ORDER
S.J. Mukhopadhya, J.
1. The writ petition was preferred by petitioner Nareshwar Upadhyay (since deceased) for direction on the respondents to pay gratuity and rest of the 10% pension.
2. During the pendency of the writ petition, petitioner Nareshwar Upadhyay died, his widow Smt. Sushila Upadhyay was substituted in his place as the petitioner.
3. It appears that late Nareshwar Upadhyay was in the services of the Bihar State Electricity Board (B.S.E.B.) and retired on 31st July, 1999. After his retirement, he was paid 90% of the pension and other retiral benefits but the gratuity and 10% of the pension were not paid is absence of sanction order.
4. Mr. Mihir Jha appearing for the B.S.E.B. submitted that the pension of Late Nareshwar Upadhyay has been finalized vide Order dated 27th April, 2002 (Annexure-13). The Family Pension to which the petitioner widow is entitled has also been mentioned therein.
5. The Electrical Executive Engineer, Electric Supply Division, Chatra was paying 90% of the pension, now supposed to pay the rest of the arrears and Family Pension, as per the sanction order.
6. From the letter contained in Memo No. 1041, dated 29th April., 2002, it appears that the Financial Controller, B.S.E.B., Patna while accepted that a sum of Rs. 1,13,767.50 paise was payable to Late Nareshwar Upadhyay, retired Accountant towards D.C.R. Gratuity, but it has been ordered to recover a sum of Rs. 42,782.50 from such D.C.R. Gratuity on account of excess pay drawn by Late Upadhyay.
7. Mr. Jha submitted that Late Nareshwar Upadhyay having already granted a promotion, was not entitled for Time Bound promotion. However, during service period, he was wrongly granted Time Bound promotion by the Electrical Executive Engineer, Electric Supply Division, Chatra and, therefore, the excess amount so paid to him on account of such wrong Time bound promotion has been ordered to be recovered.
8. There is nothing on the record that Late Nareshwar Upadhyay was granted Time Bound promotion because of his wrong representation.
9. On the other hand, because of mis-interpretation of a Board’s Circular, Time Bound promotion was granted to Shri Nareshwar Upadhyay.
10. In this background, after retirement of Shri Nareshwar Upadhyay, it is not open to the respondents to recover any amount from the D.C.R. Gratuity, as per decision of the Supreme Court, as given in Sahib Rani’s case reported in 1995 Supp. (1) SCC 18.
11. For the reasons aforesaid, I set aside the part of the order contained in Memo No. 1041, dated 29th April, 2002, wherein the Finance Controller, B.S.E.B., Patna has directed to recover certain amount from the D.C.R. Gratuity of Late Nareshwar Upadhyay.
12. The Electrical Executive Engineer, Electric Supply Division, Chatra is directed to pay the widow-petitioner the arrears of pension and the full amount of gratuity (Rs. 1,13,677.50 ps.) to the petitioner within a period of two months from the date of receipt/production of copy of this order.
13. The Electrical Executive Engineer, Electric Supply Division, Chatra will also pay the arrears and current Family Pension within the aforesaid period of two months from the date of receipt/production of a copy of this order.
14. In case the admitted amount is not paid within the time stipulated above, the respondents will be liable to pay interest @ 5% from the date of death of the employee.
15. If the J.S.E.B. feel that certain amount is to be released by the B.S.E.B., they may raise the question at the time of apportionment of assets and liabilities.
16. The writ petition stands disposed of with the aforesaid observations and directions.