Trailokya Baruah vs The State Of Assam And 7 Ors
2025 Latest Caselaw 11 Gua

Gauhati High Court

Trailokya Baruah vs The State Of Assam And 7 Ors on 1 April, 2025

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GAHC010038322024




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

                        Case No. : WP(C)/1209/2024

         TRAILOKYA BARUAH
         S/O- LATE DINO RAM BARUAH, R/O- VILL.- DOOMDOOMIA, P.O.
         BALISATRA, P.S. BATRADAVA, DIST. NAGAON, ASSAM, PIN- 782122.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM, DEPARTMENT OF HEALTH SERVICES, DISPUR, ASSAM-781006.

         2:THE DIRECTOR OF HEALTH SERVICES
         ASSAM
          HENGRABARI
          GHY-781036.

         3:THE JOINT DIRECTOR OF HEALTH SERVICES
          NAGAON
         ASSAM

         4:THE MEDICAL AND HEALTH OFFICER-I
          I/C UPPER DOOMDOOMIA MPHC
          NAGAON
         ASSAM

         5:THE SUB-DIVISIONAL MEDICAL AND HEALTH OFFICER
          DHING BPHC
          DHING
          NAGAON
         ASSAM

         6:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)
                                                                                 Page No.# 2/14

             MAIDAMGAON
             BELTOLA
             GHY
             ASSAM
             PIN- 781019.

            7:THE TREASURY OFFICER
             NAGAON
            ASSAM

            8:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
             FINANCE DEPARTMENT
             DISPUR
             GHY-6

Advocate for the Petitioner   : MR B D DAS, MR H K SARMA,MR. D THAOSEN,MR. H R DAS

Advocate for the Respondent : GA, ASSAM, SC, FINANCE,SC, AG,SC, HEALTH




                                    BEFORE
                        HONOURABLE MR. JUSTICE KARDAK ETE

                                        JUDGMENT

Date : 01-04-2025

Heard Mr. B.D. Das, learned Senior Counsel assisted by Mr. J. Lotha, learned counsel for the petitioner. Also heard Mr. D. Borah, learned Standing Counsel for the Health Department as well as Mr. R.K. Talukdar, learned Standing Counsel appearing on behalf of the Principal Accountant General (A&E), Assam.

2. By filing this Writ Petition, the petitioner prays for a direction to the respondent authorities to pay the pension and other retireal benefits such as gratuity, GPF, etc. without any deduction of pay and allowances for the period from 01.06.2020 to 31.08.2022, on account of overstay in the service. Petitioner also challenges the action of the respondent authorities in seeking recovery of an amount of Rs.23,31,514/- (Rupees twenty three lakh thirty one thousand five hundred fourteen) only.

3. The case, in brief, is that the petitioner was appointed as the Pharmacist in the Manja Primary Health Centre, in Karbi Anglong District on 10.10.1984 on temporary basis. The Page No.# 3/14

service of the petitioner was confirmed w.e.f 10.10.1984, vide order dated 12.09.1988. The Service Book of the petitioner was prepared by the authority at his initial place of posting, after submission of his school certificates and other documents. The petitioner was transferred from his initial place of posting at Karbi Anglong to Upper Doomdomia Primary Health Centre situated in the District of Nagaon in the same capacity and posted against a newly created post on 24.09.1987. Thereafter, the petitioner was released from Manja Primary Health Centre, Karbi Anglong vide order dated 08.02.1989, and accordingly, he joined in his new place of posting at Upper Doomdomia Primary Health Centre in the district of Nagaon.

4. It is contended that in the month of September, 2022, a verbal communication was received by the petitioner from the respondent No.3, i.e. the Joint Director of Health Services that there was a discrepancy as regards his date of birth recorded in his Service Book and the date of birth as per the school certificate and admit card submitted by the petitioner at the time of joining his employment. It was informed to the petitioner by the respondent authority that the date of birth recorded in his Service Book was 01.07.1963 whereas in the certificates and admit card submitted by the petitioner, his age was shown as 16 years 10 months and 00 days as on 1st of March, 1977 and accordingly as per the date recorded in the H.S.L.C certificates and admit card, the date of birth of the petitioner should be 01.05.1960 instead of 01.07.1963 as recorded in the Service Book. It was informed by the respondent No.3 that in view of the date of birth shown in the school certificates and admit card, the petitioner ought to have retired on 31.05.2020, and as such, the process of disbursal of retirement benefits to the petitioner cannot be initiated unless and until the petitioner undertakes that he would have no objection if the pay and allowances made to him during his overstayed period be adjusted towards his retirement benefits.

5. The petitioner, upon receipt of the said communication had agreed that there was a discrepancy as regards his date of birth recorded in the Service Book and his H.S.L.C Certificate, prayed that steps be taken to remove the discrepancy for smooth implementation of the process of payment of pension.

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6. It is the specific stand of the petitioner that the said communication had to be issued by the petitioner under coercion and pressure employed upon him by the respondent No.3. Thereafter, the petitioner was asked to submit the original School Certificate and Admit Card for verification and for initiation of pension. It is the further case of the petitioner that the petitioner had lost the original school certificate and admit card for which he had applied for duplicate Admit Card and H.S.L.C Certificates through an application dated 31.10.2022 before the Secretary, Board of Secondary Education, Assam enclosing therewith the Police Report and the News Paper declaration. The Competent Authority of the Board of Secondary Education, Assam issued duplicate Admit Card and Pass certificate of H.S.L.C Examination pertaining to the petitioner which was submitted by the petitioner before the respondent No.3.

7. Subsequent thereto, on 19.04.2023, the Joint Director to Health Services, Nagaon issued a communication to the petitioner informing him that as the date of birth is on 01.05.1960 as per the school certificate, his date of retirement from service is on 31.05.2020 and the petitioner was directed to submit his pension papers etc. for onward transmission to the higher authority. The petitioner was also directed to handover the charge to the M&HOI, i/c Upper Doomdomia PHC, if not done. Further it was also mentioned in the said communication that if no information is received from the office, the petitioner will have to retire from service on 31.05.2020. The petitioner accordingly on 25.01.2023 handed over the charge to the Medical Officer, Upper Doomdomia PHC and further mentioned that he had retired from service on 31.05.2020. The SDM & HO, Dhing PHC, Nagaon issued a release order dated 01.02.2023 whereby the petitioner was released from Upper Doomdomia PHC reflecting the date of retirement as 31.05.2020.

8. It is contended that the petitioner had strong apprehension that the respondent No.3 would initiate the process for recovery of his overdrawn pay and allowances for the period w.e.f 01.06.2020 to 30.08.2022 from his retirement benefits and in the event of such steps taken, it would be in total violation of the Government of Assam guidelines based on Government of Assam Notification No. FAP/SC/9/76/5 dated 29.04.1976. Accordingly, the petitioner has approached this Court seeking a writ of mandamus thereby prohibiting the Page No.# 5/14

respondents from recovery/adjustment of the salary drawn by the petitioner from 01.06.2020 to 31.08.2022 and for a further direction upon the respondent authorities to pay the petitioner his pension GPF, Gratuity and other benefits, if any, at the earliest without any deduction from the salary, the petitioner received, i.e. from 01.06.2020 to 31.08.2022, being WP(C) No.2277/2023.

9. This Court vide order dated 03.05.2023, disposed of the said writ petition providing opportunity to the petitioner to submit a representation before the Director of Health Services for finalization of pension and pensionary benefits as well as also for release of the provisional pension to the petitioner. The petitioner was also given liberty to place the law declared by the Supreme Court in the case of State of Bihar & Others vs. Pandey Jagdishar Prasad, reported in (2009) 3 SCC 117; and the State of Punjab and Others vs Rafiq Masih [White Washer], reported in (2015) 4 SCC 334 as well as the Office Memorandum dated 27.01.2022, issued by the Principal Secretary to the Government of Assam, Finance Department following the judgment of the Supreme Court in the case of Rafiq Masih (White Washer) (supra). It further directed that upon representation being filed by the petitioner, the respondent authorities shall consider the case of the petitioner by taking into account the law declared by the Supreme Court as well as the Office Memorandum dated 27.01.2022 and to pass a reasoned order within 5 (five) weeks from the date of submission of the representation by the petitioner.

10. Mr. B.D. Das, learned Senior Counsel for the petitioner submits that the petitioner submitted the judgment and order dated 03.05.2023, passed by this Court on 15.05.2023, before the Director of Health Services, Govt. of Assam. However no consideration has been made by the respondent authorities as directed by this Court. He submits that the petitioner received the letter dated 01.06.2023, from the office of the respondent No.6, which was addressed to the Treasury Officer, Nagaon, whereby the Pension Payment Order of the petitioner was forwarded to the Treasury Officer, Nagaon, mentioning the pension amount of Rs.31,280/- (Rupees thirty one thousand two hundred eighty) only in favour of the petitioner. The petitioner received another letter dated 01.06.2023, from the Senior Accounts Officer of the office of the respondent No.6, whereby it has directed the Treasury Officer, Nagaon for Page No.# 6/14

payment of Rs.12,07,718/- (Rupees twelve lakh seven thousand seven hundred eighteen) only, in favour of the petitioner against the DCRG amount. However an amount of Rs.23,31,514/- (Rupees twenty three lakh thirty one thousand five hundred fourteen) only has been shown as other Government dues/ overpayment of pay and allowances and accordingly an amount of Rs.11,23,796/- (Rupees eleven lakh twenty three thousand seven hundred ninety six) only has been shown to be recovered from the arrear and future reliefs of the petitioner. The petitioner by a representation dated 17.07.2023, again submitted the judgment and order dated 03.05.2023, passed in WP(C) No.2277/2023, before the respondent No.6 and prayed for cancelation of the impugned recovery of Rs.23,31,514/-, as reflected in the order dated 01.06.2023 and pay his pension and other retiral benefits, without making any deduction.

11. He submits that the petitioner has also submitted a representation before the respondent Nos.2 & 3 on the same day stating, inter alia, not to recover any amount from his retiral benefits with a prayer to consider his representation dated 15.05.2023, as per directions passed by this Hon'ble Court. He submits that even after having knowledge of the judgment and order dated 03.05.2023, the respondent authorities, particularly the respondent No.2 did not pass any reasoned order on the representation of the petitioner, as directed by this Hon'ble Court, thereby depriving the petitioner from receiving his due pension and other retiral benefits, except the benefit of leave encashment. The petitioner again submitted a representation on 23.08.2023 for release of his pension and other retiral benefits, without any recovery or deduction from his pension and other retiral benefits.

12. Mr. B.D. Das, learned Senior Counsel submits that instead of considering the representation of the petitioner, as directed by this Court and taking into account of the law laid down by the Hon'ble Supreme Court, the respondent No.3 vide letter dated 05.09.2023, submitted the details of the petitioner's service book, admit card of the HSLC examination along with copy of the judgment and order dated 03.05.2023, before the respondent No.2 for onward submission of the petitioner's case to the Finance Department for approval of recovery of overdrawal amount of Rs.23,31,514/-. He submits that the said letter has been issued without disposal of the petitioner's representation dated 15.05.2023, as per the Page No.# 7/14

direction passed by this Court. He submits that although vide letter dated 20.09.2023, the respondent No.6 has informed the respondent No.3 that the petitioner has submitted a representation for cancellation of recovery of Rs.23,31,514/- only from the DCRG amount for his overstaying period as Pharmacist, no consideration has been made by the respondent authorities till date, thereby, the petitioner has been deprived of his pension and other pensionary benefits, without the fault of the petitioner.

13. Mr. B.D. Das, learned Senior Counsel submits that the petitioner was working as a Pharmacist, which is a Grade-III post under the Department of Health Services, Govt. of Assam and he has been allowed to work till 31.08.2022. The respondent authorities have recorded the date of birth of the petitioner as 01.07.1963 in his service book, at the time of his initial appointment and when it is subsequently detected that the petitioner's date of birth, as per the certificate is 01.05.1960, which was known to the respondent authorities and there is no fraud or manipulation on the part of the petitioner, the action of the respondent authorities vide letter dated 05.09.2023, seeking recovery of the overdrawal pay and allowances for the period w.e.f. 01.06.2020 to 31.08.2022, from the petitioner's retiral benefits is arbitrary and is in violation of the law laid down by the Hon'ble Supreme Court as well as the Office Memorandum dated 27.01.2022, issued by the Principal Secretary to the Govt. of Assam, Finance Department, whereby it has been directed to restrain deduction/recovery of any amount for the period of overstay, after retirement from the pensionary benefits. He submits that initially the petitioner was paid the provisional pension. However, the same has also been stopped. Therefore, the action of the respondent authorities seeking deduction of an amount of Rs.23,31,514/- only from the retiral benefits, for his overstay period as Pharmacist for a period w.e.f. 01.06.2020 to 31.08.2022, may be set aside and quashed and direction may be issued to the respondent authorities to release the pension and pensionary benefits to the petitioner without deduction from the retiral benefits.

14. Mr. B.D. Das, learned Senior Counsel for the petitioner has relied on the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Others vs. Rafiq Masih [White Washer], reported in (2015) 4 SCC 334, wherein the Hon'ble Supreme Court has Page No.# 8/14

held as under:

"18. It is not possible to postulate all situations of hardship, which would 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(iii) Recovery from 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."

15. Per contra, Mr. D. Borah, learned Standing Counsel for the Health Department, submits that as reported by the Joint Director of Health Services, Nagaon, vide his Letter No. Jt.DHS(N)/Pharmacist/ 2024/3536 dated 06.04.2024, the matter of the lapses made on overpayment of pay and allowances to the petitioner, retired Pharmacist was not done intentionally as the Service Book of the incumbent was opened when he was in service in Karbi Anglong district. In the said Service Book, the date of birth of the petitioner has been recorded as 01.07.1963.

16. Mr. Bora, learned Standing Counsel, submits that on 26/12/2022, the petitioner furnished his Admit Card and HSLC Pass Certificate through a letter addressed to the Jt. DHS, Nagaon and informed that his actual date of birth as per his Admit Card and HSLC pass certificate is 01.05.1960, but his date of birth was wrongly recorded as 01.07.1963 on his Service Book while he was serving at Manza MPHC in Karbi Anglong district. Accordingly, as per the date of birth i.e. 01.05.1960 recorded in the Admit Card and HSLC pass certificate of the petitioner, his date of retirement was 31.05.2020 and as such the petitioner ought to have retired on 31.05.2020. But the petitioner did not inform his actual date of birth prior to 31/05/2020 and he overstayed in his service till 31/08/2022 and overdrawal his pay and allowances from June, 2020 till the month of August, 2022. He further submitted that said overstay in service and Page No.# 9/14

overpayment of pay and allowances of the petitioner has occurred due to the wrong date of birth recorded in the service Book of the petitioner as stated above and also for not taking any initiative to correct his date of birth in his service Book and also for not informing his actual date of birth at proper time, though it was within his knowledge.

17. Mr. Bora, learned Standing Counsel, submits that the petitioner enjoyed undeserved benefit of extended service and caused injustice to his immediate junior. On the account of the overstay of the petitioner in service for a period of 27 months i.e. from June, 2020 till the month of August, 2022 a huge amount of Rs. 23, 31,514/- (rupees twenty three lakhs thirty one thousand five hundred fourteen) only was siphoned as overdrawal of the salary out of the public exchequer. Thereupon, the concerned respondent wrote a letter to the Government in Health & Family Welfare Department, vide dated 17.04.2024 along with its relevant records/documents seeking necessary views/suggestions/ instructions for final settlement of the overpayment of pay and allowances amounting to Rs. 23,31,514/- only which was overdrawn by the petitioner, with effect from June, 2020 to August, 2022, so as to enable regular pension in respect of the petitioner.

18. Mr. Bora, submits that the matter of final settlement of the overpayment of pay and allowances and regular pension in respect of the petitioner whose date of birth (DOB) was wrongly entered in the service Book, is to be disposed under the provision laid down in Personnel Department's Office Memorandum vide No. AAP.230/86/5 dated 01/02/1992, which states that if any officer is found overstaying in service beyond the date of his superannuation no proposal for regularization of the overstayed period shall be entertained and the amount drawn during such overstay period shall be recovered from the D.C.R.G. of the said officer. Therefore, writ petition is liable to be dismissed.

19. I have considered the submissions advanced by the learned counsel for the parties and perused the materials available on record.

20. The petitioner was appointed as a Pharmacist which is a Grade-III post in the Health Department, Govt. of Assam. The date of birth entered in the service book of the petitioner is 01.07.1963, whereas the school certificate and the admit card of the petitioner clearly shows as 01.05.1960. The petitioner has been allowed to serve dill 31.08.2022, on the basis of the Page No.# 10/14

date of birth recorded in the service book of the petitioner whereas the actual date of retirement ought to have been 01.06.2020, on the basis of his actual date of birth being 01.05.1960.

21. The issue to be considered in the present case is as to whether the respondent authorities can recover the pay and allowances paid to the petitioner from his retiral benefits for a period from 01.06.2020 to 31.08.2022, on account of the overstay in service.

22. The Hon'ble Supreme Court in the case o Rafiq Masih [White Washer] (supra), has held as under:

"7. Having examined a number of judgments rendered by this Court, we are of the view, that orders passed by the employer seeking recovery of monetary benefits wrongly extended to employees, can only be interfered with, in cases where such recovery would result in a hardship of a nature, which would far outweigh, the equitable balance of the employer's right to recover. In other words, interference would be called for, only in such cases where, it would be iniquitous to recover the payment made. In order to ascertain the parameters of the above consideration, and the test to be applied, reference needs to be made to situations when this Court exempted employees from such recovery, even in exercise of its jurisdiction under Article 142 of the Constitution of India. Repeated exercise of such power, "for doing complete justice in any cause" would establish that the recovery being effected was iniquitous, and therefore, arbitrary. And accordingly, the interference at the hands of this Court.

8. As between two parties, if a determination is rendered in favour of the party, which is the weaker of the two, without any serious detriment to the other (which is truly a welfare State), the issue resolved would be in consonance with the concept of justice, which is assured to the citizens of India, even in the preamble of the Constitution of India. The right to recover being pursued by the employer, will have to be compared, with the effect of the recovery on the concerned employee. If the effect of the recovery from the concerned employee would be, more unfair, more wrongful, more improper, and more unwarranted, than the corresponding right of the employer to recover the amount, then it would be iniquitous and arbitrary, to effect the recovery. In such a situation, the employee's right would outbalance, and therefore eclipse, the right of the employer to recover.

9. The doctrine of equality is a dynamic and evolving concept having many dimensions. The embodiment of the doctrine of equality, can be found in Articles 14 to 18, contained in Part III of the Constitution of India, dealing with "Fundamental Rights". These Articles of the Constitution, besides assuring equality before the law and equal protection of the laws; also disallow, discrimination with the object of achieving equality, in matters of employment; abolish untouchability, to upgrade the social status of an ostracized section of the society; and extinguish titles, to scale down the status of a section of the society, with such appellations. The embodiment of the doctrine of equality, can also be found in Articles 38, 39, 39A, 43 and 46 contained in Part IV of the Constitution of India, dealing with the "Directive Principles of State Policy". These Articles of the Constitution of India contain a mandate to the State requiring it to assure a social order providing justice - social, economic and political, by inter alia minimizing monetary inequalities, and by securing the right to adequate means of livelihood, and by providing for adequate wages so as to ensure, an appropriate standard of life, and by promoting economic interests of the weaker sections.

10. In view of the afore-stated constitutional mandate, equity and good conscience, in the matter of livelihood of the people of this country, has to be the basis of all governmental actions. An action of the State, ordering a recovery from an employee, would be in order, so long as it is not rendered iniquitous to the extent, that the action of recovery would be more unfair, more wrongful, more improper, and more unwarranted, than the corresponding Page No.# 11/14

right of the employer, to recover the amount. Or in other words, till such time as the recovery would have a harsh and arbitrary effect on the employee, it would be permissible in law. Orders passed in given situations repeatedly, even in exercise of the power vested in this Court under Article 142 of the Constitution of India, will disclose the parameters of the realm of an action of recovery (of an excess amount paid to an employee) which would breach the obligations of the State, to citizens of this country, and render the action arbitrary, and therefore, violative of the mandate contained in Article 14 of the Constitution of India.

18. It is not possible to postulate all situations of hardship, which would 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 herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

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

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

(iii) Recovery from 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."

23. In the case of State of Bihar & Others vs. Pandey Jagdishar Prasad reported in (2009) 3 SCC 117, 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 the other was 11.02.1946. The respondent State therein did not correct or delete any of the dates mentioned for the entire period, the employee continued to render service to the State authorities. The employee retired on 29.02.2004, on the basis of the later date entered into the service book. Thereupon vide 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 High Court. The learned Single Judge dismissed the writ petition. On appeal, the Division Bench interfered with the order of recovery sought to be made by the respondent authorities therein and directed refund of the amount already recovered with interest @6% per annum. The matter is carried on appeal to the Hon'ble Supreme Court. The Hon'ble Supreme Court, while upholding the judgment of the Division Bench, held that the employee was allowed to work beyond his due date of superannuation, without raising any objection Page No.# 12/14

and in the absence of misrepresentation and fraud, to be attributable to the employee, the Division Bench was justified in setting aside the recovery of excess amount on account of overstay. The relevant portions of the judgment is reproduced hereunder:

"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.

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 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.

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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."

24. In the present case, as noted above, the petitioner has been allowed to continue in the service up to 31.08.2022, on the basis of date of birth entered/recorded in his service book by the respondent authorities. Although the actual date of birth of the petitioner is 01.05.1960, as per the school certificate and other documents, for which the petitioner ought to have informed the respondent authorities, there is nothing on record to show that the petitioner has done any mischief, fraud or manipulation in entering the wrong date of birth in his service book. The correction of the date of birth has been made in the year 2023, much after the retirement of the petitioner, who had been allowed to work for 27 months, without their being any action on the part of the respondent authorities even to verify the actual date of retirement in terms of the documents available with the respondent authorities.

25. On consideration of the materials and submissions, I find that no specific allegation of fraud or manipulation of the date of birth on part of the petitioner has been made. Although, the petitioner was well aware of his date of birth and the consequential date of retirement, he had rendered his service for a period of 27 months beyond the retirement, as no notice was served to the petitioner releasing him from the service on attaining the age of superannuation. Therefore, although, no fault or misrepresentation could be specifically attributed to the petitioner, in view of the knowledge of the petitioner of his date of birth and his date of retirement on attaining the age of superannuation, no fault can be equally and fully attributable to the respondent authorities either. However, since the petitioner had worked during that period of 27 months, without raising any objection from the side of the respondent authorities and got works done by the respondent, it may not be fair to allow deduction from his retiral benefits, the amount received by him as pay and allowances after his actual date of retirement.

26. Having considered the fact that there was no allegation of fraud or misrepresentation, Page No.# 14/14

which could be attributed to the petitioner, I am of the view that it would be unfair at this stage to deduct the said amount of salary paid to the petitioner. Accordingly, no deduction could be made for that period of 27 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the period of 27 months, after his actual date of retirement without raising any objection by the respondents.

27. In view of the above discussion and observations, I am of the considered view that it would be unfair to deduct the amount of Rs.23,31,514/- (Rupees twenty three lakh thirty one thousand five hundred fourteen) only, the amount of Pay & Allowances paid to the petitioner. Thus, no deduction could be made for the period of 27 months from the retiral dues of the petitioner as he has been allowed to work and was paid salary for his work during the said period of 27 months after his actual date of retirement without raising any objection by the respondents. Accordingly, the decision to deduct/recover and consequential orders for recovery of an amount Rs.23,31,514/- (Rupees twenty three lakh thirty one thousand five hundred fourteen) only for the pay and allowances availed by the petitioner for 27 months, on account of his over stay in the service are hereby set aside and quashed.

28. However, considering that the actual date of retirement of the petitioner was on 01.06.2020, his pensionary and other entitlements be calculated taking the retirement date as on 01.06.2020. It is provided that the pension and other pensionary benefits be released to the petitioner within a period of three (3) months from the date of receipt of copy of this order.

29. Writ petition stands disposed of, accordingly. No order as to costs.

JUDGE

Comparing Assistant