Sameer Ahemad Son Of Shri Islam ... vs State Of Rajasthan ...
2023 Latest Caselaw 1114 Raj/2

[2023/RJJP/001107]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Writ Petition No. 13222/2020

Sameer Ahemad Son Of Shri Islam Ahemad, Aged About 60
Years, Resident Of Jheelda Ki Dhani, Udaipur Gilariya, Village
Khoh Nagoriyan, Jagatpura Road, Jaipur (Raj.)
                                                                   ----Petitioner
                                    Versus


1.       State of Rajasthan, Through Additional Chief Secretary,
         Department Of Home, Government Secretariat, Jaipur.
2.       Director General Of Police, Ats And SOG Rajasthan,
         Ghatgate, Near Ankur Cinema, Jaipur (Raj.).
3.       Additional Director General of Police, ATS And SOG
         Rajasthan, Ghatgate, Near Ankur Cinema, Jaipur (Raj.).
4.       Superintendent of Police ATS, Rajasthan, Ghatgate, Near
         Ankur Cinema, Jaipur (Raj.).
5.       Superintendent       of   Police      (Administration)        CID   (CB)
         Rajasthan, Jaipur, Police Headquarter, Lal Kothi, Jaipur
         (Raj.).
6.       Director Pension Welfare Department, Jyoti Nagar, Jaipur
         (Raj.).
                                                                 ----Respondents

For Petitioner(s)         :     Mr.Iliyas Khan, Adv.
For Respondent(s)         :     Mr.Rupin Kala, GC with Mr.P.S.Naruka,
                                Adv.
                                Mr.Prashant Vijay, Adv. for Mr.Rohit
                                Choudhary, Dy.G.C.



          HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                     Order
01/02/2023

The instant writ petition has been filed by the petitioner

challenging the order dated 21.10.2020, whereby the respondents

have revised the fixation of pay of the petitioner on attaining the

[2023/RJJP/001107] (2 of 8) [CW-13222/2020]

age of superannuation and further recovery was also made

effective from 31.07.2017 against the excess payment made to

the petitioner.

The petitioner has also prayed for grant of release of

pension, gratuity, PF and other retiral benefits, as per the pay

fixation made prior to issuance of the order dated 21.10.2020.

The petitioner also claims that the respondents be directed

to refund the amount of salary for the Month of June, 2020 i.e.

Rs.75287/-, which was wrongly deducted by the respondents and

the petitioner further prays for grant of salary for the month of

July, 2020 and grant compensation of Rs.5,00,000/-.

Learned counsel for the petitioner submitted that the

petitioner was working in a Police Department as Constable since

his initial appointment on 18.10.1982 and the petitioner came to

be retired on attaining the age of superannuation by issuance of

the order dated 16.06.2020 with effect from 31.08.2020 and his

date of birth was shown as 15.08.1960.

Learned counsel submitted that after issuance of the order

dated 16.06.2020, the respondents issued an order on 28.07.2020

(Annex.3), whereby a clerical mistake of date of birth of the

petitioner was rectified by treating it as 15.05.1960 instead of

15.08.1960.

Learned counsel submitted that amended superannuation

order dated 29.07.2020 was issued by the respondents, whereby

the date of superannuation of the petitioner was treated as

31.05.2020.

Learned counsel for the petitioner submitted that the

petitioner was allowed to work up to 20.07.2020 and as such the

[2023/RJJP/001107] (3 of 8) [CW-13222/2020]

respondents have wrongly issued the order dated 21.10.2020 by

passing an order of recovery.

Learned counsel further submitted that the petitioner had

never misrepresented the Authorities about his date of birth and

on their own will if they continued him to work up to 20.07.2020

and further they treated his date of birth as 15.08.1960, then the

petitioner cannot be penalized by the respondents by way of

issuing order of recovery and as such they are required to pay all

the benefits to the petitioner.

Learned counsel for the petitioner submitted that though

interim order was passed by this Court on 10.11.2020, while

issuing notices, a direction was also given to release the

provisional pension, however, since the recovery was already

effected before passing the interim order, the respondents are

required to pay back the aforesaid amount.

Learned counsel for the petitioner has placed reliance on the

following judgments:-

1. State of Punjab Vs. Rafiq Masih reported in (2015) 4

SCC 334;

2. Thomas Daniel Vs. State of Kerala & Ors. (Civil Appeal

No.7115/2010) decided on 02.05.2022;

3. D.B. Special Appeal Writ No.75/2017 (Ajmer Vidhyut

Vitran Nigam Ltd. & Ors. Vs. Ramesh Chandra Joshi) dated

19.05.2017;

4. S.B.Civil Writ Petition No.5553/2014 (Mukan Singh

Rajpurohit Vs. State of Rajasthan & Ors.) decided on

12.04.2017.

[2023/RJJP/001107] (4 of 8) [CW-13222/2020]

Learned counsel, on the strength of these judgments,

submitted that if illegal recovery has been made from the salary of

the petitioner and there has been no misrepresentation on his

part, then the respondents cannot with hold the payment of actual

working days of the petitioner and further no recovery can be

made.

Per contra, Learned Govt. Counsel Mr.Rupin Kala appearing

for the respondents submitted that actual date of birth of the

petitioner is 15.05.1960 and as such he has drawn attention of

this Court towards (Annex.1) i.e. appointment order of the

petitioner, where his date of birth is mentioned as 15.05.1960.

Learned counsel for the respondents further submitted that

the petitioner himself had submitted an application on

20.07.2020, which has been filed as Annex.R-1 along-with the

reply, whereby the petitioner had admitted that wrong date of

birth was recorded in his service record i.e. 15.08.1960, while his

actual date of birth was 15.05.1960 and as such the petitioner

himself had requested that the salary which the petitioner had

drawn for the month of June, 2020 of Rs.75287/- was required to

be deposited by him and accordingly, the petitioner prayed that

the revised Post Retiral Benefits may be issued in his favour.

Learned counsel for the respondents further submitted that

the Authorities inadvertently issued the order of superannuation of

the petitioner and further the petitioner also mislead the

Authorities at the time of recording date of birth in the service

record and as such no undue benefit may be allowed to the

petitioner.

[2023/RJJP/001107] (5 of 8) [CW-13222/2020]

Learned counsel for the respondents further submitted that a

misc. application has been filed, wherein documents have been

placed on record and amended order dated 21.10.2020 has been

issued and the salary of the petitioner has been revised, as per

the option given by the petitioner on 01.01.2016.

Learned counsel submitted that the grievance raised by the

petitioner has been remedied by the Department itself and as such

the relief, which has been claimed by the petitioner has been

given by the Department itself.

Learned counsel for the respondents further submitted that

the Post Retiral Benefits of the petitioner are required to be

released by the Pension Department and as such the

Administrative Department i.e. the Police Department has already

sent relevant papers to the Pension Department for release of his

pension on 02.09.2020 and as such due payment of Post Retiral

benefits will be given to the petitioner by the Pension Department.

I have heard the submissions made by learned counsel for

the parties and perused the material available on record.

This Court finds that the date of birth of the petitioner is

15.05.1960 and the same is evident from the time of giving first

appointment to the petitioner.

This Court further finds that the date of birth of the

petitioner was inadvertently recorded in service record as

15.08.1960 and the same will not confer any right in favour of the

petitioner to claim that he ought to have been continued in

services on the basis of his date of birth, to be taken into account

from 15.08.1960 till 30.08.2020.

[2023/RJJP/001107] (6 of 8) [CW-13222/2020]

This Court further finds that the petitioner, after his

retirement, has filed an application before the Authorities that he

is prepared to deposit the amount of salary, which he had drawn

for the Month of June, 2020 and as such the petitioner voluntarily

deposited the amount of salary which he had wrongly drawn for

the month of June, 2020 and as such Rs.75,287/- was voluntarily

deposited by the petitioner.

The submission of learned counsel for the petitioner that

since the petitioner was not at fault and the respondents effected

the recovery against the petitioner and as such the said money is

required to be refunded to him, suffice it to say by this Court that

if the petitioner himself has claimed his date of birth to be

15.05.1960, the petitioner ought to have been retired accordingly

on 31.05.2020 and he would not have continued in the Month of

June, 2020.

This Court further finds that the petitioner since has given in

writing that the recovery may be effected against him, it would be

too late in a day to say that the recovery order, which was passed,

is required to be set aside by this Court.

This Court, accordingly finds that the prayer of the petitioner

to refund the amount cannot be accepted.

The reliance placed by learned counsel for the petitioner that

the judgments passed by the Apex Court has laid down the

parameters, where recovery orders have been set aside as in the

case of State of Punjab Vs.Rafiq Masih (supra) and the case of

the petitioner does not fall in any of the exception, where recovery

orders can be set aside.

[2023/RJJP/001107] (7 of 8) [CW-13222/2020]

The reliance placed by learned counsel for the petitioner on

the judgment passed by the Apex Court in the case of Thomas

Daniel Vs. State of Kerala & Ors. (supra), this Court after going

through the judgment passed by the Apex Court finds that the

issue before the Apex Court was in respect of recovery made after

10 years of retirement of an employee on the ground of wrongly

given increment to the said employee. This Court finds that the

said judgment has no application in the present facts of the case.

Learned counsel for the respondents also places reliance on

the judgment passed by the Apex Court in the case of Chandi

Prasad Uniyal & Ors. Vs. State of Uttrakhand & Ors. reported

in 2012 (5) SLR 607 (S.C.). Learned counsel on the strength of

the said judgment submitted that if there is a wrong fixation or

grant of wrong benefit on account of some mistake of the

delinquent employee, on a representation being made, such

recovery can always be effected from the amount, which has been

paid to such employee.

The grievance in respect of the petitioner with regard to

release of post retiral benefits, needs to be taken care by this

Court. This Court finds that if the petitioner has been retired on

attaining the age of superannuation even with effect from

15.05.2020, the respondents are required to pay post retiral

benefits without any further delay.

The amended orders, have been placed on record for fixing

the petitioner in proper pay scale and further his pension papers

are said to be sent by the Police Department to the Pension

Department. The Pension Department is now required to

[2023/RJJP/001107] (8 of 8) [CW-13222/2020]

immediately process the claim of the petitioner for grant of post

retiral benefits.

This Court accordingly, disposes of the present writ petition

with a direction to the respondent-Pension Department to

immediately process the papers of the petitioner relating to grant

of post retiral benefits and necessary exercise may be undertaken

within a period of five weeks, from the date of receipt of certified

copy of this order.

This Court makes it clear that if the respondents would not

finalize the claim of the petitioner of post retiral benefits within a

period of five weeks from the date of receipt of certified copy of

this order, the petitioner will be entitled for interest @ 6 % per

annum, after a period of five weeks till payment is made to him.

(ASHOK KUMAR GAUR),J

Monika/42

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