Allahabad High Court
Murtaza vs State Of U.P. And Others on 6 August, 2012
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 7
Case :- WRIT - A No. - 36352 of 2012
Petitioner :- Murtaza
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Sanjeev Agnihotri,Mohan Srivastava
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
1. Heard Sri Mohan Srivastava, learned counsel for the petitioner at great length and perused the record.
2. The writ petition is directed against the order dated 19.04.2012 passed by respondent No.3 in so far as it relates to the recovery from the petitioner.
3. Learned counsel for the petitioner submitted that after the age of superannuation he has worked under the instructions of superior officer and was paid salary accordingly. It was not on account of any fault on his part therefore, he cannot be penalized by directing to pay back salary which he has received by discharging duties for the said period. He further contended that once certain payments have been made not attributable to any fraud or misrepresentation on the part of employee concerned, after long time, no recovery can be made and placed reliance on this Court's decision in B.N. Singh Vs. State of U.P. & Anr 1979 ALJ 1184, Shyam Babu Verma & Anr. Vs. Union of India & others, 1994 (2) SCC 521, Gabriel Saver Fernandes & others Vs. State of Karnataka & others 1995 Suppl. (1) SCC 149, Mahmood Hasan Vs. State of U.P. JT 1997 (1) SC 353, State of Karnataka & another Vs. Mangalore University Non-Teaching Employees' Association & others 2002 (3) SCC 302, Surya Deo Mishra Vs. State of U.P. 2006 (1) UPLBEC 399 (F.B.) and Purushottam Lal Das & others Vs. State of Bihar and others 2006(10) SCALE 1999.
4. Lastly it is contended that once petitioner has actually discharged his duties, paid salary, if recovery is allowed, it would amount to compelling a person to work without remuneration and would be violative of Article 23 of the Constitution. Therefore recovery of salary paid for the period petitioner has actually discharged his duties is illegal.
5. In my view, none of the above submissions have any force. From the record it is evident that in service book of petitioner, his date of birth was mentioned as 6th October, 1948 therefore petitioner would have attained the age of superannuation on 31st October, 2008 and had to retire. However, admittedly he has continued thereafter and discharged duties for 26 months namely from November, 2008 to December, 2010 and has received salary for the said period. The authorities after making enquiry have found that this continuation of petitioner was on account of illegality and dereliction of duty on the part of concerned Clerk as also the petitioner. The concerned clerk did not make available service book of the petitioner and kept the matter in dark for more than two years and petitioner also never informed the authority concerned on his own that as per the date of birth recorded and verified in his service book, he has already attained the age of retirement on 31st December, 2008 and is not liable to discharge any duties.
6. In the impugned order, Principal, Medical College has discussed about date of birth and that the petitioner must have knowledge since his age was verified in 1994 vide medical certificate dated 26th October, 1994. It was duly mentioned in his service book as 'verified'. The petitioner was aware of lapses on the part of concerned Clerk, inasmuch as and as soon as authorities took action for searching out service book of the petitioner, he himself made a representation on 7th December, 2010 stating that his service book was not made available by Sri Ashok Srivastava, Clerk and the petitioner is nearing his retirement and therefore, his service book be obtained from Ashok Babu so that petitioner may not have any problem on retirement.
7. If petitioner's contention that his date of birth was not 1948 but 1952 then question of his nearing retirement in 2010 would not have arisen as he would have continued in that case, upto October, 2012. The Principal therefore has found petitioner as well as concerned Clerk equally responsible and hence recovery of amount of salary received by petitioner after 31st October, 2008 has been directed to be recovered i.e. 50% from the petitioner and 50% from the concerned Clerk.
8. Here is a case where salary has been paid to the petitioner for no fault on his part but in this case petitioner has been found guilty of acting in collusion with concerned Clerk for receiving the aforesaid undue and illegal benefit. The various judgments cited at the bar on behalf of the petitioner therefore have no application to the facts of this case. Moreover, from the order also it is evident that authorities below have treated the case of illegal payment to the petitioner being a case of collusion, fraud and misrepresentation and therefore suggestion that recovery of amount already paid cannot be made, is unacceptable.
9. Further submission that once salary has been paid after performance of work, it cannot be recovered would not apply to a case where in an illegal and fraudulent manner, an employee has worked and obtained salary. Further, continuance of petitioner after 31st October, 2008 was patently illegal. Fundamental Rule 56 clearly provides that on attaining the age of superannuation the Government servant shall retire. This retirement is by operation of law and is mandatory. No one legally can be permitted or otherwise continue once he has attained age of superannuation. This is evident from the language of Fundamental Rule 56(1)(a) which reads as under :
"Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years :
Provided that a Government servant, whose date of birth is the first day of a month, shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years."
9. It need not be reminded that Fundamental Rule 56 in the State of U.P., is by virtue of a legislative Act i.e. U.P. Act No.24 of 1975 and 33 of 1976. The legislature has made a declaration that an employee shall retire on attaining the age of superannuation meaning thereby it is a legislative mandate that after the date of retirement, employee concerned would have to cease to work and cannot be allowed to continue.
10. That being so, the petitioner's continuance after the age of retirement was patently illegal and in the teeth of fundamental rule 56.
11. In view thereof I do not find any error in the impugned order directing for recovery of the amount already paid to the petitioner. The respondent No.4 having taken a rational view by apportioning the aforesaid amount between petitioner and concerned Clerk whose action helped petitioner in continuance of retirement, cannot be said to have acted illegally or erroneously warranting interference.
12. No interference is therefore called for with the impugned order.
13. The writ petition is dismissed with cost of Rs.10,000/- .
Order Date :- 6.8.2012
KA
