Judgment S.J.Mukhopadhaya, J. 1. The petitioner retired from the services of the Bihar State Housing Board. Having not provided with retiral benefits of pension and gratuity, he moved before this Court for such payment with penal interest. 2. The fact as pleaded and admitted above that the petitioner was appointed to the post of Routine Clerk on 17th March, 1956 under the State of Bihar in the Directorate of Gram Panchayat, Subsequently, his service was taken, as direct recruitment in the Housing Department of the State of Bihar as Junior Accounts Clerk on 1st March, 1957. The petitioner was given promotion to the post of Senior Accounts Clerk with effect from 3rd March, 1959 followed by promotion to Selection Grade Scale with effect from 1st April, 1964. 3. The State of Bihar constituted Bihar State Housing Board (Housing Board for short) by an ordinance vide Govt. No. 3225 dated 7th March 72 with effect from 1st March 72. After creation of the Housing Board, complete assets, liabilities officers and employees of the Housing Department of the State of Bihar are transferred and placed under the Housing Board. Though the services of such employees including the petitioner were transferred under the Housing Board, no rule relating to service condition was framed. The State of Bihar vide order No. 3725 dated 20th September 72 laid down the terms and conditions with regard to services of employees transferred under the Housing Board, including the petitioner, wherein it was stipulated that the Housing Board until finalises the service conditions of its employees, officers and staff, whose services have been placed at the disposal of the Board shall continue to enjoy under the Housing Board, the same service conditions in respect of pay, increment, leave, promotion, discipline and other fringe benefits as admissible under the State Govt. However, they were not allowed deputation allowance, though it was made clear that their right to pensionery benefits shall continue. 4. Admittedly, the Housing Board subsequently had not framed any rule/regulations regarding service conditions of such transferred employees under section of the Bihar State Housing Board Act, 1982. While, in service of the Housing Board, the petitioner was given promotion to higher post of Divisional Accountant on 13th August 95 and ultimately, superannuated from the services of the Housing Board on 28th February 95. While, in service of the Housing Board, the petitioner was given promotion to higher post of Divisional Accountant on 13th August 95 and ultimately, superannuated from the services of the Housing Board on 28th February 95. After retirement of petitioner, though the Respondents released the other retiral benefits, pension and gratuity were not released and in absence of such release of pension, the petitioner could not commute the same. For the said reason, the present writ petition was preferred. 5. During the pendency of the writ petition, the Respondents State of Bihar fixed the pension of petitioner vide letter dated 8th November 96, but the same having fixed in the lower scale, allowing less pension and gratuity, the petitioner also challenged the same by filing amendment petition. 6. The State of Bihar appeared and filed counter affidavit. In the said affidavit, while the fact, as pleaded by the petitioner has not been disputed, taken plea that the petitioner was wrongly allowed promotion to higher post. It is stated that the services of the petitioner were taken into consideration at the time of grant of pension and retiral benefits, when it was found that the petitioner had drawn salary, which was not admissible to him in the State Government nor the same had been given to those who have been similarly placed. On scrutiny, the date of birth of petitioner was also not found to be correct having shown as 28th February, 1937, though the same was not a leap year. 7. The counsel appearing on behalf of the State while placed reliance on the impugned letter dated 8th Nov. 96 (equivalent to Annexure-D to the counter affidavit) submitted that if the petitioner would have been remained in the service of the State, his pay would have been such, as shown in the enclosure attached to the letter dated 8th Nov, 96. Taking into consideration the aforesaid notional calculation of salary of petitioner, pension and gratuity have been fixed and released for payment in favour of petitioner. 8. Almost similar case fell for consideration before this Court in the case of Smt. Shibrani Devi V/s. State of Bihar and ors. (unreported) in C.W.J.C. No. 4302/94 dated 20th March 97. The aforesaid lady moved before this Court for death-cum-retiral benefits, her husband who was in the service of the Housing Board having died by that time. 8. Almost similar case fell for consideration before this Court in the case of Smt. Shibrani Devi V/s. State of Bihar and ors. (unreported) in C.W.J.C. No. 4302/94 dated 20th March 97. The aforesaid lady moved before this Court for death-cum-retiral benefits, her husband who was in the service of the Housing Board having died by that time. In the said case, the State of Bihar raised dispute relating to validity of promotion as was granted to the deceased husband of said petitioner Shiv Rani Devi. This Court vide order and judgment dated 20th March 97 held that the validity of such promotion granted to the deceased husband of the said petitioner cannot be questioned at that stage. 9. The present case of the petitioner is in better footing. In fact, the State of Bihar has not challenged the validity of any promotion as was granted to him while he was in the services of the Housing Board. As pointed out above, the last promotion granted to the petitioner was on 13th August 75 and for about 20 years, no objection was raised by any person including the State. 10. In the aforesaid circumstances, I hold that the State of Bihar cannot raise the question indirectly while determining the pension of the petitioner. 11. So far as fixation of pension is concerned, specific rule has been framed by the State, under Bihar Pension Rules , 1950. Under Chapter VII (see Rule 136), while provision has been made relating to determination of pension which is based on length of service, under Rule 151 therein, the term emoluments has been clarified, which is used in respect of ordinary pension and includes emoluments, which the Government servant was receiving immediately before his retirement and include substantive pay of the permanent post-oversees pay; personal pay; special pay officiating pay etc. 12. In the aforesaid circumstances, the Respondents instead of determination of pay of petitioner notionally since 1964 as made vide letter dated 8.11.1996, should have calculated the pension and gratuity of petitioner taking into consideration the last pay drawn by him. 13. Accordingly, I set aside the impugned fixation of pension as made and communicated vide letter dated 8th Nov. 12. In the aforesaid circumstances, the Respondents instead of determination of pay of petitioner notionally since 1964 as made vide letter dated 8.11.1996, should have calculated the pension and gratuity of petitioner taking into consideration the last pay drawn by him. 13. Accordingly, I set aside the impugned fixation of pension as made and communicated vide letter dated 8th Nov. 96 (Annexure-11, equivalent to Annexure- D) and remit the matter to the Respondents State for proper fixation of pension and gratuity of petitioner, in accordance with Bihar Pension Rules , taking into consideration the last pay drawn by petitioner. Proper fixation be made and arrears towards pension and gratuity, if any, be paid immediately, but not later than a period of two months from the date of receipt/production of a copy of this order. 14. The Respondents are also directed to pay penal interest @ 10% on such admitted dues to be calculated from the date of retirement of the petitioner, till the same is being paid. 15. The petitioner, if so chooses, may ask for commutation of the part of the pension and if such application is filed by the petitioner within one month, the authorities will determine and allow the same, in accordance with law. 16. The writ petition is allowed with the aforesaid observations and directions. However, in the facts and circumstances, there shall be no order, as to costs.