Order: In this writ petition it has been alleged that the petitioner's service Record was manipulated by changing the date of birth behind his back. It is the further case of the, petitioner that date of birth could not have been changed by the Government in violation of the Government Order dated 20th July, 1956 published in Calcutta Police Gazette dated 6th August, 1956. 2. After hearing the respective submissions of the parties an order was passed by this Court on 15th February, 1989, inter alia, to the following effect: "I have considered the respective submissions of the parties. It appears to me that this is a fit case where the petitioner should be given an opportunity of hearing to update his grievances. Since the Commissioner of Police has already made a finding on the representation of the petitioner without hearing him, in my opinion, that finding should be quashed and set aside. The petitioner should be given a fresh hearing by the Secretary, Home Department, treating the writ petition of the petitioner as his representation. Such representation of the petitioner should be disposed of by the Home Secretary after hearing the parties within six weeks from the date of communication of this order. Both the parties will be entitled to produce such documents before the Home Secretary as they may be advised. The respondents are directed to release the provident fund amount of the petitioner within two weeks from the date of communication of this order. All parties to act on a signed copy of this dictated order on the usual undertaking." 3. The Home Secretary, thereafter, heard the petitioner and came to the finding that the date of birth as recorded in the Matriculation Certificate should be accepted On the basis of which the petitioner's date of birth as recorded by the Government as 1st March, 1918, stand8 accepted. The petitioner does not really challenge the decision of the Home Secretary in that respect. It is the case of the petitioner that his retiral benefits including the dues On account of General Provident Fund, Gratuity and Pension have been wrongly withheld. It is the contention of the State Government on the other hand that the petitioner has been wrongfully occupying the Government quarter allotted to him. It is the case of the petitioner that his retiral benefits including the dues On account of General Provident Fund, Gratuity and Pension have been wrongly withheld. It is the contention of the State Government on the other hand that the petitioner has been wrongfully occupying the Government quarter allotted to him. It has further been submitted on behalf of the petitioner that the Government is not entitled in law to deduct the pension, gratuity or other benefits of its employee in any manner. 4. It has been submitted on behalf of the petitioner that the State Government is not entitled to withhold retiral benefits of the petitioner and such deduction is illegal. It has also been submitted on behalf of the petitioner that by not taking any step during the long years they have debarred the petitioner from finding any alternative accommodation for his own. Had the retiral benefits been released immediately after expiry of two months from the date of his retirement, petitioner could invest a large sum of money in Bank in the fixed deposit scheme and could enjoy interest at 'the current market rate. 5. In support of his contention the Learned Advocate for the petitioner relied upon the following decisions:- (1) Deokinandan Prasad vs. The State of Bihar and others. reported in AIR 1971 SC 1409 . (2) State of Kerala and others vs. Padmanabhan Nair reported in AIR 1985 SC 356 . (3) Union of India and another vs. Wing Commander R.R. Hingorani reported in AIR 1987 SC 808 . 6. It has been submitted on behalf of the State Government on the other hand that the petitioner has wrongfully occupied Government quarter after he was superannuated. On that account the State Government' claims that a sum of Rs. 99.636/- is due on account of rent payable by the petitioner. The said claim has been made by the State Government, on the basis of market rent @ Rs. 874/- only per month. 7. The statement filed by the Registrar, Calcutta Police is set out herein-below: - "The pensionary benefits of Shri Jitendra Nath Mukherjee ex-Inspector of Calcutta Police were sanctioned and forwarded to the Accountant General, West Bengal on 2.9.87 for payment after deduction of a sum of Rs. 99,636/- only as rent on the basis of market rent @ Rs. 7. The statement filed by the Registrar, Calcutta Police is set out herein-below: - "The pensionary benefits of Shri Jitendra Nath Mukherjee ex-Inspector of Calcutta Police were sanctioned and forwarded to the Accountant General, West Bengal on 2.9.87 for payment after deduction of a sum of Rs. 99,636/- only as rent on the basis of market rent @ Rs. 874/- only per month assessed by the L.A.C. for the period from 1.3.76 to 31.8.87. A further statement of rent calculated for the period from 1.9.87 to 31.1.92 on the same basis is as follows: Period from 1.9.87 to 31.1.92 i.e. 4 years, 5 months. 4 years 5 months (4 X 12)+5 months = 53 months Rent: Rs.874/-X 53 = Rs. 28,912/- Total Rent-Rs. 99,636+Rs. 28,842/- i.e. = Rs. 1,28,528/- only." 8. I have considered the facts on record and the submissions of the parties and the decisions cited from the bar, The Supreme Court in the case of Deokinandan Prasad vs. The State of, Bihar and others reported in AIR 1971 SC 1409 at page 1420 in paragraph 34 observed as follows:- "Having due regard to the above decisions, we are of the opinion, that the right of the petitioner to receive pension is properly under Article 31(1) and by a mere executive order the State had no power to withhold the same Similarly, the said claim is also properly under Article 19 (1) (f) and it is not saved by sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1) of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pensions Act (Act 2 of 1971) there is a bar against a Civil Court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamas being issued to the State to properly consider the claim of the petitioner for payment of pension according to law." 9. That does not stand in the way of a Writ of Mandamas being issued to the State to properly consider the claim of the petitioner for payment of pension according to law." 9. In the case of State of Kerala and others vs. M. Padmanabhan Nair reported in AIR 1985 SC 356 the Supreme Court held that Pension and gratuity are no longer any bounty to be distributed by the Government to its empolyees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. The liability to pay penal interest on these case at the current market rate commences at the expiry of two months from the date of retirement. 10. The claim for interest made by the Govt. Servant who was paid his pension and gratuity more than two years and three months after his retirement due to non-production of Last Pay Certificate by the retiree, it was held, was rightly granted as the delay was due to lapse on the part of the Treasury Officer enjoined to issue the certificate under Rule 86 of Treasury Code (Bom.). 11. The Supreme Court was inclined to grant 12% interest to the retired employee but did not do so as the employee had acquiesced in his claim being decreed at six per cent. 12. Similar question was involved in the judgment and decision of the Supreme Court in the case of Union of India and another vs. Wing Commander R. R. Hingorani reported in AIR 1987 SC 808 . In that case the allottee retained the Government quarter beyond the concessional period of two months permissible under sub-rule (2), and it was held that the Government is entitled to recover the said amount due and payable on the basis of market rent for the period during which unauthorised occupation of Government quarter continued, However, the Government cannot withhold pension or retiral benefits of the Government servant. In paragraphs 12, 13 and 14 of the said judgment observed as follows: "The Learned Additional Solicitor General has very fairly brought to our notice Circular No. B. 2(28)E. V/52 dated August 25, 1985 issued by the Government of India, Ministry of Finance to the effect:- "When a pensioner refuses to pay Government dues- The failure or refusal of a pensioner to pay any amount owed by him to Government cannot be said to be misconduct within the meaning of Art. 351 of the C.S.R. (Rule 8, C.C.S. (Pension) Rules 1972) The possible way of recovering/demanding Government dues from a retiring officer who refuses to agree in writing, to such dues being recovered from his pension is either to delay the final sanction of his pension for some time which will have the desired effect for persuading him to agree to recovery being made therefrom or take recourse to Court of law." It bears out the construction that the words "money due or to become due on account of pension" occurring in S. 11 of the Pensions Act 1871 include the commuted portion of the pension payable to an employee after his retirement. It must accordingly be held that the Government had no authority or power to unilaterally deduct the amount of Rs. 20,482.78p. from the commuted pension payable to the respondent, contrary to S. 11 of the Pensions Act, 1871. For these reasons, the appeal partly succeeds and is allowed. The judgment and order of the High Court are set aside. We allow the writ petition filed by the respondent in the High Court and direct that a writ of mandamas be issued ordering the Central Government to refund the amount of Rs. 20,482.78p. deducted from the commuted pension paid to the respondent. The Government shall be at liberty to initiate proceedings under S. 7(2) read with S. 14 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for recovery of Rs. 20,482.78p. due on account of damages for unauthorised use and occupation of the flat in question from the respondent as arrears of land revenue, or have recourse to its remedy by way of a suit for recovery of damages. Before parting with the case, we wish to add a few words. The Government should consider the feasibility of dropping the proceedings for recovery of damages, if the respondents were to forego his claim for interest. Before parting with the case, we wish to add a few words. The Government should consider the feasibility of dropping the proceedings for recovery of damages, if the respondents were to forego his claim for interest. In this case the deduction of the amount of Rs. 20,482,78p. from the commuted pension payable to the respondent was made as far back as October 30, 1976, since then, 10 years have gone by. Even if interest were to be calculated at 9% per annum, the interest alone would aggregate to more than Rs. 18,000. Since the Government had the benefit of the money for all these years, it may not be worthwhile in pursuing the matter any further." 13. Considering the facts and circumstances of the case in my view the same principle should be followed in the instant case as was decided by the Supreme Court in the aforementioned decision. 14. Petitioner has filed a statement of claim showing a total amount of Rs. 4,36,180-87 as per particulars mentioned therein. It appears from the said statement that a sum of Rs. 58, 667-10 is due on General Provident Fund Account, a sum of Rs. 52,559.43 is due on account of gratuity with interest and a sum of Rs. 2,59,650-34 is due on account of pension and a sum of Rs. 65,304.00 is due on account of salary. The details under each head are mentioned herein-below: General Provident Fund Amount Balance as on 31.8.75 Rs. P. Credited @ 100 per month for the period 1.9.75 to 29.2.76 19,937.00 Rs. 20,537.00 Interest @ 6% per annum on Rs. 19,937/-(Rs. 1,196.22) and @ 6% per annum on Rs. 600/-for 6 months only (Rs. 18.00) from 1.9.75 to 29.2.1976. Rs. 1,214.00 Balance as on 1.4.1976 Rs. 21,751.00 Credited @ Rs. 50/- per month during the of re-employment of 1 year (credited only months from 1.6.76 to 30.11.76) Rs. 300.00 Rs. 22,051.22 Interest @ 7.5% per annum on Rs. 21,751.22 (Rs. 1,631.34) and @ 7.5% per annum for 6 months only on Rs. 300.00 (Rs. 11.25) for the year 1976-77. 1,642.59 Balance as on 1.4.1977 Rs. 23,693.81 Interest @ 18% per annum for the years 1977 to 1992 (29.2.92) (Rs. 4,264.885 per year) Rs. 63,973.29 Grand total- Rs. 87,667.00 Less paid Rs. 29,000.00 (Payment accepted without prejudice and in terms of leave granted by Hon'ble Court) Rs. 58,667.00 Gratuity Amount Rs. 300.00 (Rs. 11.25) for the year 1976-77. 1,642.59 Balance as on 1.4.1977 Rs. 23,693.81 Interest @ 18% per annum for the years 1977 to 1992 (29.2.92) (Rs. 4,264.885 per year) Rs. 63,973.29 Grand total- Rs. 87,667.00 Less paid Rs. 29,000.00 (Payment accepted without prejudice and in terms of leave granted by Hon'ble Court) Rs. 58,667.00 Gratuity Amount Rs. P. Payable as on 1.3.1976 14,091.00 Interest @ 18% per annum for the period 1.1.77 to 31.12.84 (Rs. 2,536.38 per annum) 20,291.04 Interest @ 18% per annum for the period 1.1.85 to 31.12.91 (Rs. 2,536.38 annum) 17,754.66 Interest @ 18% per annum for the period 1.1.92 to 29.2.92 (Rs. 2,536.38 per annum) 422.73 Total Rs. 52,559.43 Pension in Case of Petitioner Date of Retirement is 1.3.1976 Pension Relief Rs. P. Rs. P. From 6.12.77 to 31.3.78 @ Rs. 351/-per month pension and @ Rs. 575/-as relief 1,357.20 2,223.33 From 1.4.78 to 31.8.87 @ Rs. 511/- per month pension and @ Rs. 575/-as relief. 57,743.00 64,975.00 Pension & Relief without interest from 6.12.77 to 31.3.87 Total Rs. 1,26,298.53). 59,100.20 67,198.33 Interest @ 18% per annum for the period 1.9.87 to 29.2.92 (for 54 months). 47,871.16 54,430.00 Pension and relief with interest upto 29.2.92 (Rs. 2,28,600.34) 1,06,971.36 1,21,628.98 Pension @ Rs. 511/- per month and Relief @ 575/-, per month for the period 1.9.87 to 29.2.92. 27,594.00 31,050.00 Grand total- Rs. 1,34,565.36 1,52,678.98 Less: Pension if credited @ Rs. 511/- per month to petitioners' Bank account for the period 1.9.87 to 19.2.92 (no relief is being given). 27,594.00 Rs. 1,06,971.36 1,52,678.98 Pension Relief Rs. p. Rs. P. Pension & Relief Payable as on 1.3.92 Rs. 1,52,678.98 Rs. 2,59,650.34 15. Learned Advocate for the State Government referred to the notification No. 6723-F dated 29th June, 1979, which provides for amendment of Rule 228. The said notification is set out herein-below:- "In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased hereby to make the following amendment in the West Bengal Service Rules. The said notification is set out herein-below:- "In exercise of the power conferred by the proviso to Article 309 of the Constitution of India, the Governor is pleased hereby to make the following amendment in the West Bengal Service Rules. Part-I, as subsequently amended (hereinafter referred to as the said Rules):- Amendment In Chapter XVI of the said Rules, after Rule 228, insert the following rules:- 228-A. When a building owned or leased or leased by Government or a portion thereof is let to a Government servant such Government servant shall not, in case of, (a) transfer to another station; (b) transfer to a post outside the control of the State Government, or (c) retirement/resignation/dismissal from service be eligible to occupy the building or portion thereof and he may be served with a notice to vacate the building or portion thereof by a date to be specified in such notice which shall not be less than thirty days from the date of the notice. (2) If the Government servant fails to vacate the building or portion thereof by the date specified in the notice under sub-rule (1) he shall be liable to pay market rent, being the rent determined on the basis of the rent prevailing in the locality, as assessed by the Land Acquisition Collector .or by any other competent authority authorised by the State Government." 16. On proper construction of 228-A(1)(c) of the said notification it appears that the Government servant may be served with a notice to vacate the building or portion thereof by a date to be specified in such notice which shall not be less than thirty days from the date of the notice. 17. It appears on proper construction of 228 (2) of the said notification if the Government servant fails to vacate the building or portion thereof by the date specified in the notice under sub-rule (1), he shall be liable to pay market rent. In the instant case, it has not been shown that any notice under 228-A(1) (c) has been served upon the petitioner who is occupier of the said premises. Under such circumstances, the question of applying the provision of the said notification does not arise in the instant case. 18. In the instant case, it has not been shown that any notice under 228-A(1) (c) has been served upon the petitioner who is occupier of the said premises. Under such circumstances, the question of applying the provision of the said notification does not arise in the instant case. 18. It is also settled law that pension and gratuity are no longer any bounty to be distributed by the Government td its employees on either retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. 19. It appears though it has been alleged that the Government is entitled to claim rent on account of wrongful user of the premises, the Government has not demanded the said rent at all. Accordingly it is not open to the Government to take the plea that since the rent was not paid by the petitioner the retrial benefits could not be paid to him. In any view of the matter, however, it is open to the Government to take appropriate action for realisation of its claim on account of rent, if there be any, and the Government cannot unilaterally take a decision to deduct and adjust the amount alleged to be due against the retiral benefits without preferring the claim before any appropriate forum. 20. Accordingly the contention of the Learned Advocate for the State Government that on the basis of the said notification the State Government is entitled to deduct a sum of Rs. 28,528/- being the amount due by way of rent payable at the market rate at this stage cannot be accepted. 21. The concerned authority of the State Government is, accordingly, directed to pay the amount being the retiral benefits due and payable within 31st August, 1992. The State Government will, however, be at liberty to take appropriate steps for realisation of the dues in terms of Rule 228-A (1) and (2) of the West Bengal Service Rules Part 1 as amended in accordance with law. All parties to act on the signed copy of the operative portion of this judgment on the usual undertaking. Petition allowed with directions.