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2002 DIGILAW 1337 (PAT)

Krishna Narayan Banerjee v. State Of Bihar

2002-12-02

SHASHANK KR.SINGH

body2002
Judgment 1. Present writ application has been filed for quashing of Annexure-8, by which a letter has been written by the Deputy Secretary, Finance Department to the Deputy Superintendent, Secretariat Press, Gulzarbagh, Patna dated 20.4.2002, by which it has been contended that the petitioner retired in the pay scale given therein be treated from 31.7.1992 and as far as recovery of the extra payment for two years for which the petitioner had further worked it has been stated that decision would be taken subsequently. 2. Contention on behalf of the petitioner is that as the petitioner has been allowed to work till .31.7.94 at this belated stage when he had already superannuated in 1994 after nearly eight years it was not open to the Respondents to change the date of birth and make the petitioner superannuate from a date which was not the date, actually on which, he had superannuated. It has further been contended that there was no question of another recovery or consideration for the same, as he had been paid his salary only for a period when he had discharged his duties in the Government Press. 3. To appreciate the submissions of counsel for the petitioner, certain facts are required to be gone into. Petitioner had entered into service on 6.10.1952 as he had not passed matriculation at that time on his own declaration, his age at the time of entering into service was recorded as 18 years which would be borne out from Annexure-A to the counter affidavit which is a declaration by the petitioner himself. Subsequent therein a show cause was given to the petitioner that there have been interpolation in his service book and 1936 has been shown as his date of birth, as such, he should show cause as why a proceeding be not initiated against him. Though it transpires that no proceeding was finally initiated against the petitioner as it is contended by learned counsel that the petitioner moved the Finance Department and by a letter of Deputy Director of Finance Department dated 13.2.1992 as contained in Annexure-4, by which it was communicated that as the medical certificate and the matriculation certificate of the petitioner go to show that his date of birth is 26.7.36, as such, any allegation of interpolation does not stand to reason. In view of aforesaid facts, it has been contended by petitioners counsel that now today the respondents cannot raise a bogey of petitioners actually retiring two years earlier to the aforesaid date on which he had actually superannuated. 4. Learned State counsel, on the other hand, states that though a departmental proceeding had not been initiated but the department has not closed the matter, as again in 1994 by Annexure-5 the same Finance Department had written to the Superintendent, Government Press, Gulzarbagh vide Annexure-5 dated 27 October, 1994 stating therein that as a decision for initiating a departmental proceeding is pending against the petitioner he be given only provisional pension. It has further been contended that as far as accepting his date of birth as per the matriculation certificate cannot be accepted, as he had passed the matriculation examination subsequent to entering into service and his own declaration which were there at the time of entering into service as contained in Annexure-8, it would be quite clear that he had himself accepted as being 18 years when he had entered into service. Today he cannot be allowed to turn back and take benefit of a document which he has subsequently obtained in view of his passing of matriculation examination in which he had himself filled up his date of birth. The aforesaid facts get support from the Rule 96 of Bihar Finance Rules. 5. After considering the rival contentions made by the petitioner and the Respondents and the judgment of the Supreme Court in the case of Radha Kishan V/s. Union of India & Ors. as reported in 1997(2) PLJR (SC) 129 specifically in paragraph-3 in which it has been held "..........we are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from abovesaid date when admittedly he was to retire on May, 31, 1991.lt would be an obvious case of absolute irresponsibility on the part of the officer concerned in the Establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances, we do not find any illegality in the action taken by the authorities in refusing to grant the benefits." 6. In view of the same I have no doubt to hold that the petitioner is not entitled to any benefit beyond the period of his superannuation taking into consideration his entry Into service as per his own undertaking at the time of entering into service being 18 years of age. His pensionary benefit and other benefits are to be calculated taking the aforesaid period of service as his due service. However, this Court holds, as in the aforesaid judgment, which has been relied above, payment for the period of working subsequently is not as a right but in the present case as the petitioner has already been paid for the aforesaid period and retired in 1994, today after eight years, the Court cannot direct for any recovery for the payment of the salary which has been paid beyond his period of his superannuation for which, work has been taken from him. As such, the last part of Annexure-8 which goes to show that the extra period for which the petitioner has worked beyond his period of superannuation a final decision is required to be taken, perhaps today this Court fears that the Respondents cannot go back and take any other decision but to accept the fact that for additional period he had been allowed to work for which he has been paid and that is a concluded fact. 7. In the result, this writ application stands disposed of and the petitioners pensionary benefit and other benefit regarding enhancement be paid for the period for which it has been given from back date subsequent to certain recommendation. If it has to be paid, has to be paid by calculating the petitioners date of superannuation as 31.7.1992 which should be done and without recovering the amount which has been paid to him for a further period of two years which would not be counted as a period of service. If it has to be paid, has to be paid by calculating the petitioners date of superannuation as 31.7.1992 which should be done and without recovering the amount which has been paid to him for a further period of two years which would not be counted as a period of service. If any dues remain to be paid to the petitioner, the same shall be calculated and paid to the petitioner within a period of four months from the date of receipt/production of a copy of this Order. Disposed of.