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2006 DIGILAW 367 (GAU)

Debendra Deb Barma v. State of Tripura

2006-04-17

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. The Petitioner entered into the service on 1.2.1980 as Cook-cum-Massaichi in Katlamara High School. The post was in the category of Group-D. According to the Rules prevailing in the State, the retirement age of Group-D employees is 60 years while those of Group-A, B and C is 58 years. The date of birth of the Petitioner is 2.11.1944 and, therefore, his date of retirement was 30.11.2004 (as the last day of the month of birth is the date of retirement). On 9.6.2004 by a memorandum (Annexure-1), the Headmaster of the Katlamara High School, the third Respondent herein, under whom he was working informed him that he would retire from service in the afternoon of 2.11.2004. On 2.11.2004, the Headmaster released him though as per Rule he was to retire on the last day of the month. However, to his surprise he received a memorandum dated 28.10.2004 (Annexure-3) from the Director of School Education, the second Respondent herein, that due to revision of pay, the pay scale of the post of Cook-cum-Massalchi was revised to Rs. 3050-5190/- and as per provision of the said Revision of Pay Rules, 1999, the Petitioner became a Group-C employee. Accordingly, he was to retire from service on attaining the age of 58 years on 30.11.2002. But the Petitioner rendered service beyond his date of retirement from 1.12.2002 to 30.9.2004 drawing pay and allowances for that period. He was, therefore, directed to show cause as to why the entire amount drawn by him as pay and allowances for the said period should not be recovered from his pensionary benefit. Aggrieved, the Petitioner has filed the present writ petition putting under challenge the said memorandum. 2. I have heard Mr. A.K. Bhowmik, learned senior counsel for the Petitioner and Mr. T.D. Majumder, learned Addl. Govt. Advocate for the State Respondents. 3. The grievance of the Petitioner as canvassed in the writ petition is that he entered into the service as Cook-cum-Massalchi, which was a Group-D post. It was never communicated to him that after the revision of pay in the year 1999, the post was re-classified as Group-C because of his revised scale of pay. He retired from the service from the same post and, therefore, he had no reason to think that the post was ever upgraded. It was never communicated to him that after the revision of pay in the year 1999, the post was re-classified as Group-C because of his revised scale of pay. He retired from the service from the same post and, therefore, he had no reason to think that the post was ever upgraded. Even the third Respondent, who is the Headmaster of the High School, informed him by memorandum at Annexure-1 that he was to retire from service after attaining the age of 60 years. Accordingly, he was released on 2.11.2004. This being the factual position, the Petitioner cannot be held liable for serving extra period beyond 58 years of age. Another submission of the Petitioner is that as per the Industrial Disputes Act, a workman like Cook-cum-Massalchi is to retire from service after attaining the age of 60 years. Considering from this factual aspect the impugned order dated 28.10.2004 intending to recover the pay and allowances drawn by him for the period beyond 58 years of age is not legally sustainable. 4. The official Respondents have not disputed in the counter-affidavit that the post of Cook-cum-Massalchi was originally a Group-D post and that incumbent to such a post was to retire from service only after attaining the age of 60 years. The contention, inter alia, advanced in the counter-affidavit is that because of the revision of pay, the said post was re-classified as Group-C post and every Group-C employee must retire after attaining the age of 58 years. Considering from that angle the Petitioner should not have continued after he attained the age of 58 years and, therefore, he was liable to refund the pay and allowances he had drawn for the entire period beyond 58 years. As regards the retirement of workmen under the Industrial Disputes Act, the contention is that an educational institution is not an industry and, therefore, a Cook-cum-Massalchi cannot be said to be a workman in order to derive the benefit of retirement age from the said Act. 5. From the above pleadings and the rival submissions the admitted position that has winced to the fore is that the Petitioner entered into service as Cook-cum-Massalchi and retired from service from that post only without any promotion during long tenure of 24 years. Admittedly, the post of Cook-cum-Massalchi was a Group-D post and retirement age of a Group-D employee is 60 years. Admittedly, the post of Cook-cum-Massalchi was a Group-D post and retirement age of a Group-D employee is 60 years. Nothing has been pleaded by the official Respondents that after the any revision in 1999 when the post was re-classified due to upward pay revision, the Petitioner was ever informed that he would superannuate on attaining the age of 58 years. It is very much apparent that even the third Respondent, who is the Headmaster of the institution did not know about the correct age of retirement of a Cook-cum-Massalchi and because of his ignorance, he issued a notice to the Petitioner informing him that he would retire from service on attaining the age of 60 years. As a matter of fact, the Petitioner was released by the said Respondent only on 2.11.2004. Thus this factual situation cannot in any way hold the Petitioner responsible for continuing in service after he attained the age of 58 years. If anybody was responsible for such continuation, the Respondents only are to be blamed. As the Petitioner has served as Cook-cum-Massalchi after he attained the age of 58 years, he received his remuneration for the works done by him and as he cannot be put at fault for such continuation, the question of recovery of the pay and allowances for the said extra period does not at all arise. The impugned order is, therefore, illegal and unjustified. 6. For the reasons aforementioned, this writ petition has merit and the same is allowed quashing the impugned memorandum dated 28.10.2004 whereby the Petitioner has been asked to show cause why his pay and allowances for the extra period should not be recovered from his pensionary benefits. 7. At this juncture, it is submitted by Mr. Bhowmik, learned senior counsel for the Petitioner that because of pendency of this proceeding the Petitioner has not been given even the provisional pension or other pensionary benefits for more than 1 ½ years. If this position is correct, the act of the Respondents to withhold the provisional pension is contrary to the Pension Rules, which provide that immediately after retirement every employee shall be given provisional pension. The Respondents are, therefore, directed to grant provisional pension to the Petitioner within a period of 15 (fifteen) days from the date of passing of this order till his regular pension is granted. The Respondents are, therefore, directed to grant provisional pension to the Petitioner within a period of 15 (fifteen) days from the date of passing of this order till his regular pension is granted. Failure to release the provisional pension within the said period will entail interest on the entire accumulated amount of pension @ 12% per annum, which shall be recovered from the pay and allowances of the officer responsible for such failure. 8. It is made clear that the Cook-cum-Massalchi being Group-C employee the age of retirement is to be taken as 58 years and accordingly, the Petitioner shall be entitled to the pensionary benefits calculating his date of retirement after attaining the age of 58 years. No cost.