Point of Law : Retirement of service - If any mistake committed by the department in making pay fixation of an employee is rectified after the retirement of an employee withdrawing the benefit which have been paid to such employee much prior to the retirement of an employee, such mistake may not be rectified, consequently no amount in the name of excess amount shall be recovered from the employee nor the pension of such employee could be reduced.

JUDGMENT :

1. Heard Sri B.R. Singh, learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

2. By means of this writ petition, the petitioner has prayed for the following reliefs :-

"(i) to issue a writ, order or direction in the nature of certiorari quashing the order, as contained in Annexure No.1, dated 16.01.2020 passed by the opposite party No.4 and the letters dated 28.05.2020 and 18.07.2019, as contained in Annexure Nos.2 and 3, passed by the opposite party No.2.

(ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to reduce the pension of the petitioner in pursuance of Annexure No.1.

(iii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to pay the arrears of pay fixation dated 09.01.2018 in tune of Rs.315145/-to the petitioner and other arrears."

3. Learned counsel for the petitioner has contented that the petitioner retired from service on 31.01.2018 and before his retirement his final salary has been determined vide office memo dated 09.01.2018 (Annexure No.13) to the tune of Rs.83300/-and on the basis of said salary the pension of the petitioner was fixed as Rs.41650/-, as indicated in Annexure No.15 to the writ petition. After about 2 years from his retirement, the impugned office memo dated 16.01.2020 has been issued by the Executive Engineer concerned reducing the final pay of the petitioner to Rs.80900/-thereby reducing the pension of the petitioner.

4. Per contra, learned Standing Counsel has submitted that since the pay fixation of the petitioner was wrongly made in the year 1996 and later on, therefore, the required exercise has been carried out pursuant to the letters dated 18.07.2019, 19.11.2019 and 02.12.2019.

5. Learned Standing Counsel has drawn attention of this Court towards the counter affidavit showing Annexure Nos.CA-1 to CA-3, which are letters dated 18.07.2019, 19.11.2019 and 02.12.2019, wherein it has been indicated that salary of the petitioner was wrongly fixed in the year 1996 and later on. Therefore, cautious decision was taken to revise the salary of the petitioner as per the Government Orders. Further attention has been drawn towards Annexure No.CA-4 of the counter affidavit, which is a letter dated 02.01.2019 as copy thereof has been provided to the petitioner, whereby it has been indicated that the salary of the petitioner shall be reduced in terms of the government order as it has not been fixed properly.

6. As per learned Standing Counsel, the petitioner has not submitted the reply to the aforesaid letter dated 02.01.2019, therefore, the impugned order dated 16.01.2020 has been passed reducing the pay scale of the petitioner and such order is well reasoned order which has been passed considering the relevant government orders.

7. Replying the aforesaid contention of learned Standing Counsel, Sri B.R. Singh, learned counsel for the petitioner has drawn attention of this Court towards paras-10 to 13 of the writ petition wherein he has categorically indicated that in the issue in question the Division Bench of this Court has passed the judgment and order dated 29.03.2011 in Writ Petition No.786 (S/B) of 2009 allowing the writ petition in part directing the opposite parties to provide the notional promotion and other consequential benefits to the petitioner with effect from 01.09.1996. Notably, this fact has not been denied by the State in the counter affidavit. The operative portion of the judgment and order dated 29.03.2011 is being reproduced here-in-below:-

"Accordingly, the writ petition is allowed in part and impugned order dated 12th January 2009, passed by the Tribunal stands modified subject to the aforesaid directions. The claimant-respondents are entitled for notional promotion and with all consequential benefits w.e.f. 1st September, 1996."

8. Sri B.R. Singh, learned counsel for the petitioner has submitted that the aforesaid judgment and order dated 29.03