of Rs. 5,000 - 8,000.
The said Writ petition was disposed of by directing the Deputy Commissioner to pass an appropriate order within two months in accordance with law regarding fixation of pension of the petitioner, which was pending before him since 2001.
3. Pursuant to the aforesaid directions, the Deputy Commissioner has passed the impugned order on 14.09.2004, as contained in Annexure-8, whereby, the claim of the petitioner for fixing his pension in the scale of Rs. 5,000 - 8,000 has been allowed w.e.f. 01.02.2000 and not w.e.f. 01.01.1996, as claimed by the petitioner.
4. The petitioner has challenged the said Order dated 14.09.2004, as contained in Annexure-8, passed by the Deputy Commissioner, in this writ petition claiming the aforesaid fixation of pay w.e.f. 01.01.1996 on various grounds, mainly relying on the Resolution of the State Government dated 18.12.1989, contained in Annexure-3 to the writ petition. The petitioner has retired from the service on 30th September, 2001.
5. A counter affidavit has been filed on behalf of the respondents where, in paragraph-4, it has been stated that subsequent to the Resolution dated 18.12.1989, the State Government took further Resolution on 13th February, 1999, which was published externally in Bihar Gazette wherein, the pay of the Government employees were revised and as per the said Resolution, the claim of the petitioner for fixation of the pay scale in the pay scale of Rs. 5,000 - 8,000, with effect from 01.01.1996, was not found to be tenable and he was found to entitled to the said pay scale of Rs. 5,000 - 8,000 w.e.f. 01.02.2000.
6. Mr. A.K. Sahani, learned Counsel for the petitioner lastly submitted that the petitioner made a grievance that since the petitioner was given benefits of Rs. 5,000 - 8,000 from 01.02.2000 and, therefore, at least the pension of the petitioner has to be revised treating his last pay in the scale of Rs. 5,000 - 8,000.
7. Considering the rival submissions made by the parties as well as the two resolutions of the State Government i.e. one of 18.12.1989 and the other of 13.02.1999, which has been produced before me at the time of arguments, I find that the subsequent resolution of 13.02.1999 has overriding effect on the earlier notification of 1989 and as such, the petitioner has rightly been given the benefits of fixation of pay as per the resolution dated 13.02.1999.
8. So far as revision of pension of the petitioner is concerned, since his scale of pay has been refixed in the scale of Rs. 5,000 - Rs. 8,000 w.e.f. 01.02.2000 and, therefore, the petitioner is certainly entitled for refixation of pension in the revised scale as per the order dated 14.09.2004, contained in Annexure-8. In this view of the matter, the respondents are directed to revise his pension accordingly.
9. Now coming to the point of adjustment/ recovery of the excess amount from the retrial dues on account of wrong fixation of pay, the law has now been well settled by this Court that from the retrial dues of a pensioner, no amount can be recovered on the ground that he was paid in excess to what he was entitled to unless it is established that the excess payment was made to the Government servant either on his misrepresentation or that the payment was made because of an act of fraud played by the petitioner.
Accordingly, the respondents are given liberty to pass a fresh order in that regard keeping in mind the observations and directions by this Court in this case and in various other decisions.
10. With the aforesaid observations and directions, this writ petition stands disposed of.