ORDER
Radha Mohan Prasad, J.
1. In this writ petition, the prayer is to direct, the respondents-authorities to make immediate, arrangement for payment of pension, gratuity, leave encashment: and arrear of difference of pay with all consequential benefits.
2. The petitioner retired from service of the State Government on 30th June, 1997 while posted as Headmaster, Rajkiya Middle School, Khanpur Pakri, Zandaha in the district of Vaishali. When he was not paid his full gratuity, 10% of pension and the amount of leave encashment, he filed the present writ petition seeking appropriate direction.
3. Earlier a counter-affidavit was filed on behalf of the District Education Officer, Vaishali at Hajipur (respondent No. 3). The said counter-affidavit was sworn by the District Superintendent of Education, who this Court is informed by the learned Standing Counsel, is the concerned officer. In the said counter-affidavit it has been stated that most of the demands of the petitioner have been fulfilled and sanction order has already been sent and other things which relate to the office of the deponent have been fulfilled. However, the sanction orders for payment of pension and gratuity were not issued. Thus, on consideration of the vague statement and the fact that the sanction orders were not issued, the matter was adjourned for today to enable the respondents to bring on record with respect to the payments made and those which are still due. Pursuant to it, a supplementary counter-affidavit was filed yesterday on behalf of the District Superintendent of Education, Vaishali at Hajipur, till when the sanction order was not issued. The matter was again adjourned for today.
4. However, learned Standing Counsel No. III appearing for the respondents has produced a copy of the sanction order issued by the District Superintendent of Education, Vaishali with respect to pension and gratuity. In the said order it has been mentioned that the petitioner drew excess salary by way of increments though he had not passed the Hindi Noting and Drafting Examination. As such, a request has been made to the Accountant General for making recovery of the said alleged excess amount. The petitioner continuously drew the said increments from 1.3.1986 till his retirement and no objection was ever raised by any authority. It is not even alleged against the petitioner that the drew salary by commission of any fraud or misrepresentation. No finding is recorded against him that he committed any fraud or misrepresentation.
5. In view of the law settled by the Apex Court in the case of Sahib Ram v. State of Haryana, reported in 1995 Supp (1) SCC 18, unless such finding is recorded, the recovery of alleged excess amount is not permissible.
6. Yesterday when the District Superintendent of Education appeared personally before this Court the was apprised of the said legal position. Despite of it, the District Superintendent of Education has, issued sanction order in which direction has been given for recovery of alleged excess amount. This, in my opinion, clearly shows the attitude of the District Superintendent of Education to unnecessarily harass the petitioner. There is no other explanation given for causing delay of almost three years in releasing the full pension by the District Superintendent of Education. Even assuming anything was to be recovered as per his understanding of law, the sanction order ought to have been issued mid handed over to the petitioner on the date of his retirement in the light of the general instruction of the Government, but that has not been done by him which clearly shows his mala fide attitude to harass the petitioner.
7. Under such circumstances, this Court finds it to be a lit case for awarding penal interest and cost to be recovered from, the District Superintendent of Education, Vaishali.
8. In the facts and circumstances aforementioned, the petitioner is held to be entitled for penal interest on the said remaining amount of pension and gratuity at the rate of 10% per annum from due date till the said sanction order has been issued, besides cost of Rs. 2,000/- (two thousand). The amount of interest must be calculated and paid along with the amount of cost by issuing fresh sanction order within one week of the issuance of authority slip by the Accountant. General, fixing the remaining amount of pension and gratuity without making the recovery pursuant to the sanction order.
9. The photo copy of the sanction order produced today is being handed over to Mr. Sanjay Singh, learned Additional Standing Counsel appearing for the Accountant General for compliance of this order.
10. The writ application is, accordingly, disposed of.