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1995 DIGILAW 531 (PAT)

Mubarak Hussain v. State of Bihar

1995-09-18

SUDHANSU JYOTI MUKHOPADHAYA

body1995
Order S.J. Mukhopadhyaya, J. - The petitioner has filed this writ petition challenging the District Order No. 773/95 dated 26th April 1995 (annexure-2) by which it has been ordered to recover the excess amount from the post retirement benefit of the petitioner, which has been paid to the petitioner since 1st January 1995. 2. Admittedly, the petitioner was functioning under the respondent State in its Home (Police) Department. He was initially appointed as a literate constable on 24.1.1959 and thereafter to the next higher post of Sub-Inspector of Police on 10th June 1976. The petitioner was transferred from one place to another place and was allowed to continue in the service upto 22nd April 1995. The last posting of the petitioner was at Nawadah Police station in the district of Bhojpur. Since 23rd April 1995, the respondents stopped taking work from the petitioner and on 26th April 1995, the respondents came out with the impugned Annexure-2. 3. It is stated by the counsel for the petitioner that earlier one District Order No. 670/93 was issued by which the petitioner was made to retire from 31st January 1995, which was not given effect. Thereinafter they have come out with the District Order No. 775/95 dated 26th April 1995 (Annexure-2). 4. Counsel for the petitioner submitted that the petitioner having performed his duties upto 22.4.1995, any salary drawn by the petitioner for such work cannot be recovered by the respondents. It is further contended by the counsel for the petitioner that the petitioner cannot be made to retire from service from the date earlier than that of the date of retirement, in terms with the date of birth as shown in the service book of the petitioner. 5. In spite of time granted to the respondents, no counter affidavit has been filed by them. It appears from the impugned Annexure-2 that the date of birth of the petitioner has been recorded as in the Service Book 24th January 1937. It is on that basis, the petitioner was allowed to continue in service. Subsequently, it came to the notice of the respondents that though the petitioner was Matriculate and in his Matriculation certificate, the date of birth was recorded as 1st January 1936 but suppressing the same, the petitioner had shown his date of birth as 24th January 1937. It is on that basis, the petitioner was allowed to continue in service. Subsequently, it came to the notice of the respondents that though the petitioner was Matriculate and in his Matriculation certificate, the date of birth was recorded as 1st January 1936 but suppressing the same, the petitioner had shown his date of birth as 24th January 1937. In this background, the respondents remained in confusion for certain period and thereafter come out with District Order No. 670/93 retiring the petitioner with effect from 31st January 1995. Subsequently, taking into account that the date of birth of the petitioner in the Matriculation Certificate is 1st January 1936, it was held that in fact, the petitioner should have been allowed to continue in the service of the respondent State upto 31st December 1993 and should have been made to retire on that date (31st December 1993). In the aforesaid background, by Annexure-2 it has been ordered to recover the salary and other allowances which were paid to the petitioner since 1st January 1994 onwards from the post retirement benefits of the petitioner. 6. Having heard the counsel for the parties and taking into note the reasons shown in the impugned order, as contained in Annexure-2, according to me, the respondents cannot recover any amount from the post retirement benefits of the petitioner with respect to the period the petitioner has actually performed his duties, if the respondents for one or the other reason allowed the petitioner to perform his duties upto 22nd April 1993 even if the same was illegal, the petitioner having performed such duties and having received salary for the same, no recovery with respect to such payment can be made from the petitioner. 7. Further the date of birth of the petitioner recorded in the service book is 24th January 1937. Till the date, the petitioner remained in service of the respondent State, no correction of date of birth as recorded in the service book was made by the respondents. In this back-ground, after retirement of the petitioner, the respondents cannot treat the date of birth of the petitioner as 1st January 1936 as recorded in the Matriculation Certificate which was never acted upon during the service tenure of the petitioner. 8. In this back-ground, after retirement of the petitioner, the respondents cannot treat the date of birth of the petitioner as 1st January 1936 as recorded in the Matriculation Certificate which was never acted upon during the service tenure of the petitioner. 8. For the reasons stated above, I set aside the District Order No. 775/95.The date of retirement of the petitioner is to be treated to be 31st January 1995 and on the basis of date of birth recorded in the service book of the petitioner (24th January 1937), for the purpose of post retirement benefit. No recovery be made from the post retirement benefits of the petitioner. The post retirement benefits of the petitioner be released in his favour within a period of three months from the date of receipt/production of copy of this order. 9. With the aforesaid observation/direction, this writ petition is allowed.