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2007 DIGILAW 569 (GAU)

Mitradhar Barkakati v. State of Assam

2007-08-24

A.B.PAL

body2007
JUDGMENT A.B. Pal, J. 1. Heard the learned Counsel for the parties. 2. The three petitioners herein have retired from Provincialised Schools. The first and the second petitioners retired on 28.2.1998 and the third on 31.3.1999 at the age of 58 years. Thereafter, they continued in service till the age of 60 years and the period of 2 (two) years has been deemed to be service spent on re-employment by virtue of Office Memorandum dated 12th June 1997. The relevant part regarding re-employment appears in Para-2 of the said memorandum which is quoted below: Accordingly, it has been decided that the employees of provincialised High School/Higher Secondary School/High and Higher Secondary Madrassa who continued as teachers/employees on the date of receiving grant-in-aid and who retired from service beyond 58 years upto 60 years will be deemed to have retired on superannuation from the due date of superannuation and the period of overstay beyond this date will be treated as period of re-employment and pensionary benefits will be extended to those employed accordingly. During the period of such re-employment, the remuneration of such employees will be as under: Last pay and allowances as on the due date of superannuation with non-drawal of the monthly pension/pensionary benefit. 3. The petitioners have thus served 2 years more after attaining the age of 58 years and they were paid during this period the last pay and allowances which they had drawn on the day of superannuation till they attained the age of 60 years. By virtue of the said memorandum they came to be entitled to pension and other pensionary benefits which they would have got counting their service upto 58 years. But by the impugned order dated 5th August 2002 of the Deputy Secretary to the Government of Assam, the petitioners have been asked to refund the salary and allowances drawn by them during the period of re-employment, till attaining the age of 60 years, which is a condition precedent for granting pension etc. The petitioners have contended that this direction to refund the salary and allowances drawn by them during the period of their re-employment is absurd, illegal, arbitrary and contrary to the Office Memorandum dated 12th June 1997. 4. The petitioners have contended that this direction to refund the salary and allowances drawn by them during the period of their re-employment is absurd, illegal, arbitrary and contrary to the Office Memorandum dated 12th June 1997. 4. In support of the aforesaid contention, the petitioner has placed reliance on a decision of the Apex Court in Civil Appeal No. 8854 of 1996 which deals with a similar controversy following enactment of the Assam Secondary Education (Provincialisation) Act, 1977, followed by Assam Secondary Education (Provincialised) Rules, 1982. The limited question which was agitated in the said proceedings before the Apex Court related to the teachers and other employees who have completed 58 years on 1.10.1997, when the said Act was brought into force, but were allowed to continue. In the last but one para of the Judgment of the Apex Court, a copy of which has been placed at Annexure-B, the following observation has been made: In the interest of the Teachers who had remained in service after the appointed day and were yet to complete the age of 60 years, the State Government itself has resolved to treat them as Government Teachers entitled to pension on attaining the age of 58 years but the salary paid to such teachers could not be re-covered from them. (Emphasis supplied) 5. It would appear from the above Office Memorandum dated 12th June 1997, that following the said decision of the Apex Court the position of such teachers and other employees has been crystallized by clearly providing that this period of overstay of 2 years in respect of which the salaries paid to them cannot be recovered as per direction of the Supreme Court, should be treated as the period of employment and during such period their pay and allowances shall be as they were drawing on the day they completed 58 years of age. Thus, neither in the decision of the Apex Court, nor in the Office Memorandum dated 12th June 1997, there is anything to take a view that the petitioners who have continued the period of re-employment of 2 years after attaining the age of 58 years are required to refund the salaries and allowances drawn by them for that period in order to draw the pension to which they are entitled by virtue of their retirement on attaining the age of 58 years. 6. 6. In the counter affidavit filed by the Director of Secondary Education, the 3rd respondent herein, no reasonable ground has been advanced in support of the impugned order asking the petitioners to refund the pay and allowances they have drawn during the period of re-employment. 7. The upshot of the above discussion based on the decision of the Apex Court and the Office Memorandum dated 12th June, 1997 is that the petitioners are entitled to draw pension for the services rendered by them on attaining the age of 58 years and they are not required to refund the pay and allowances drawn by them during their period of re-employment. The impugned order being unsustainable in law is hereby set aside and quashed. 8. It needs to be made clear that if any recovery has been made in terms of the impugned order, the official respondents shall return the same to the petitioners while releasing their pension and other benefits. This exercise shall be completed within a period of 2 months after receipt of a copy of this Judgment and Order. No cost.