In the year 1953 the petitioner passed Matriculation Examination from Gurdon High School, Nalbari. A certificate was issued by the school as the original was not issued by the Gauhati University at that time. The petitioner joined the training course for Sericulture Demonstrator in the Sericulture and Weaving Department, Assam in the year 1957. Thereafter, he was appointed as Sericulture Demonstrator in the year 1961. While he joined the service, he submitted the certificate issued by the school and it is stated that he has submitted the original certificate issued by the University in the year 1962. This original certificate was submitted and the prayer was made for correction of age in the service book because the certificate issued by the school reflected his age as 18 years as on 1st March, 1953 but the d certificate issued by the University shows his age as 15 years as on 1st March, 1953. The petitioner during his service in the Sericulture Department applied for the post of Soil Conservation Demonstrator (Junior) through proper channel. He was appointed to that post on 31.12.63. There was a gradation list for promotion and there was some mistake and according to Matriculation Certificate, he was to retire from service on and from 31.3.96. Rule 95 of the Assam Service Pension e Rules, 1969 provides as follows : “95. Procedure-With a view to ensure completion of pension records and documents in time to avoid the possibility of any delay in the commencement of pension each Head of department and office of the Administrative Department, where there is no Head of department or office, shall have a superannuation statement prepared on the 1st of January in each year showing a list of all officers, gazetted or non-gazetted, ho will attain the age of superannuation in course of the next calendar year ie, between 1st January to 31st December of next year. As soon as the list is prepared an intimation should be sent to every such officer due to retire during the next year drawing his attention to his anticipated date of retirement and the provisions of Rules 184 to 188 to enable him to make a formal application for pension one year in advance of the date of his anticipated retirement. The list should also include the names of officers who are on temporary deputation to other department/Government or on foreign service and intimation should similarly be issued to such officer as well as the Head of the Department or foreign employer under whom he is serving temporarily. If no intimation is, however, issued to the officer this shall not in any way change his date of retirement and shall not confer on the Government servant any right to remain in service beyond the date on which he is required to retire. One copy each of the annual superannuation statement prepared should be sent to the Accountant General, Assam, Administrative Department and Finance Department respectively.” 2. In this particular case, no such procedure was followed by the Department but in the end of 1995 the petitioner was asked to furnish the original certificate of Matriculation, that was done but his pay etc was held up on the allegation that the petitioner manipulated the age due to which he over stayed in service after attaining the age of retirement on 1.3.93. The Department did not raise this allegation during 32 years of his service in the Department and only at the fag end of his service life this allegation was made. The petitioner was made to work without pay and allowances since December, 1995 until 31.3.96, the date of his retirement. After that he retired from service on 22.5.96, the petitioner received a show cause notice dated 20.5.96 under Rule 9 of the Assam Civil Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India asking him to show cause as to why penalty should not be inflicted on him as provided under Rule 7 of the Rules, 1964. The show cause notice was served on the petitioner after his retirement and this show cause notice does not reflect that any departmental proceeding was initiated before the retirement. Rule 21 (a), (b) and (c) of the Pension Rules, 1969 provides as follows : “21. The show cause notice was served on the petitioner after his retirement and this show cause notice does not reflect that any departmental proceeding was initiated before the retirement. Rule 21 (a), (b) and (c) of the Pension Rules, 1969 provides as follows : “21. The Governor of Assam reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specific period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Govt, if in a departmental or judicial proceeding the pensioner is found guilty of grave misconduct or negligence during the period of his service, including, service rendered upon re-employment after retirement provided that - (a) Such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; Explanation-The continuation of the proceeding after the final retirement of the officer shall be autmatic under sub-rule (a) of Rule 21 and no fresh decision of the Governor and/or the appointing authority nor any show cause notice to the person concerned shall be necessary. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Govt but also in all other cases. The powers under Rule 21 shall be exercisable not only in case of causing pecuniary loss to Govt but also in all other cases. (b) such departmental proceeding, if not instituted while the officer was in service whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Governor of Assam; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor of Assam may direct and in accordance with procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) no such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution and (d) the Assam Service Commission shall be consulted before final orders are passed. Explanation - For the purpose of this rule - (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the officer or pensioner, or if the officer has been placed under suspension from an earlier date, on such date, and” 3. Rule 21 was amended on 16.8.89. By this amendment, one explanation as quoted above has inserted in the bottom of Rule 21. In (1984) 2 GLR 488 (GK Phukan vs. State of Assam & others) it was stated that there remains no master and servant relationship in between the retired person and the Govt to continue the departmental proceeding after retirement which was instituted during the service period of the employee. In 1988 (2) GLJ106 (Reazuddin Ahmed vs. State of Assam) it was again pointed out that departmental proceeding after retirement of the person shall continue if the proceeding was instituted before the retirement and it was further stated by this Court that the right of the Governor to withhold or withdraw the pension or a part of it whether permanent or for specific period in connection with the right of the Governor for recovery of the pensionary or part of any pecuniary loss caused to the Govt. The Govt can exercise this tight under Rule 21 only for the purpose of recovery of the pecuniary loss caused to the Govt and for no other purpose. After the amendment the continuation of the proceeding was provided if the proceeding is initiated before the retirement, it is automatic and no show cause notice is necessary and powers under Rule 21 shall be exercisable not only .in case of loss to the Govt but also in all cases. 4. In the instant case, the case of petitioner is squarely covered by Rule 21 (b) of the said Rules, 1969 as the petitioner admittedly retired on 31.3.96 and the show cause was not issued before the retirement of the petitioner. Further, if the proceeding is stated to be initiated against a retired person such proceeding can be instituted with the sanction of the Governor and no proceeding can be initiated against a retired person for any event which took place more than 4 years back. Further, the statement made in this writ application have not been controverted by the respondents by filing any counter affidavit and if that is not done it will be deemed to be admitted, (see AIR 1964 SC 962 (Rowjee vs. State of AP & others) and AIR 1992 SC 2582 (Naseen Banu vs. State of UP). In both the cases the Supreme Court pointed out that if the statement made in the writ petition remain uncontroverted or not contradicted the Court should proceed on the basis of averment not controverted deeming them to have been admitted. 5. The show cause notice as against the petitioner is dated 20.5.96, Annexure 10 to the writ application. That is quoted below : “You are hereby required to show cause under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 read with Article 311 of the Constitution of India as to why any of the penalties prescribed in Rule 7 of the aforesaid Rules, should not be inflicted on you on the following charges based on the statement of allegations attached herewith. 1. That at the time of your recruitment to the post of Soil Conservation Demonstrator (Junior) during January, 1964 you produced the Matriculation Certificate bearing serial number 1303 to the effect that you passed Matriculation Examination under Roll Gau, number 767 during 1953. 1. That at the time of your recruitment to the post of Soil Conservation Demonstrator (Junior) during January, 1964 you produced the Matriculation Certificate bearing serial number 1303 to the effect that you passed Matriculation Examination under Roll Gau, number 767 during 1953. Thereafter, you rose to the rank of Soil Conservation Ranger and you are continuing in that rank till date. 2. That after careful verification it has come to the light that one Sri Nayeb Ali passed the Matriculation Examination under Roll Gau, number 767 in favour of whom the Matriculation Certificate bearing serial number 1303 was issued by the Gauhati University during 1953. Your name is Shri Nayebur Rahman which does not tally with the name of the certificate holder. It makes it transparent that you are not a Matriculate and you cheated the Govt by producing the certificate of another person to get the job of Soil Conservation Demonstrator (Junior). You are therefore charged with criminal activity, cheating, unbecoming conduct and impart nation on your part. 3. That the age recorded in the aforesaid Matriculation Certificate was 18 years. You, to derive undue service length tampered chemically the said age of the figure 18' and made the same 15 in place of 18'. Thus you have illegally overstayed in service for 3 years. You are therefore charged with manipulation of record, suppression of fact, cheating to Govt most unbecoming conduct and forgery. You should submit your written statement in defence within ten days from the date of receipt of this communication provided you do not intend to inspect the documents which have relevance with the issues under inquiry. In case you intend to inspect the documents you should write to the undersigned for the same within 7 days from the date of receipt of this communication and submit your explanation thereafter within 10 days from the date of completion of the inspection. Your written statements stating whether you desire to be heard in person should be submitted to the undersigned within the period specified above." 6. That was accompanied with the statement of allegations and the list of witnesses and the list of documents. So, that enquiry is deemed to have been initiated only on 20.5.96. Your written statements stating whether you desire to be heard in person should be submitted to the undersigned within the period specified above." 6. That was accompanied with the statement of allegations and the list of witnesses and the list of documents. So, that enquiry is deemed to have been initiated only on 20.5.96. Under the Rules of 1964 as the proceeding is deemed to be initiated on 20.5.96 and as such this proceeding is against the provisions of Rule 21 of the Pension Rules and the same cannot be allowed to continue. Accordingly, Annexure 10 quoted above shall stand quashed and the petitioner shall be entitled all retiral benefit. The petitioner also shall be entitled to salary from December, 1995 to 31.3.96 inasmuch as the service of the petitioner was utilised during this period and if the salary is not paid it will be violative of Article 23 of the Constitution of India. 7. Accordingly, this writ application is allowed. No cost. 8. I have heard Sri D. Chowdhury, learned Advocate for the petitioner and learned Govt Advocate for the State of Assam