Radha Mohan Prasad, J.:— In this writ petition the petitioner is aggrieved by the Pension Payment Order, contained in Annexure 1, whereby, according to the petitioner, his pension has been fixed at a reduced rate and the order dated 12.3.1998, contained in Annexure 2, whereby a sum of Rs. 40,183.60 paise has been sought to be recovered on account of alleged excess pay drawn due to wrong fixation of pay from the D.C.R Gratuity payable to him.
2. It was been submitted on behalf of the respondent Board that the petitioner was paid excess amount due to wrong fixation of pay on the representation made by him. As such, there is no infirmity in the impugned orders. In this regard learned counsel for the Board has referred to the statement made in paragraph 9 of the counter affidavit from which it appears that the petitioner filed a representation requesting therein to remove the anomaly in his pay as his junior Shri Jagdish Prasad was getting higher pay than him and consequently, vide Office Order No. 287 dated 14.5.1984 his pay was fixed and he received it accordingly.
3. It is not the case of the respondent Board that there was any finding against this petitioner that he misrepresented the Board on account of which he was paid higher pay. The Board has not even pleaded that said junior of the petitioner Shri Jagdish Prasad was not paid higher pay than him. Thus, it is not a case where it can be held that the petitioner received alleged higher pay by misrepresenting the facts before the authority concerned. In view of the settled law in the case of Sahib Ram v. State of Haryana, reported in 1995 Supp. (1) SCC 18, that no such recovery is permissible unless it is found that such payment was made on account of misrepresentation or fraud committed by the employee concerned, the impugned order cannot be sustained.
4. However, it has rightly been submitted by the learned counsel for the Board that there is no infirmity in the Pension Payment Order, whereby the pension of the petitioner has been fixed on the basis of the pay admissible to him on the date of retirement. In the case of Smt. Sushma Prasad v. The State of Bihar (C.W.J.C No. 10173 of 1998, disposed of on 29.7.1999: 2000 (2) PLJR 96) this Court accepted the submission on behalf of the State that the decision of the Apex Court is only that the authority shall not make recovery of the alleged excess payment under the said circumstances, but not that the pensionary benefits cannot be fixed on the basis of the pay admissible to the employee concerned.
5. Accordingly, this writ petition is allowed, the order, contained in Annexure-2, is quashed and the respondents are directed to pay the aforementioned amount recovered from the pensionary benefits of the petitioner within two weeks. In the facts and circumstances, there shall be no order as to costs.
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