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2008 DIGILAW 682 (GAU)

Siba Prashad Das v. State of Assam

2008-09-11

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. In challenge are the communications dated 13.3.2000 from the Sr. Accounts Officer and the letter dated 16.1.2001 of the Executive Engineer, Public Works Department, Guwahati N.H. Division, Assam, pursuant thereto contemplating recovery of the pay and allowances paid to the Petitioner for the period 1.3.1997 to 28.2.1999 on the purported overstay in service beyond 28.2.1997. 2. I have heard Mr. L.P. Sharma, learned Counsel for the Petitioner and Mr. G. Rahul, learned Standing Counsel, Public Works Department, Government of Assam. None has appeared on behalf of the Accountant General (A&E), Assam. 3. The pleaded case of the Petitioner in short is that he had read up to Class X and did not pass his matriculation examination. With that academic qualification, he having applied-to the Department was appointed as Mohorar on 17.1.1964 in the pay scale of Rs. 50 to Rs. 100. He was eventually promoted to the post of Sub-Engineer and retired from service on 28.2.1999. At the time of his appointment he was aged 23 years having been born in the year 1941. As his date of birth was not recorded at the time of his induction, the Executive Engineer, Public Works Department, Assam, Guwahati N.H. Division, subsequent thereto required him to furnish the necessary particulars bearing thereon. He accordingly submitted his Horoscope and an affidavit affirming his date of birth was 8.2.1941, which accordingly after necessary scrutiny was inserted in his service book. The above authority by his letter dated 16.2.1999 intimated the Assistant Executive Engineer, Public Works Department, Boko N.H. Sub-Division No. II, Boko, about the Petitioner's date of retirement to be 28.2.1999 and the latter was accordingly instructed to release him on that date. It was accordingly done and the Petitioner stood superannuated from service from 28.2.1999. He thereafter submitted his pension papers, which were forwarded to the Respondent No. 4 for necessary scrutiny. This Respondent raised an objection pleading that the Petitioner's service records disclose his date of birth to be 28.3.1939 and that accordingly He should have been retired from 28.2.1997. The said authority, however, noticed that the date of birth initially recorded had been altered to 8.2.1941 and, therefore, requested the Executive Engineer, Public Works Department, Guwahati, N.H. Division, to make necessary investigation into the matter. The said authority, however, noticed that the date of birth initially recorded had been altered to 8.2.1941 and, therefore, requested the Executive Engineer, Public Works Department, Guwahati, N.H. Division, to make necessary investigation into the matter. Subsequent thereto by the impugned letter dated 13.3.2000, the said Respondent, in the above factual premise, left the Executive Engineer with the alternative either to regularize the Petitioner's services for the period of overstay from 1.3.1997 to 28.2.1999 as re-employment with the approval of the Government or to recover the pay and allowances paid to him during that period. Pursuant thereto, the Petitioner was asked to submit his matriculation certification to verify his date of birth. The Petitioner contended that he not having passed the matriculation examination, such a certificate was not available to him. Instead he reiterated his date of birth to be 8.2.1941 on the basis of the horoscope and an affidavit before the departmental authorities. As in spite of the above, recovery of pay and allowances was made for the period 1.3.1997 to 28.2.1999 amounting to Rs. 1,53,225. The Petitioner is thus before this Court for redress. 4. The department through its Chief Engineer in its counter while admitting the Petitioner's date, of appointment as work charge Mohurrir as claimed by him, has admitted that though initially his date of birth was recorded to be 28.2.1939 in his service book it was subsequently changed to 8.2.1941 however, without following the procedure prescribed by law. It has been stated in substance that the recovery of the pay and allowances released to the Petitioner for the period 1.3.1997 to 28.2.1999 has been as suggested by the Accountant General and in terms of the Office Memorandum dated 1.2.1992 of the Government of Assam, Department of Personnel (Personnel A), Assam Secretariat (Civil), Dispur, Guwahati-6. The Petitioner's failure to submit the matriculation certificate has also been pleaded to be a justification for the impugned action. According to the department, it was left with no other option but to cause the deduction in terms of the instructions received from the office of the Accountant General. 5. Mr. Sharma has argued that as the Petitioner had been retired from the service on 28.2.1999 on the basis of his date of birth recorded as 8.2.1941, the question of his over stay does not arise and, therefore, the deduction of pay and allowances is per se illegal, arbitrary and discriminatory. 5. Mr. Sharma has argued that as the Petitioner had been retired from the service on 28.2.1999 on the basis of his date of birth recorded as 8.2.1941, the question of his over stay does not arise and, therefore, the deduction of pay and allowances is per se illegal, arbitrary and discriminatory. The Petitioner not having passed the matriculation examination of his time, he produced the Horoscope and an affidavit in support of his date of birth which were duly scrutinized and acted upon by the departmental authorities to record the same to be 8.2.1941 and, therefore, they are estopped from turning around and take a decision contrary thereto. According to Mr. Sharma, the Petitioner having rendered his services for the period 1.3.1997 to 28.2.1999, and the Respondents having availed the same, the impugned action is patently arbitrary and unconstitutional. In support of his submissions, Mr. Sharma has placed reliance on the decision of the Apex Court in Kailash Singh v. State of Bihar and Ors., (2005) 13 SCC 576 . 6. Mr. Rahul in reply has urged that it. being apparent on the face of the record that the Petitioner's date of birth recorded as 8.2.1939 had been altered, to 8.2.1941 without following the procedure prescribed by law, the deduction made on the basis of the office memorandum dated 1.2.1992 is unassailable. The Petitioner having overstayed in service, is not entitled to the pay, and allowances for the said period and, therefore, no interference of this Court is called for. 7. The rival pleadings and the arguments advanced have been carefully marshaled. There is no wrangle at the Bar that the Petitioner had joined the services as the Mohorar on 17.1.1964. The departmental authorities have not disputed as well his plea that at the time of his recruitment, he had not passed the matriculation examination that, that, therefore, a certificate to that effect is not feasible. The Respondents have also admitted the alteration of his date of birth originally recorded as 28.2.1939 to 8.2.1941. Noticeably though it has been contended that the modification was done without following the procedure prescribed by law, there is no imputation that the Petitioner had an overt role in effecting the same. The departmental authorities have also not dismissed as untenable the horoscope and the affidavit filed by the Petitioner in support of his claim of his date of birth. The departmental authorities have also not dismissed as untenable the horoscope and the affidavit filed by the Petitioner in support of his claim of his date of birth. As a matter of fact, the departmental authorities proceeded on the basis thereof and accordingly took steps for his retirement on 28.2.1999. 8. It was evidently on the intervention of the Accountant General, Assam, that the process culminating in the deduction of his pay and allowances for the period 1.3.1997 to 28.2.1999 was launched. The office memorandum dated 1.2.1992 while emphasizing upon taking of timely steps by the departmental authorities to ensure against overstay in service also requires the incumbents concerned to submit their pension papers in time. In the facts and circumstances of the case, all concerned having proceeded on the basis that the Petitioner's date of birth is 8.2.1941, the plea of applicability of this office memorandum to validate the deduction is untenable. There is no dispute that the Petitioner has rendered his services for the period for which he allegedly had overstayed. In the above view of the matter, having regard to the attendant facts and circumstances, the plea that the Petitioner's date of birth was wrongly recorded as 8.2.1941 without following the procedure prescribed by law cannot be sustained. This is too belated an assertion to find favour of this Court. The departmental authorities unreservedly had accepted the Petitioner's date of birth is 8.2.1941 and the date of retirement to be 28.2.1999 and accordingly processed his pension papers. In the above view of the matter, the imputation of his overstay in service is negated. 9. The Apex Court in Kailash Singh, supra, was seized with a situation where the service book of the Appellant being untraceable and/or lost, the age was sought to be determined by a Medical Board constituted for the purpose. Though according to the age so determined, he ought to have been retired on 31.3.1995, he was allowed to work up to 24.4.2000. Their Lordships held that not only the Appellant was entitled to his pay and allowances for the period of overstay as alleged, he also could not be denied the post retrial benefits reckonable on the basis thereof. 10. The Petitioner in the contextual facts is better placed. In this view of the matter, the decision to subject him to the deduction of the aforementioned sum of Rs. 10. The Petitioner in the contextual facts is better placed. In this view of the matter, the decision to subject him to the deduction of the aforementioned sum of Rs. 1,53,225 is liable to be interfered with. Ordered accordingly. The Respondent authorities would take immediate steps to release the above amount to the Petitioner. 11. In view of the determination as above, the period of service rendered by him for the period 1.3.1997 to 28.2.1999 would also be accounted for to compute his retiral benefits. As the Petitioner stands retired from 28.2.1999, the exercise as indicated hereinabove should be completed within two months from the date of receipt of the certified copy of this order. The petition stands allowed in the above terms. No costs. Petition allowed