Ghulam Mohammad Lone vs Ut Of Jk And Ors
2022 Latest Caselaw 619 j&K/2

                                                                    S. No. 13
                                                                    Regular List
    IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                         WP(C) NO. 2096/2020

Ghulam Mohammad Lone                                        ...Petitioner(s)

Through: Mr. Mohammad Amin Khan, Adv.

                                  Vs.

UT of JK and Ors.                                          ...Respondent(s)

Through: MsAsifaPadroo, AAG.

CORAM:
 HON'BLE MR JUSTICE SANJEEV KUMAR, JUDGE

                               ORDER

18.05.2022

Oral:

01. The case set up by the petitioner in this petition is that he was initially engaged as Daily Wager by the Jammu and Kashmir Forest Corporation ["the Corporation"] in the year 1987 and after performing his duties continuously and to the best satisfaction of the respondents, he was regularized on 31st March, 1996. At the time of preparation of the Service Book, the date of birth of the petitioner was recorded by the competent Authority as 15th February, 1964, whereas the actual date of birth of the petitioner as recorded in the School Leaving Certificate is 15 th February, 1956. The petitioner was unaware of the error that had crept in while recording his date of birth on the Service Book. He, thus, continued in service till February, 2016. It is the contention of the petitioner that noticing the discrepancy in the date of birth recorded in the service, he himself approached the respondents and apprised them that as per the School Leaving Certificate his actual date of birth was 15 th February, 1956 and not 15th February, 1964, as was erroneously recorded in the Service Book.

02. On being informed by the petitioner, the respondents acted in the matter and vide SFC Order No. 85of 2018 dated 15th March, 2018, accorded ex-

post-facto sanction for retirement of the petitioner on his superannuation w.e.f. 28th February, 2014. So far so good, but the grievance of the petitioner is that, while retiring him retrospectively w.e.f. 28 th February, 2014, the Managing Director of the Corporation also directed the recovery of salary which the petitioner had drawn by overstaying in service for 22 months. It is this part of the impugned order dated 15 th March, 2018, which is assailed in this petition.

03. The impugned Order has been assailed by the petitioner, primarily, on two grounds: -

i. That the impugned order has been passed at the back of petitioner and without affording him an opportunity of being heard;

ii. That the wrong recording of date of birth in the Service Book was an act of respondents and, therefore, the petitioner could not have been punished for such act.

04. Elaborating the submissions, learned counsel for the petitioner submits that the error in recording the date of birth in the Service Book was committed by the respondents and not by the petitioner and, therefore, his overstaying in service cannot be attributed to any fault or mischief on the part of the petitioner. He submits that the petitioner has performed his duties for a period of 22 months and has been paid legitimate salary and, thus, there is no legal justification to recover the same that too after the petitioner has retired from service. Reliance is placed by learned counsel for the petitioner on the Judgment of this Court in the case of AbdulAziz Shah vs. Union of India and Ors. reported in 1998 SLJ, 189.

05. Per contra, the stand of the respondents, as can be culled out from the reply affidavit filed by the respondents, is that the petitioner was aware that his actual date of birth is 15th February, 1956, yet he overstayed in service for about 22 months and did not deliberately inform the department. It is, thus, submitted that petitioner deliberately kept silent and overstayed in service when he was not entitled to be in service after 28th February, 2014. It is the further stand of the respondents that with a view to redress the grievance of the petitioner against the impugned

order, the matter was taken up with the Finance Department and as per the opinion of the Finance Department, it was decided to recover the salary drawn by the petitioner during the period of his overstay in service.

06. Having heard learned counsel for the parties and perused the material on record, I am of the view that the writ petition of the petitioner deserves to be allowed so as to quash the impugned order dated 15 th March, 2018, to the extent of recovery of the salary of 22 months drawn by the petitioner after his actual date of superannuation i.e., 28th February, 2014. It is not the case of the respondents that erroneous date of birth came to be recorded in the Service Book of the petitioner due to some fraud or mischief played by the petitioner. It was an error committed by the concerned officer who prepared the Service Book upon regularization of services of the petitioner. This error, as is claimed by the petitioner as also is the stand of the respondents, remained undetected till the petitioner himself approached the respondents and submitted proof of his date of birth i.e., School Leaving Certificate, which indicated the date of birth of the petitioner as 15th February, 1956. This application made by the petitioner appears to have activated the respondents. Respondents realized their mistake and, therefore, passed the impugned order dated 15th March, 2018, retiring the petitioner retrospectively w.e.f. 28th February, 2014. However, it was late in the day to correct the error and by that time the petitioner had already overstayed in service for about 22 months. It is also not in dispute that the petitioner has been paid his legitimate salary for the aforesaid 22 months. In these circumstances a question that now arises is whether the respondents are justified to recover this amount paid to the petitioner for overstaying in service when such overstaying in service is not attributed to the petitioner, but was owing to clerical mistake which was committed by the respondents at the time of preparation of the Service Book. Had this mistake not been brought to the notice of the respondents by the petitioner, the petitioner would have retired somewhere in the year 2024. This, however, was prevented by timely application of the petitioner.

07. Be that as it may, since the petitioner has performed his duties for all these 22 months after his ex-post-facto superannuation, he cannot be denied the salary for the period he has actually performed his duties and, therefore, this Court sees no reason or justification to order recovery from the Pension or the 6th Pay Commission arrears as is sought to be done by the respondents in terms of the impugned order dated 15 th March, 2018.

08. In the case of Abdul Aziz Shah vs. Union of India and Ors, a Single Bench of this Court was confronted with the same situation and what was held in the aforesaid Judgment in paragraph 7 reads thus:-

"... To address myself to the question its right perspective it is relevant to mention here that the constitution envisages an egalitarian social order and to ensure implementation of such order, it is necessary to provide equal opportunity in respect of employment and allowing someone to continue for a longer period, is likely to create a disorder and such omission and commission of an authority may cause frustration to the members of the service. That apart, the service rules are to be adhered to by the authority strictly, so that no one is allowed to continue in the active service beyond the period prescribed under statute and if he is allowed to continue as is true of the petitioner he is entitled to salary but to no other benefit pensionary or otherwise, because his continuation is in derogation to the rules and if such service is reckoned for pensionary benefits it will defeat the rules, thus the service rendered by the petitioner beyond 58 years cannot confer any benefit on him other than the salary and the question is answered accordingly..."

The case of the petitioner is even better than the case of the writ petitioner in the aforesaid case.

09. For the foregoing reasons this petition is allowed and the impugned order dated 15th March, 2018, passed by the Managing Director, State Forest Corporation is set aside to the extent it orders recovery of the 22 months salary drawn by the petitioner after the date of his ex-post-facto

superannuation i.e., 28th February, 2014, from the 6th Pay Commission and D.A. arrears as also from his retiral benefits. The quashment of the impugned order to the extent aforesaid shall not be construed that the petitioner is entitled to other benefits on the basis of his extended service beyond superannuation. For all practical purposes and for the payment of post retiral benefits, the petitioner shall be deemed to have retired on 28 th February, 2014.

10. Disposed of along with connected CM(s). in the aforesaid terms.

(SANJEEV KUMAR) JUDGE SRINAGAR 18.05.2022 "Shamim Dar"

Whether the Order is reportable? Yes/No Whether the Order is speaking? Yes/No