JUDGMENT
Mridula Mishra, J.
1. Heard learned counsel for the petitioner and the counsel appearing for the respondents.
2. The petitioner has retired from the post of Headmaster on 31.3.2000. He is aggrieved by the order issued by the office of the Accountant General, Bihar, Patna contained in letter No. 10/20613 dated 8.2.2001 (Annexure-7) and letter No. 10/GPO/30616 dated 8.2.2001 (Annexure-8). By these two orders the Accountant General has fixed the pension and gratuity payable to the petitioner at a lower scale than the last pay drawn by him on the date of his retirement. It has also been directed that Rs. 56,831/- should be recovered from the pension of the petitioner, paid as excess salary to the petitioner during the period 1.1.1986 to the date of retirement of the i.e. 31.3.2000.
3. The petitioner was initially appointed as an Assistant Teacher on 13.4.1961 in the lower primary school, Barkiparhi. While working as an Assistant Teacher in the Upper Primary School, Nonar, Daudnagar he was promoted to the post of Headmaster with effect from 1.1.1975, and was posted at Middle School Chanda, Obra vide memo No. 5211-15/Aurangabad dated 27.8.1975. By this very order BA trained scale was granted to the petitioner from the date of his joining in the post of headmaster. The petitioner joined on the post of headmaster on 1.9.1975. On his joining the post of Headmaster the pay admissible to the post of headmaster was fixed at Rs. 970/- in the pay scale of Rs. 850-1360/- fixing the date of increment as 1.9.1982 by the order of Under Secretary to Government of Bihar dated 20.8.1985. Since the date of promotion of the petitioner as headmaster was 1.1.1975 on completion of ten years of service, the petitioner was granted first time bound promotion by order dated 9.9.1987 contained in memo No. 2193 issued by the District Superintendent of Education, Aurangabad pursuant to the decision of the District Education Establishment Committee dated 15.7.1987. Subsequently petitioner’s pay was revised with effect from 1.1.1986 and he was also granted senior scale with effect from 1.1.1987 on completion of 12 years of service, On 1.3.1989 the pay of the petitioner was fixed at Rs. 2575/- on account of the pay revision effective from 1.1.1997 and his pay was fixed at Rs. 10,250/- by the District Account Officer, Pay Fixation Section, Aurangabad. The petitioner retired on 31.3.2000 and at that time he was getting the basic pay of Rs. 11,000/-.
4. On retirement, the petitioner submitted his pension papers for fixation of the final pension. Till fixation of final pension provisional pension and gratuity was paid to the petitioner. AS per the pension papers submitted by the petitioner he was entitled to monthly pension of Rs. 5413/- on the basis of last pay drawn by him and the amount of gratuity payable to him was Rs. 2,48,655/-. The service book of the petitioner was retuned to DSE by the office of the Accountant General by letter No. Pen-10-PR-839-708 dated 22,8,2000 with an instruction that necessary action should be taken for the proper fixation of pay of the petitioner as the pay fixation was not done in accordance with law for the period 1.1.1986 onwards till his retirement. The petitioner was paid excess salary than the pay which was really admissible to him and he has drawn excess salary from 1.3.1989 till his retirement. The service book was retuned with a request to take necessary action and return the same to the Accountant General after necessary correction so that pension and gratuity could be authorised to the petitioner. The District Superintendent of Education by his letter dated 23.11.2000 replied the Accountant General, Bihar that the pay fixation of the petitioner was done correctly by the department. He was given first time bound promotion of BA Trained scale which was approved by the Commissioner, Magadh Division, Gaya. The District Superintendent of Education requested the Accountant General to verify the matter again and issue authority slip for payment of pension and gratuity. Thereafter without issuing any notice to the petitioner to show cause to justify his pay fixation, the Accountant General by the impugned letters contained in Annexures-7 and 8 fixed the pension and gratuity of the petitioner in the lower scale. The authority slip was issued for payment of gratuity of Rs. 2,33,393/- instead of Rs. 2,48,655/- and also it was directed to make adjustment of excess paid salary of Rs. 56,831/- from the commuted value of pension of the petitioner. The pension of the petitioner was fixed at Rs. 5088/-instead of 5413/-.
5. A counter-affidavit has been filed by the District Superintendent of Education, Aurangabad wherein it has been stated that the pension paper of the petitioner were sent to the Accountant Genera! along with his service book, which was retuned by the office of the Accountant General with an instruction that the pay fixation of the petitioner was not done in accordance with law. The then Superintendent of Education, Aurangabad thereafter requested the Accountant General, Bihar to verify the matter and if the case of excess payment was detected authority slip for payment of pension and gratuity was requested to be issued after making such adjustment. The Accountant General, Bihar has rightly directed to adjust the excess payment to the petitioner and has issued authority slip for pension and gratuity. Whatever amount has been recovered from the pensionary benefits of the petitioner it has been done by the Accountant General and the District Superintendent of Education is not at all responsible for this.
6. A counter-affidavit has also been filed by respondent No. 5 the Accountant General, Bihar. In the counter-affidavit it has been stated that the petitioner took over charge of headmaster on 1.9.1975 accordingly the first time bound promotion was admissible with effect from 1.9.1985 and senior scale for headmaster was admissible with effect from 1.9.1987 as per part 11 (ii) of Finance Department’s resolution No. 10770 dated 30.12,1981 and para 5 Human Resources Department Notification No. 28 dated 9.7.1993. The pay in senior scale for headmaster was to be fixed as per Rule 78 (a)(ii) of Bihar Service Code, Finance Department letter No. 1000 dated 20.2.1993 and part 12 (3) of Human Resources Department Notification No. PSR 28 dated 9.7.1973. The petitioner was given promotion for the first time bound scale with effect from 1.1.1985 and his pay was fixed at nest higher stage on senior scale for headmaster on 1.9.1987 hence excess payment of pay and allowances had been given to the petitioner from 1.1.1985 to 29.2.2000, The department was asked for adjustment of excess payment by the Accountant General and the District Superintendent of Education, Auranagabad vide its letter No. 1-1397 dated 23.11.2000 requested to re-check the case and if excess payment of pay and allowances arises then authority, slip may be issued on admissible pay with adjustment of excess amount paid. Accordingly the case was reviewed and calculation was made of the admissible pay and authority was issued with instruction to adjust the over paid amount. Reliance has been placed by respondent No. 5 in the case of Triloki Prasad Singh v. The State of Bihar and Ors., 1999 (2) BLJR 1514 wherein it has been held that the administrative order can be reviewed without there being any specific provision for the same. Since in the case of the petitioner payment was not in accordance with law, hence it was reviewed by the office of the Accountant General. There is no illegality in the order and the order is in accordance with law.
7. Counsel for the petitioner has submitted that the Accountant General while fixing the pension of the petitioner totally over looked the order contained in Annexure-1 i.e. memo No. 5211 dated 29.8.1975 by which the petitioner was promoted to the post of headmaster and was also given the BA trained scale. This letter clearly indicates that the petitioner was promoted as headmaster with retrospective effect from 1.1.1975, but BA trained scale was admissible to him from the date of his joining on the post of headmaster. Since he joined on the post of headmaster on 1.9.1975, the pay of BA trained scale was made admissible to him on 1.9.1975, but he was promoted on the post of headmaster on 1.1.1975, accordingly the first time bound promotion and second time bound promotion was given to him reckoning the date of his promotion on the post of headmaster as 1.1.1975. There was no illegality in his pay fixation and no excess amount was paid to him.
8. I find substance in the submission of the learned counsel for the petitioner, Since he was promoted on the post of headmaster on 1.1.1975 as such on completion of ten years of service, he was granted first time bound promotion in the pay scale of Rs. 940-1660/- with effect from 1.1.1986 and he was also granted senior scale with effect from 1.1.1987 on completion of 12 years of service. Accordingly his pay was fixed and subsequently after the pay revision it was fixed in the revised scale. The fixation of petitioner’s pay was rightly done and no excess amount was paid to the petitioner and the order contained in Annexures-7 and 8 fixing the pension and gratuity of the petitioner in the lower scale as well as adjustment of excess amount of Rs. 56,831/- towards excess payment of salary is fit to be quashed. The pension payment order as contained in Annexures- 7 and 8 is hereby quashed. The respondent No. 5 the Accountant General, Bihar is directed to re-fix the pension and gratuity of the petitioner and issue authority slip on the basis of revised fixation of pension and gratuity considering the last pay drawn by the petitioner. The excess amount which has been recovered from the commuted pension of the petitioner that may be refunded to the petitioner. The pension and gratuity payment order must be issued by the Accountant General, Bihar within one month from the date of production/communication of this order and the refund of the recovered amount should also be made to the petitioner within same period.
9. With these observations/direction, this application is allowed.