Judgment 1. In this writ petition, petitioner, who retired from the service of Bihar State Electricity Board while posted as Head- Clerk, Gaya Electrical Circle, Gaya (East) on 31.1.2000 is aggrieved by Pension Payment Order as well as order sanctioning gratuity both dated 5.3.2003 (Annexures-A and B respectively to the counter affidavit), by which pension of the petitioner has been fixed on the reduced salary and not on the last pay drawn and Rs. 64,146.90 has been ordered to be deducted from the amount of gratuity on account of excess pay drawn by the petitioner, besides commutation of pension. 2. Petitioners case, in brief, is that he was given benefit of 12% promotional pay fixation at the time of granting selection grade with effect from 3.4.1976 in the pay scale of Rs. 490-844/- as also when he was promoted as Head-Clerk with effect from 27.8.1982 in the pay scale of Rs. 570-1015/- i.e. in the higher scale of pay as per Boards Standing Order Ho. XIII/MI- 1024/80/125/EB dated 7th May, 1983 (Annexure-3), whereby para 3 of the Boards Standing Order no. 515 dated 7.5.1976 (Annexure-2) was amended and it was decided to give advantage of adding 12% to the maximum of Rs. 150/- in fixation of pay on promotion also, if the scale of pay of the post to which promotion is given is higher than the scale of pay of the post given earlier by way of removal of stagnation and this benefit is not admissible to such categories of workmen where scale of pay of upgraded post and that of the post to which promotion is made is identical. After retirement petitioner was given only 90% provisional pension and after several representation when his other remaining retiral dues were not given, he filed the present writ application. 3. A counter affidavit has been filed on behalf of Bihar State Electricity Board- Respondent no. 1 to which Pension Payment Order, sanctioning full pension of the petitioner and order sanctioning gratuity both dated 5.2.2003 have been annexed as Annexures-A and B respectively, which the petitioner has challenged by filing I.A. No. 668 of 2003. In the supplementary counter affidavit filed on behalf of Respondent nos. 1 to which Pension Payment Order, sanctioning full pension of the petitioner and order sanctioning gratuity both dated 5.2.2003 have been annexed as Annexures-A and B respectively, which the petitioner has challenged by filing I.A. No. 668 of 2003. In the supplementary counter affidavit filed on behalf of Respondent nos. 1 to 6 it is stated that at the time of fixation of final pension when the service book along with pension papers of the petitioner were received from the field office at Gaya in the Board headquarters it was detected that there was a wrong pay fixation inasmuch as he was given the benefit of 12% promotional pay fixation both at the time of his upgradation to selection grade with effect from 3.4.1976 and again in the year 1982 when he was promoted on the post of Head Clerk, which was not permissible as per the Boards standing order. Accordingly, his last pay was recalculated at the reduced pay scale and pension has been fixed vide Annexure-A. Consequently it was found that the petitioner had drawn a sum of Rs. 64,146.90 as excess pay which was recoverable from him and this amount was deducted from his gratuity. 4. Learned counsel appearing for the petitioner has submitted that the Joint Secretary of the Board vide his letter dated 30.6.2000 enclosing the audit report, as contained in Annexure-6 requested the General Manager-cum-Chief Engineer, Magadh Electricity Supply Area, Gaya (Respondent no. 7) for fixation of pay of the petitioner in the light of the audit report and for calculation of excess pay received by the petitioner, which was replied by Respondent no. 7 vide his letter dated 3.8.2000 (Annexure-7) stating therein that fixation of pay of the petitioner made on 27.8.1982 was done correctly. It has been further submitted that the Respondent- Board is not justified in fixing pension of the petitioner at reduced pay scale, therefore, both the orders as contained in Annexures-A and B have got no basis to stand and are fit to be set aside. 5. I find substance in the submission of the learned counsel for the petitioner. It has been further submitted that the Respondent- Board is not justified in fixing pension of the petitioner at reduced pay scale, therefore, both the orders as contained in Annexures-A and B have got no basis to stand and are fit to be set aside. 5. I find substance in the submission of the learned counsel for the petitioner. In the entire counter affidavit and supplementary counter affidavit, it is nowhere mentioned that under what standing order the benefit of 12% promotional pay fixation both at the time of upgradation to selection grade and again in the year 1982 when petitioner was promoted on the post of head cleark was not permissible, rather from perusal of Annexure-3 it appears that the Board vide its order no. 125 dated 7th May, 1983 amended paragraph 3 of its earlier standing order no. 515 dated 7.5.1976 and decided to give advantage of adding 12% to the maximum of Rs. 150/- in fixation of pay on promotion also, if the scale of pay of the post to which promotion is given is higher than the scale of the pay of the post given earlier by way of removal of stagnation and this benefit is not admissible only to such categories of workmen where scale of pay of upgraded post and that of the post to which promotion is made is identical. Petitioner in paragraph 11 of the writ petition has clearly stated that the petitioner on promotion was given higher scale of pay, which fact has not been controverted by the Respondent that the scale of pay of upgraded post and that of the post to which promotion has been made is identical. Only vague statement has been made in paragraph 6 of the supplementary counter affidavit that this was not permissible as the Boards standing order clearly laid down that if 12% pay fixation benefit had been given at the time of upgradation in the selection grade to the petitioner in the year 1978, he again could not have been given another 12% pay fixation benefit at the time of his promotion on the post of head clerk. Accordingly, in my opinion, fixation of pension of the petitioner at reduced scale of pay is not justified and consequently the recovery on that basis is also illegal. Accordingly, in my opinion, fixation of pension of the petitioner at reduced scale of pay is not justified and consequently the recovery on that basis is also illegal. The petitioner is entitled for fixation of his pension on the basis of last pay drawn by him and calculation of the amount of gratuity accordingly. Petitioner is also entitled for pension at the revised scale of pay and its arrear as also commutation of pension. 6. Writ application as well as amendment petition being I.A. No. 668 of 2003 are accordingly allowed. The impugned order contained in Annexures-A and B are quashed. Respondent-Board is directed to re-fix the pension of the petitioner accordingly and pay the amount with arrears and other remaining retiral dues including gratuity within two weeks of the receipt/production of a copy of this order, failing which the concerned authority shall be liable to pay a cost of Rs. 1,000/- (Rupees one thousand) from his pocket to the petitioner and the petitioner will be at liberty to file two pages affidavit for revival of this writ petition and taking appropriate action.