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2009 DIGILAW 636 (GAU)

Ajit Chandra Puzari v. State of Assam

2009-09-03

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. Heard Mr. D.C. Borah, Learned Counsel for the petitioner as well as Mr. S.K. Das, learned Standing Counsel, Education Department, Assam. I have also heard Mr. C. Baruah, learned Central Government Standing Counsel, representing the Accountant General. 2. The petitioner is aggrieved by the proposed recovery from his pensionary benefits by Annexure-17 letter dated 10.9.2008. The Principal of the Institute in which the petitioner had worked, sought for advice in the matter relating to recovery of the amount of Rs. 58,998 and Rs. 3,02,900. According to the respondents, such recovery from the pensionary and other retirement benefits of the petitioner has become necessary, as the amounts had been paid to him on account of wrong fixation of pay and due to over stay in service respectively. 3. As recorded in the order passed by this Court on 4.8.2009, it is the own case of the petitioner that his actual date of birth is 30.11.1947, as per the age recorded in the HSLC certificate, which he had produced at the time of joining the service and/or opening the service book. If the said date of birth is taken into account, the petitioner would have retired from service on attaining the age of superannuation on 30.11.2006. However, he continued to render his services up to 6.6.2008, on which date the Annexure-12 order dated 6.6.2008 was issued by the Principal of the respondent institute. In the order, it was stated that on attaining the age of superannuation at the age of 59 years, the petitioner who was to retire on 30.11.2006, would stand released from service. It was also indicated in the order that necessary adjustment, recovery in respect of the period of over stay would be made from his pensionary benefit after finalisation of the case by the competent authority. 4. Pursuant to the order passed by this Court, the petitioner has been paid the provisional pension and his pension case could not be finalised because of the aforesaid anomaly. 5. Out of the aforesaid amount of Rs. 58,998 and Rs. 3,02,900, the amount of Rs. 58,998 is on account of stepping up of the pay of the petitioner at par with his juniors from 1.7.1997. The other amount is on account of drawal of salary by the petitioner due to over stay in service beyond the actual date of superannuation. 6. 58,998 and Rs. 3,02,900, the amount of Rs. 58,998 is on account of stepping up of the pay of the petitioner at par with his juniors from 1.7.1997. The other amount is on account of drawal of salary by the petitioner due to over stay in service beyond the actual date of superannuation. 6. So far as the wrong fixation of pay of the petitioner and drawal of the aforesaid amount of Rs. 58,998 is concerned, Mr. C. Baruah, Learned Counsel representing the Accountant General, submits that the particular pay fixation was provided to the petitioner erroneously without any reference to the ROP Rules and without prior approval of the Finance Department. However, on perusal of Annexure-8 letter dated 22.4.2008, it appears that the authority has requested the Government of Assam in the Education Higher Technical Department, to provide necessary approval for stepping up of the pay of the petitioner by invoking FR-27, so that the petitioner does not suffer any loss. The action which is now required to be taken by the departmental authority is to provide Ex-post-facto approval. Such approval is to be accorded by the Finance Department. 7. The petitioner was provided with the fixation of pay by way of stepping up of his pay at par with his junior. The petitioner had no hand in such stepping up of pay and it would in appropriate to recover the amount after his retirement, more particularly, when the authority has requested the Finance Department to accord Ex-post-facto approval towards such fixation. In that view of the matter, so far as the amount of Rs. 58,998 is concerned, which according to the respondents, has been paid to the petitioner due to wrong fixation of pay, it is hereby ordered that there should be no recovery from the pensionary and other retirement benefits of the petitioner. It is further provided that the Finance Department, and for that matter, whosoever be the competent authority should accord post-facto approval for such stepping up of pay which stood already implemented. 8. As regards the amount of Rs. 3,02,900 being the salary drawn by the petitioner beyond the age of superannuation i.e., 30.11.2006, the matter is on a different footing. It is further provided that the Finance Department, and for that matter, whosoever be the competent authority should accord post-facto approval for such stepping up of pay which stood already implemented. 8. As regards the amount of Rs. 3,02,900 being the salary drawn by the petitioner beyond the age of superannuation i.e., 30.11.2006, the matter is on a different footing. It is the case of the petitioner that his date of birth having been recorded as 20.12.1948, the petitioner rightly continued in his service beyond 30.11.2006 and thus, there could not have been any order for recovery. In this connection, Mr. Borah, Learned Counsel for the petitioner has referred to the decision of the Apex Court reported in State of Uttar Pradesh v. Shib Narayan Upadhayay (2005) 6 SCC 48. On the other hand Mr. S.K. Das, learned Standing Counsel, Education Department, placing reliance on the decision of the Apex Court V. Gangaram v. Regional Joint Director (1997) 6 SCC 139 submits that in case of any erroneous excess payment or wrong drawal of excess payment by an incumbent, the authority is within its competence and jurisdiction to recover the excess amount from the pensionary benefits. 9. In Shib Narayan Upadhayay (supra), the incumbent continued in service beyond the age of superannuation not on his own accord. It was observed that the date of birth recorded in the Service Book should be decisive. The petitioner in that case continued in his service as per the recorded date of birth. However, he was allowed to continue in his service by mistake. It was in such circumstances, the Apex Court held that it would not be just and proper to order for recovery. 10. In V. Gangaram (supra), the apex court upheld the order for recovery when it was found that incumbent was paid excess amount erroneously. The authority was permitted to recover the excess amount proportionately from the pension. 11. By order dated 4.8.2009, Mr. Das, learned Standing Counsel, Education Department was requested to produce the Service Book of the petitioner. Today, he has produced the same. On verification of the same, it appears that the service book contains the Admit Card of the petitioner pertaining to his HSLC examination, in which he appeared in the year 1969. The age recorded in the Admit Card is 21 years 3 months and 1 day as on 1.3.1969. Today, he has produced the same. On verification of the same, it appears that the service book contains the Admit Card of the petitioner pertaining to his HSLC examination, in which he appeared in the year 1969. The age recorded in the Admit Card is 21 years 3 months and 1 day as on 1.3.1969. If the date of birth is calculated on that basis and as admitted by the petitioner, his date of birth is 30.11.1947. 12. In the relevant column of the date of birth in the Service Book, the following entry was made: 20th December, 1948 (21 years, 4 months, 10 days on 30.4.1969 as per School Leaving Certificate). 13. Apparently, the above endorsement so far as the same relates to the date of birth i.e., "20th December, 1948" is concerned, same was a wrong calculation. If the petitioner was 21 years, 3 months, 1 day as on 1.3.1969, his date of birth is 30.11.1947. The petitioner duly signed the Service Book, accepting the aforesaid endorsement made. The petitioner cannot accept only one entry and discard the other. If the entry "20th December, 1948" is acceptable to the petitioner, there is no reason as to why the entry "21 years, 4 months, 10 days" on 30.4.1969 as per the School Leaving Certificate should not be acceptable to him. 14. If the actual date of birth of the petitioner was known to him and should be known to him, there is no reason as to why the petitioner ought not to have pointed out the wrong recording of date of birth i.e., 20th December, 1948 in the Service Book. He continued in his service on the basis of such wrong entry. However, the Service Book depicts that the aforesaid entry was encircled and further entry was made depicting the date of birth of the petitioner as 30.11.1947. It is not discernable as to who had entered the same in the relevant column of the Service Book of the petitioner. 15. The particular entry in the Service Book of the petitioner with the endorsement of the petitioner cannot be disowned by the petitioner and so also by the authority. As noted above, if the petitioner's age as on 1.3.1969 was 21 years, 3 months, 01 days as recorded in the Service Book, his date of birth is 30.11.1947. Mr. 15. The particular entry in the Service Book of the petitioner with the endorsement of the petitioner cannot be disowned by the petitioner and so also by the authority. As noted above, if the petitioner's age as on 1.3.1969 was 21 years, 3 months, 01 days as recorded in the Service Book, his date of birth is 30.11.1947. Mr. Borah, Learned Counsel for the petitioner fairly admits that such correct date of birth of the petitioner was known to him. This aspect of the matter has been recorded in the order of this Court passed on 4.8.2009. 16. The authority who had made the aforesaid entry in the Service Book of the petitioner is also equally responsible/guilty of wrong recording of date of birth of the petitioner as 20.12.1948 instead of 30.11.1947, more so, when the age of the petitioner as on 30.4.1969 was recorded in the Service Book and was also discernable on the basis of the admit card produced by the petitioner. 17. In view of the above, both sides i.e., the petitioner as well as the authority who had recorded the particular entry in the Service Book are guilty of contributory negligence. If the actual date of birth of the petitioner was known to him which is 30.11.1947, as a good and responsible officer, it was his duty to point out the same to the authority instead of continuing in service on that basis, till the Annexure-12 order dated 6.6.2008 was issued by the Principal of the Institute. At the same time, the authority who had recorded the date of birth of the petitioner as 20.12.1948 even after recording his age as 21 years 4 months, 10 days on 30.4.1969 clearly indicating the same to be as per School Leaving Certificate ought to have been more careful. 18. In view of the above, it cannot be said to be a case of continuation in service without any suppression of material fact. There is clearly contributory negligence on the part of the petitioner as well as the departmental authorities. In that view of the matter, I am of the considered opinion that ends of justice would be met if the amount involved i.e., Rs. 3,02,900 is reduced to 50% of the same and the petitioner is made responsible for refund of the same. In that view of the matter, I am of the considered opinion that ends of justice would be met if the amount involved i.e., Rs. 3,02,900 is reduced to 50% of the same and the petitioner is made responsible for refund of the same. In other words, the respondents will be entitled to recover 50% of the amount of Rs. 3,02,900 from the pensionary and other retirement benefit of the petitioner. This is because of the contributory negligence on the part of the petitioner. 19. Writ petition is allowed to the extent indicated above. 20. At this stage Mr. Borah, Learned Counsel for the petitioner submits that the petitioner has not been provided with any pensionary and other retirement benefits but has been paid provisional pension only. Since the matter has now been decided, steps should be taken towards early release of the pensionary benefits of the petitioner subject to the deduction permitted above. Let the benefits be paid to the petitioner as expeditiously as possible but at any rate not latter than three months. 21. Mr. C. Baruah, Learned Counsel appearing for the Accountant General, submits that necessary order towards final payment of GPF amount pertaining to the petitioner has already been passed. 22. Needless to say that the recovery of the aforesaid 50% of Rs. 3,02,900 shall be made by the authority in suitable instalments, so that no hardship is caused to the petitioner. 23. Writ petition is disposed of without any order as to costs.