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2010 DIGILAW 1244 (ALL)

SHIV RAM v. STATE OF U. P.

2010-04-19

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Deepak Jaiswal, learned counsel for the petitioner, who has at the outset made a request that the petitioner does not want to press relief clause (I) which is for quashing of the order dated 4.9.2004. He, however, prays that an observation be made to the effect that salary paid for the period worked may not be recovered. The dispute relates to the correct date of birth of the petitioner who retired as a peon. The petitioner’s service-book, which was prepared in 1963 indicates that he was 25 years of age then, but the date of birth claimed is 1.9.1948. The authority came to the conclusion that taking the age of the petitioner as 25 years in 1963 the petitioner was born in 1938 and is, therefore, liable to retire at the age of 60 years in 1998. 2. Sri Jaiswal contends that treating the said order dated 4.9.2004 to be valid even otherwise the petitioner is entitled for certain benefits which have been withheld so far. He submits that the same may be directed to be released in case the same is admissible to the petitioner. Sri Jaiswal further invited the attention of the Court to paragraph No. 11 of the counter-affidavit, where it has been stated the pension papers, in accordance with order dated 4.9.2004, have already been forwarded to the Senior Treasury Officer, Etawah, on 31.3.2005 which is still awaiting finalization. 3. A supplementary-Affidavit has been filed copy whereof has been served on the learned Standing Counsel today stating therein that there is every likelihood of recovery of salary from the petitioner for the period between 30.6.1998 to 31.7.2004 and the petitioner shall suffer irreparable loss. 4. Learned counsel Sri Jaiswal submits that he does not want any other benefit out of the order dated 4.9.2004 and the petitioner is prepared to accept the calculation of pension on the strength of the said order dated 4.9.2004 but an observation be made that no recovery of salary may be made from the petitioner. 5. Learned Standing Counsel contends that there is no order or direction for recovery of salary and, therefore, no observation is required to be made and even otherwise in law the petitioner is liable to return the salary for the said period. 5. Learned Standing Counsel contends that there is no order or direction for recovery of salary and, therefore, no observation is required to be made and even otherwise in law the petitioner is liable to return the salary for the said period. Sri Jaiswal, learned counsel for the petitioner, contends that the petitioner has continued to work till 31.7.2004 and in such a situation if the salary is recovered, the petitioner shall be put to irreparable loss. He submits that there was no fraud or misrepresentation on the part of the petitioner and, therefore, recovery cannot be made. 6. From the impugned order dated 4.9.2004, it is evident that the petitioner has been made to retire in fact on 31.8.2004 and notionally w.e.f. 1.7.1998. It is, therefore, evident that the petitioner was allowed to continue in service by the respondents between 1.7.1998 and 31.8.2004 during which period he has performed his duty. There is no indication of any fraud or misrepresentation on the part of the petitioner. In such a situation, it is observed that the respondents shall not proceed to make any recovery of salary if the same has been actually paid to the petitioner between the period 1.7.1998 to 31.8.2004. I am supported in my view from the decision in the case of Union of India and others v. Central Administrative Tribunal, Allahabad, and another, 2003 (4) ESC 2006 and in the case of Duryodhan Lal Jatav v. State of U.P. and others, 2005 (2) ALJ 1141. The contention raised by the learned Standing Counsel has, therefore, to be rejected on this count. 7. Apart from this, no other relief can be granted to the petitioner as he has conceded to the order dated 4.9.2004. The calculation of pension shall, therefore, be made on the basis of the order dated 4.9.2004. 8. Learned Standing counsel contends that in view of this conceded position by the petitioner, the writ petition be disposed of finally at this stage. 9. The calculation of pension shall, therefore, be made on the basis of the order dated 4.9.2004. 8. Learned Standing counsel contends that in view of this conceded position by the petitioner, the writ petition be disposed of finally at this stage. 9. In view of the aforesaid submissions advanced at the Bar and the observations made herein above, this writ petition is disposed of with a direction to the respondent No. 2 to proceed to finalize the claim of the petitioner and issue necessary directions to the Senior Treasury Officer, to whom the papers have already been forwarded and make payment to which he is entitled in accordance with law as expeditiously as possible preferably within a period of 3 months from the date of production of a certified copy of this order before him. 10. The petitioner may serve a copy of this order on the said respondents alongwith his specific claim in respect of the emoluments which are due to him. ————