Judgment S.J.Mukhopadhaya, J. 1. The petitioner, who retired from the services of the State as Headmaster, at the time of fixation of his retirat benefits, certain amount was ordered to be adjusted/recovered on the ground that increments were wrongly released in his favour though he had not passed the requisite Hindi, noting and drafting examination (examination for short). 2. The sole question to be determined in this case is whether the State can deduct any amount from retiral benefits or re-fix pay from initial stage, after retirement, at the stage of determination of retiral benefits on the ground that the employee had not passed the requisite examination, while in service? The petitioner, who entered as an Assistant Teacher under the State, retired on 30.6.1992 from the post of Headmaster Middle School, Bagheji Barauli-2, Gopalganj. While in service, he was paid salary on proper fixation of pay after release of year to year increment. 3. According to the respondent-A.G.Bihar, in terms with rule framed under proviso to Article 309 of the Constitution of India, it was mandatory to pass the requisite examination for release of increment. Reliance was placed on rule framed vide Notification no.361 dated 15.6.1961, as amended vide notification dated 20.7.1972. It was also brought on notice that exemption was granted only in respect of assistant teacher vide Circular no. 1846 dated 25.5.1977 but on appointment as Headmaster, it was mandatory to pass the requisite examination within one year, failing which the increment was to be withheld, but not with cumulative effect. Plea has been taken that the petitioner having hot passed the requisite examination, should not have allowed increment since his appointment/promotion as Headmaster of the School; as it was wrongly allowed, on re-fixation a sum of Rs.98,000/- have been ordered to be recovered. It further appears that the pension of Rs.1475/- as was fixed on the basis of last pay drawn, was subsequently refixed at lower stage of Rs.1100/- per month. 4. It is not in dispute that the retiral benefits of pension/gratuity to be fixed in terms with Bihar Pension Rules, 1950.. It is so fixed, taking into consideration the pay of certain months and the last pay drawn. 4. It is not in dispute that the retiral benefits of pension/gratuity to be fixed in terms with Bihar Pension Rules, 1950.. It is so fixed, taking into consideration the pay of certain months and the last pay drawn. The power to curtail or withhold pension/gratuity is only stipulated under rules 43 and 139 of the Pension Rules, 1950 but no power delegated to curtail or lower down or withhold pension/gratuity for any other reason than the ground shown in the Rules. No provision has been made therein to curtail or withhold any amount from pension/gratuity or other retiral benefits on the ground of non-passing of requisite examination. Thereby, it is evident that the respondent-A.G., Bihar has no jurisdiction to lower down the pension/gratuity, nor can order/suggest to recover any amount from the retiral benefits on the ground of non-passing of requisite examination. This apart, it appears that the State Government vide its amended rule as notified on 20.7.1972 made provision to relax the rule for passing examination. Generally, the benefits of relaxation given to the persons, who crossed 50 years of age but could not pass examination on certain attempts. Such power being vested with the State Government, in the cases where persons were allowed benefits of increment, irrespective of passing the requisite examination, the authorities should have considered the case to grant post facto relaxation to regularise the matter instead of recovery in the amount from a pensioner. 5. Accordingly, the case is remitted to the respondents with direction to fix the pension and gratuity of petitioner taking into consideration the last salary drawn by him, without curtailment of benefits on the ground of non- passing of requisite examination. On such fixation, the retiral benefits, if any, due, be paid and amount, if any, recovered on such ground, be refunded, immediately, but not later than a period of two months. On failure, the respondents will be liable to pay penal interest @ 10% on such admitted dues to be counted from the date of retirement till the same is paid. 6. The writ petition stands disposed of, with the aforesaid observations/directions.