Nilufar Islam vs The State Of Assam And 6 Ors
2022 Latest Caselaw 1416 Gua

                                                                  Page No.# 1/22

GAHC010154122018




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/4740/2018

         NILUFAR ISLAM
         D/O. LT. SIRAJUL ISLAM, W/O. MAHBUBUL HAQUE, R/O. HOUSE NO. 13,
         OPP. ANGLES OF GOD SCHOOL, P.D. CHALIHA ROAD, SILPUKHURI, P.S.
         CHANDMARI, DIST. KAMRUP(M), ASSAM, GUWAHATI- 781003.

         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         TO BE REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, EDUCATION
         DEPTT., DISPUR, GUWAHATI-6.

         2:DIRECTOR OF PUBLIC INSTRUCTION
          KAHILIPARA
          GUWAHATI-19.

         3:DIRECTOR OF HIGHER EDUCATION

          KAHILIPARA
          GUWAHATI-19.

         4:THE ACCOUNTANT GENERAL (A AND E)
         ASSAM
          MAIDAMGAON
          BELTOLA
          GUWAHATI-29
          REP. BY SENIOR ACCOUNTS OFFICER.

         5:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          GUWAHATI-6.

         6:THE TREASURY OFFICER
          KAMRUP(M)
                                                                             Page No.# 2/22


             P.O. PANBAZAR
             DIST. KAMRUP(M)
             PIN- 781001.

            7:THE PRINCIPAL
             DAKHIN KAMRUP COLLEGE
             MIRZA
             P.O. MIRZA
             PIN 781125

Advocate for the Petitioner   : MD. I HUSSAIN

Advocate for the Respondent : SC, HIGHER EDU

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

Date of Hearing : 21.04.2022

Date of Judgment : 29.04.2022

JUDGMENT AND ORDER (CAV)

Heard Mr. I. Hussain, the learned counsel for the petitioner and Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent Higher Education Department, Assam, i.e. the respondent Nos. 1 to 3. Also heard Mr. D. Deka, the learned counsel appearing on behalf of the respondent No. 4 & 6; Ms. D. D. Barman, the learned Additional Senior Government Advocate, Assam for the respondent No. 5 and Mr. S. K. Mazumdar, the learned counsel appearing

2. The instant writ petition has been filed by the petitioner challenging the communication dated 11.06.2018 and the reference letter bearing No.DHE/PEN/270/2017/pt/5 dated 11.06.2018, for a direction to the respondent authorities to release the gratuity and leave encashment along with finalization Page No.# 3/22

and release of provisional pension as well as also for a direction upon the respondent authorities not to adjust the amount of salary which the petitioner has already received from 01.05.2014 to 30.04.2017 on the ground of overstay in service.

3. The facts of the instant case are that the petitioner did her schooling at Pine Mount School, Shillong and in the year 1972, she qualified in the Indian School Certificate Examination and a certificate was issued which has been enclosed as Annexure-1 to the writ petition. A perusal of the said certificate

shows that the date of birth of the petitioner recorded therein was 20 th April, 1954.

4. It is the case of the petitioner that she was actually born on 20.04.1957 but in the said certificate it was wrongly recorded as 20.04.1954. This mistake was noticed some time in the year 1984 and the father of the petitioner sworn an affidavit before the Judicial Magistrate stating inter-alia that the petitioner was born on 20.04.1957 at his residence, and accordingly, the age of the petitioner was 27 years as on 20.04.1984. It is relevant to mention that no materials have been placed that the petitioner took steps for correction of her date of birth in the said certificate.

5. The petitioner was appointed as a Lecturer in English by the Principal D. K. College, Mirza on 05.11.1984, and thereafter, she joined in her service and in due course, her appointment was approved by the Competent Authority. It is further stated that her service was confirmed by an order dated 09.10.1993 with effect from 18.02.1993 by the Joint Director of Higher Education, Assam, Kahilipara. It is the further case of the petitioner that in her Service Book, her date of birth was reflected as 20.04.1957 and in all her service records her Page No.# 4/22

actual and correct date of birth was reflected to be 20.04.1957. The petitioner continued to render her services until she got retired from her services as an Associate Professor from the D. K. College, Mirza on 20.04.2017. At this stage, it may be relevant herein to mention that though in the petitioner's Service Book the date of birth was recorded as 20.04.1957, but at no point during the entire service career of the petitioner, the respondent authorities had issued notice to the petitioner alleging that her date of birth recorded in the Service Book was incorrect and it ought to have been 20.04.1954.

6. Subsequent to her retirement, the petitioner submitted all her necessary testimonials to the respondent authorities to release and finalize her pension and other pensionary benefits. As her pension as well as her pensionary benefits were not finalized, the petitioner submitted a representation to the respondent No. 3 for finalization of her pension case. Thereupon, the petitioner received two communications which were issued by the Senior Accounts Office of the Office of the Accountant General (A & E), Assam to the Treasury Officer, Kamrup (Metro) whereby the PPO No.919211242721 was forwarded in favour of the petitioner and requested the respondent No. 6 that the pensioner's portion of the order may be made over to her after obtaining her signature on the disburser's portion. Vide another communication also issued by the respondent No. 4 to the respondent No. 6 dated 12.03.2018, it was requested to arrange for payment of Rs.7,00,000/- to the petitioner on the basis of the petitioner's entitlement under the Death-Cum-Retirement Gratuity (DCRG). Thereafter on 04.04.2018, the respondent No. 7 who is the Principal of D. K. College, Mirza issued a letter addressed to the respondent No. 6 with a request to issue non- drawal of provisional pension/DCRG to the petitioner. The petitioner on 16.05.2018 made a representation to the respondent No. 3, i.e., the Director of Page No.# 5/22

Higher Education for release of her provisional pension along with leave encashment and gratuity till finalization of her pension proposal. Pursuant thereto, the Director of Higher Education, i.e., the respondent No. 3 issued a communication to the Principal, D.K. College, Mirza, the respondent No. 7 herein dated 11.06.2018 wherein it was stated that since the petitioner overstayed in service for long three years with effect from 01.05.2014 to 30.04.2017, the Accountant General, Assam has returned back her original pension papers for initiating further action and as such the pension papers of the petitioner were returned and requested the respondent No. 7 to submit her provisional pension proposal to the Directorate after revised entries in the Service Book along with preparation of overdrawal statement and reflecting the overdrawal amount in a fresh "Form-19" for adjustment by the Accountant General, Assam supported with the consent letter from the petitioner for making the adjustment of overdrawal amount of her pensionary benefit. The respondent No. 7 was also directed to attend the hearing on 14.06.2018 in the Office Chamber of the Director of the respondent No. 3 on the ground for allowing the petitioner to overstay in service for a long three years with effect from 01.05.2014 to 30.04.2017. The copy of the said letter dated 11.06.2018 was also endorsed to the petitioner for information.

7. Pursuant to the said letter, the respondent No. 7 issued a communication to the petitioner informing her that the Director of Higher Education, Assam had returned back the petitioner's original pension papers marking as overstay in service for long three years with effect from 01.05.2014 to 30.04.2017 with a request to resubmit the petitioner's provisional pension proposal after revised entries in the Service Book reflecting the overdrawal amount in fresh "Form-19". It was further mentioned that the respondent No. 7 had already prepared the Page No.# 6/22

overdrawal statement of salary of the petitioner and the petitioner was asked to give a consent letter for making an adjustment of the overdrawal amount from the petitioner's pensionary benefits as suggested by the respondent No. 3. The petitioner was requested to give a consent letter so that the proposal for provisional pension can be resubmitted at an early date. At this stage, it may be relevant herein to mention that a perusal of the Service Book of the petitioner shows that the date of birth recorded was 20.04.1957. The said Service Book further shows that the same was prepared on 29.01.1988. But after the date of birth being recorded in Column No. 5 as 20.04.1957, it was again written as 20.04.1957 in words and there is a signature of the then Principal of D. K. College, Mirza dated 24.01.2006. A further perusal of the Service Book shows that the same had been verified from time to time and found to be correct. It has also been mentioned that the petitioner retired on 30.04.2017. There is also an endorsement dated 01.08.2018 of the Principal, D. K. College, Mirza much after the retirement of the petitioner which reads as under:

"As per school certificate her date of retirement is 30.04.2014."

It seems that the same was done pursuant to the letter issued by the respondent No. 3.

8. Being aggrieved by the non-finalization of the pension and the communication by which it was informed that the amount of salary which the petitioner received from 01.05.2014 to 30.04.2017 would be adjusted from her pensionary benefits, the petitioner has approached this Court under Article 226 of the Constitution.

9. This Court vide an order dated 23.07.2018 issued notice, returnable by 6 (six) weeks. It was further mentioned that pendency of the writ petition shall Page No.# 7/22

not be a bar for the respondents to release the provisional pension of the petitioner on the basis of the admitted pay scale.

10. The respondent No. 7 filed an affidavit-in-opposition wherein it was clearly mentioned that at the time of appointment of the petitioner, she submitted an affidavit dated 30.07.1984 sworn by her father where it was stated that the petitioner was born on 20.04.1957 and due to oversight, her date of birth was wrongly recorded as 20.04.1954 at the time of submission of form for the Indian School Certificate Examination from Pine Mount School, Shillong in the year 1972. It was further mentioned that, in the Service Book of the petitioner her date of birth recorded as 20.04.1957 by the then Principal, D. K. College, Mirza on the basis of the said affidavit was not permissible. It was also mentioned that the subsequent Principals of D. K. College, Mirza have not rectified the wrong entry of the date of birth of the petitioner in the first page of the Service Book in the capacity of the Head of Office in course of periodical attestation as required under Rule 162 (1) of the Assam Financial Rules read with Note below Rule SR 8 of FR & SR.

11. A meticulous perusal of the affidavit filed by the respondent No. 7 does not show in any manner that there was any allegation of fraud or misrepresentation committed by the petitioner. There is also no statement or records produced that prior to the retirement of the petitioner on 30.04.2017 any notice was issued to the petitioner regarding wrong insertion of her date of birth in the Service Book. It was mentioned that the Director of Higher Education, Assam passed a detailed order pursuant to the filing of the instant writ petition bearing Memo No.DHE/PEN/ 270/2017/pt/26 dated 24.08.2018 inter-alia stating that in pursuance of the pension proposal submitted by the respondent No. 7 and under the authority issued by the Government vide Page No.# 8/22

No.PPG(P)7/2012/8 dated 21.06.2012 and as per the order dated 23.07.2018 passed by this Court in WP(C) No. 4740/2018 a sanction was accorded for drawal of Provisional Pension @ Rs.27,500/- only per month on the basis of the last pay of the petitioner concerned for Rs.61,680/- as on 30.04.2014 with other allowances as admissible with effect from 01.05.2014 till the final PPO is issued by the Principal Accountant General (A & E), Assam in respect of the petitioner. However, the amount of Provisional Pension with admissible allowances payable during the overstay period from 01.05.2014 to 30.04.2017 will not be paid and will be adjusted against the amount of salary the petitioner had already overdrawn during that period and the Provisional Pension may be paid with effect from 01.05.2017 with admissible Medical Allowances and the balance of the overdrawal of salaries would be adjusted from the amount of the Dearness Relief.

12. The respondent No. 3 had also filed an affidavit-in-opposition. In the said affidavit-in-opposition it is conspicuously apparent that there is no statement that during the petitioner's service career till she retired on 30.04.2017 there was any notice issued to the petitioner as regards the incorrect entry of the date of birth. What has been alleged in the said affidavit-in-opposition is that the petitioner had misrepresented in entering the date of birth inasmuch as it is only the matriculation or equivalent certificate and in absence of the same with reference to the birth certificate, the date of birth ought to have been entered. But the date of birth was entered on the basis of the affidavit sworn by the father of the petitioner declaring that 20.04.1957 is the date of birth of the petitioner. It was alleged that on account of the overstay of the petitioner in service for a period of 36 months, a huge amount of Rs.53,32,274/- was siphoned as overdrawal of the salary out of the public exchequer due to Page No.# 9/22

misrepresentation of the petitioner by furnishing factually incorrect information. It was mentioned that the petitioner would not be entitled to provisional pension with admissible allowances payable during the overstay period from 01.05.2014 to 30.04.2017 as the same would be adjusted against the amount of salary which the petitioner had overdrawn during the period and the provisional pension would be paid with effect from 01.05.2017 with admissible Medical Allowances and the balance amount of overdrawal of the salary would be adjusted with the amount of future Dearness Relief.

13. I have heard the learned counsels for the parties and submissions so raised by the learned counsels. Two questions arises for consideration:

(i) Whether the respondent authorities would be justified to recover from the petitioner the salary for the period from 01.05.2014 to 30.04.2017; and

(ii) If not, what is the relief to which the petitioner is entitled to.

14. Let this Court first take into consideration the first question as to whether the action of the respondent authorities to resort to recovery of the salary for the period from 01.05.2014 to 30.04.2017 from the petitioner is permissible in law.

15. The facts narrated herein above clearly would go to show that though the Indian School Certificate issued to the petitioner reflected the date of birth to be 20.04.1954, but by way of an affidavit dated 30.07.1984, the father of the petitioner has stated that the recording of the date of birth in the Indian School Certificate was incorrectly done and the date of birth of the petitioner ought to have been 20.04.1957. Both the certificate as well as the affidavit were placed before the authority at the time of appointment of the petitioner and on the Page No.# 10/22

basis of the affidavit, admittedly the date of birth of the petitioner was entered as 20.04.1957.

16. A perusal of the Service Book shows that the said Service Book was verified and authenticated from time to time by the Head of the Office. It is also the stand as taken in the affidavit filed by the respondent No. 7 that till the date of retirement of the petitioner, the Head of the Office, who is the Principal of the said College did not take any steps for correction of the date of birth on the basis of the said Indian School Certificate and no notice was issued to the petitioner at any point of time till she retired on 30.04.2017 that her date of birth was incorrectly recorded in the Service Book.

17. At this stage, this Court finds it relevant to refer to a judgment of the Supreme Court of India rendered in the case of the State of Bihar and Others Vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 wherein the issue was that in the Service Book of the employee which was opened on 14.08.1973, two dates of birth were recorded, one was 11.02.1944 and other was 11.02.1946. The respondent State authorities did not correct or delete any of the dates mentioned for the entire period the employee was in employment with the State Authorities. The employee retired on 29.02.2004 on the basis of the later date entered in the Service Book. Thereupon by an order dated 04.12.2004, the State Authorities directed recovery of the excess amount drawn by the employee. Being aggrieved, the employee approached the Patna High Court. The learned Single Judge of the Patna High Court dismissed the said writ petition. On appeal, the learned Division Bench of the Patna High Court interfered with the order of recovery sought to be made by the State Authorities and directed refund of the amount already recovered with interest @ 6% per annum. The matter reached the Supreme Court. The Supreme Court while Page No.# 11/22

upholding the judgment of the learned Division Bench of the Patna High Court held that as the employee was allowed to work beyond his due date of superannuation without raising any objection and in absence of misrepresentation and fraud to be attributed to the employee, the Division Bench of the Patna High Court was justified in setting aside the recovery of the excess amount on account of overstay. Paragraph Nos. 12 to 29 of the said judgment, being relevant for the purpose of the instant dispute, is quoted herein below:

"12. We have heard the learned counsel appearing on behalf of the parties and perused the materials on record as well as the impugned judgment. It appears that the department raised a controversy in regard to the date of birth after about 31 years of service of the respondent. It is an admitted position now that the amount directed to be recovered, has already been recovered from the retiral dues of the respondent which has been ordered by the Division Bench to be refunded to the respondent with interest @ 6%.

13. It is true that the date of birth mentioned in the matriculation certificate should be treated as the date of birth of the respondent. But it would be open to the employee to place documents before the authorities that the date of birth shown in the service book taken from the matriculation certificate was incorrect. There has been no such document placed on record to corroborate the same except an affidavit sworn by the respondent which is on record. Therefore, the respondent ought to have retired on 28-2-2002, on the basis of his matriculation certificate which shows his date of birth as 11-2-1944 as recorded in his service book.

14. The learned counsel appearing on behalf of the appellant argued that since the service book of the respondent was in custody in which one of the date was mentioned as 11-2-1944, he ought to have retired on 28-2-2002, and therefore, he had fraudulently continued to serve the appellant till 29-2-2004 thereby receiving undue payment of salary and other allowances. We find no Page No.# 12/22

merit in this argument.

15. It is to be noted that there was no question of fraud committed by the respondent before the learned Single Judge or even before the Division Bench of the High Court. The Division Bench, in the impugned judgment, had on this account subsequently mentioned thus, which is quoted as under:

"In the present case, there was no dispute about the fact that there is no allegation of misrepresentation or fraud purported to have been perpetrated by the appellant-original writ petitioner."

(emphasis supplied) Such being the position and in the absence of any allegation of misrepresentation or fraud made by the appellant, the appellant cannot be permitted to raise the allegation of misrepresentation or fraud for the first time in this Court.

16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident.

17. In view of the aforesaid circumstances, the appellant ought to have deleted the date of birth entered in the service book of the respondent on the basis of his affidavit as the appellant had already accepted the date of birth of the respondent on the basis of his matriculation certificate which was also Page No.# 13/22

produced by the respondent.

18. The appellant alleged that the respondent had entered a second date of birth in his service book at a later period of time. The respondent vehemently negated this contention stating that two dates of birth were entered simultaneously in his service book by the department officials.

19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.

20. This Court in Kailash Singh v. State of Bihar held that recovery sought to be made from the salary of the employees on the ground of alleged overstay in service on the basis of age assessed or considered, despite the fact that the employee has worked during the period of alleged overstay could not be made.

21. In Sahib Ram v. State of Haryana this Court has held that even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retiral dues in the monetary benefit available to the employee.

22. As noted hereinearlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the service book of the respondent. They ought to have deleted the initial date of birth based on the matriculation certificate if the appellants were of the view that the affidavit sworn by the respondent was correct and the date of birth appearing in the matriculation certificate must be found to be incorrect, it is needless to say that the affidavit sworn by the respondent must Page No.# 14/22

be on the basis of documents produced by the respondent to show that the date of birth entered in the service book initially was incorrect. Instead, the appellant had not issued any notice of retirement of the respondent on 28-2- 2002, which was the date for retirement of the respondent on his attaining superannuation i.e. on the basis of the date of birth shown in the matriculation certificate. On the other hand, the appellant allowed the respondent to work and got works from him and paid salary. Only for the first time, the appellant took note of two dates of birth after he had completed two years from the date of his actual date of retirement.

23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years' salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement.

24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent.

25. In Kailash Singh v. State of Bihar this Court observed that the employer State would not be entitled to recover the salary paid in excess after the due date of superannuation. In our view, this decision was practically based on the concession made by the State before this Court.

Page No.# 15/22

26. Again in Hari Singh v. State of Bihar this Court held that since the Government had never put the employee on notice to indicate that the date of birth as entered in the service book was incorrect though it could have done so and since no notice had been given to the employee concerned for accepting a date of birth other than the one entered in the service book, the order of retirement could not be sustained. From the aforesaid decision, it is evident that it was the duty of the State to put the employee on notice about his date of retirement and not having done so, the appellant was not entitled to recover the excess amount paid to the respondent.

27. A further argument was advanced by the learned counsel for the parties before the High Court as well as before us on the applicability of Rule 96 of the Bihar Finance Rules for settlement of dispute regarding the date of birth. In view of our discussions made hereinabove and in view of the fact that we have accepted the observations of the Division Bench of the High Court that since the appellant had allowed the respondent to work beyond his due date of superannuation without raising any objection and in the absence of misrepresentation and fraud to be attributed to the respondent, it is not necessary for us in the peculiar facts and circumstances of the case to go into the question of interpretation of Rule 96 of the Bihar Finance Rules which is kept open for decision in an appropriate case.

28. Before parting with this order, we may refer to a decision of this Court strongly relied on by the learned counsel for the appellant, namely, Radha Kishun v. Union of India. Learned counsel for the appellant relying on this decision sought to argue that even if the respondent had worked after his due date of superannuation without having any objection from the appellant, the appellant was entitled to deduct the amount already received by the respondent from his retiral benefits. This case, in our view, is clearly distinguishable from the present case. In Radha Kishun case, there was no dispute as to the date of retirement of the appellant in that appeal, as there was no controversy in the date of birth of that appellant. There was only one date of birth mentioned, and Page No.# 16/22

he had not retired on the basis of his date of birth so entered. Therefore, he had wrongly extended his service beyond the date of his superannuation. But in the present case, there were two dates of birth recorded in the service book of the respondent. Therefore, there was a clear confusion in the mind of the respondent as to whether the appellant had accepted his corrected date of birth as entered in his service book when admittedly the authorities concerned did not serve any notice of retirement on the basis of the initial entry of date of birth in his service book.

29. It should also be kept in mind that the respondent might have expected that the second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any mala fide intentions to continue his service, beyond his date of retirement, we are of the view that the decision in Radha Kishun v. Union of India would not be applicable in the facts of the present case."

18. In the instant case as already stated herein above, the date of birth entered in the Service Book was 20.04.1957. The allegation of misrepresentation as could be seen from the affidavit of the respondent No. 3 is totally misconceived taking into account that the petitioner, at the time of her entry into the service, had duly placed both the Indian School Certificate as well as the affidavit of the father and on the basis of the affidavit of the father, the respondent authorities entered the date of birth as 20.04.1957. Periodically, as would be seen from the Service Book, which has been produced by the learned counsel appearing on behalf of the respondent No. 3, there are verifications made and recorded to that effect that the Service Book was verified and found to be correct. At no stage during the service career the retirement of the petitioner, the concerned respondent authorities had issued any notice on Page No.# 17/22

retirement on the basis of the petitioner's date of birth as mentioned in the Indian School Certificate. On the other hand, the respondent authorities allowed the petitioner to work and got work from her and paid salary. It was only after the petitioner had retired that the concerned respondent authorities that too after a period of one year has elapsed took note of the two dates of birth and have resorted to the action impugned in the instant proceeding. The allegation of siphoning is also completely misconceived inasmuch as the respondent authorities permitted the petitioner to continue beyond 30.04.2014 and the petitioner till her retirement on 30.04.2017 duly rendered service.

19. Now referring to the judgment of the Supreme Court in the case of Pandey Jagdishwar Prasad (supra) and more particularly paragraph No. 23, this Court is therefore of the opinion that the petitioner having worked during the period without raising any objection from the side of the respondent authorities and the respondent authorities have got work done by the petitioner, this Court does not think it proper and reasonable at this stage to allow deduction from the retiral benefits, the amount received by the petitioner as salary for the period from 01.05.2014 to 30.04.2017.

20. This Court further would like to refer to the judgment of the Supreme Court rendered in the case of State of Punjab and Others Vs. Rafiq Masih (White Washer) and Others, reported in (2015) 4 SCC 334. In the said judgment, the question before the Supreme Court related to as to whether the monetary benefits which accrued upon the employees upon a mistake committed by the Competent Authority in determining the emoluments payable could be recovered. It was observed that when the excess unauthorized payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a Page No.# 18/22

long duration of time, it would be iniquitous to make any recovery. It was further observed that interference because of an action is iniquitous, must really be perceived as, interference because the action is arbitrary. While the Supreme Court in paragraph No. 13 of the said judgment observed that if a mistake of making a wrongful payment is detected within 5 years it would be open to the employer to recover the same in the case of an employee being in service but in respect to employees who are about to retire or have retired, it was observed in paragraph No. 16 that a retired employee or an employee about to retire is a class apart from those who have sufficient service to their credit, before their retirement inasmuch as at retirement, an employee is past his youth, his needs are far in excess of what they were when he was younger and despite that, the employee's earnings have substantially dwindled (or would substantially be reduced on his retirement). With that perspective, the Supreme Court observed that the recovery would be iniquitous and arbitrary if it is sought to be made after the date of retirement, or soon before retirement. The Supreme Court further observed that the period within one year from the date of superannuation, in the considered view of the Supreme Court, should be accepted as the period during which the recovery should be treated as iniquitous, and therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an employee, as arbitrary, if the order is sought to be made after the employee's retirement, or within one year from the date of his retirement on superannuation. This aspect of the matter was further clarified in paragraph No. 18 wherein the Supreme Court as a ready reference summarized the following situations where recovery by employers, would be impermissible in law. Paragraph No. 18, being relevant, is quoted herein below:

"18. It is not possible to postulate all situations of hardship which would Page No.# 19/22

govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or Group C and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."

21. For the purpose of the instant case we are concerned with sub-para (ii) of Paragraph No.18 which stipulates that recovery from the retired employees, or employees who are due to retire within one year, of the order of recovery would be impermissible in law.

22. At this stage, it may not be out of place to refer to another judgment of the Supreme Court which was placed by Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent No. 3, i.e., the judgment of the Supreme Court rendered in the case of High Court of Punjab and Haryana and Others Vs. Page No.# 20/22

Jagdev Singh, reported in (2016) 14 SCC 267 wherein clause (ii) of paragraph No. 18 of the judgment in the case of Rafiq Masih (White Washer) (supra) was clarified. A perusal of paragraph No. 11 of the said judgment would clearly show that the said judgment has no application to the present case. Paragraph No. 11 of the said judgment is quoted herein below:

"11. The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking."

23. A perusal of the said paragraph No. 11 would show that the principle enunciated in Proposition (ii) of paragraph No. 18 of Rafiq Masih (White Washer) (supra) would not apply to be a situation where the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded and in consequence thereof, the officer furnished an undertaking while opting for the revised pay scale and as such the Supreme Court in the case of Jagdev Singh (supra) held that the said officer was bound by the undertaking.

24. It would be seen that the respondent authorities permitted the petitioner to continue with her work and got work from her and paid salary without any objection as envisaged under law. It was only after her retirement at the time of processing her pension papers, that too after one year from her retirement that the respondent authorities have raised the issue for recovery of the salary for the period from 01.05.2014 to 30.04.2017. The said action as already stated herein above is iniquitous and arbitrary and accordingly the said actions are Page No.# 21/22

interfered with. Consequently, it is declared that the respondent authorities would not be entitled to recover the salary for the period from 01.05.2014 to 30.04.2017.

25. The findings of this Court would not be complete without taking into consideration the submission of Mr. K. Gogoi, the learned counsel to the effect that by virtue of Rule 95 of the Assam Services (Pension) Rules, 1969 and the Office Memorandum dated 01.02.1992, the amount paid in excess due to overstay can be recovered. A perusal of Rule 95 as well as the Office Memorandum dated 01.02.1992 states about overstay beyond the period of superannuation. But the present case is not a case of overstay beyond the period of superannuation. It is a case where as per the Service Book, the petitioner retired on the date of superannuation, i.e. on 30.04.2017. Further, the judgment of the Supreme Court in Pandey Jagdishwar Prasad (supra) and Rafiq Masih (White Washer) (supra) mandates no recovery in the circumstances as in the present case.

26. The next question which arises as to what relief the petitioner is entitled to. As it be seen that the Note under Service Rule 8 of the FR & SR clearly stipulates that the Head of the Office should record the date of birth in the Service Book of a non-gazetted government servant on his initial appointment with reference to the birth certificate. However, in the instant case, it was not done on the basis of the Indian School Certificate. It was rather done on the basis of an affidavit filed by the father of the petitioner. There has been no document placed before this Court to corroborate that the date of birth recorded in the Indian School Certificate was incorrect except an affidavit sworn by the father of the petitioner which is on record. Although this Court has directed that the excess amount paid for 3 years to the petitioner as salary cannot be Page No.# 22/22

recovered from the petitioner, but makes it clear that for fixing the retirement benefits, the period of 3 years in respect of which salary was received by the petitioner cannot be taken into consideration and the petitioner would be entitled to fixation of retirement benefits as from the date of her superannuation, i.e., on 30.04.2014. The conclusion so arrived herein is based upon the observation made by the Supreme Court in Paragraph No. 30 of the judgment in the case of Pandey Jagdishwar Prasad (supra). The said paragraph No. 30 is quoted herein below:

"30. There is another aspect in this matter. Although we have directed that the excess amount paid for two years to the respondent as salary cannot be recovered from the respondent, but we make it clear that for fixing the retiral benefits, the period of two years in respect of which salary was received by the respondent cannot be taken into consideration and the respondent would be entitled to fixation of retiral benefits as on the date of his superannuation i.e. 28-2-2002."

27. For the reasons mentioned above, the writ petition stands allowed subject to the directions made herein above. There will be no order as to costs.

28. The record so produced by Mr. K. Gogoi, the learned counsel appearing on behalf of the respondent No. 3 be returned forthwith by the Court Master.

JUDGE

Comparing Assistant