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Madhya Pradesh High Court · body

2010 DIGILAW 222 (MP)

CHHOTELAL RAI v. STATE OF M. P.

2010-02-23

SHANTANU KEMKAR

body2010
Judgment Shantanu Kemkar, J. ( 1. ) Petitioner was working on the post of Assistant Sub-Inspector of Police in the Home (Police) Department of the State Government. He was retired from service on attaining the age of superannuation w.e.f. 31.12.2005 treating his date of birth to be 04.12.1945. ( 2. ) On 17.10.2006 the fourth respondent requested to the second respondent to approve the petitioners date of birth to be 04.12.1945 in view of the entry made in the service book recording his date of birth as 04.12.1945. However, the third respondent informed the fourth respondent vide letter dated 24.09.2007 (Annexure P-6) that the petitioner has wrongly been continued upto 31.12.2005 treating his date of birth to be 04.12.1945, whereas his date of birth as per the Higher Secondary Certificate is 21.5.1945 and in the circumstances he ought to have been retired w.e.f 31.05.2005. In the circumstances recovery of the amount of salary paid to the petitioner for the period between June, 2005 to December, 2005, was ordered. Aggrieved the petitioner has filed this petition. ( 3. ) The case of the petitioner is that his actual date of birth is 04.12.1945 which was recorded in his service book and was treated to be correct during his entire service period. He submits that on the basis of the said date of birth he was allowed to continue in service till 31.12.2005 and he having worked till that date the order of recovery of salary for the period between June, 2005 to December, 2005 is illegal. He placed reliance on the judgment passed by the Supreme Court in the case of Sahibrdm Vs. State of Haryana and others (1995 Supp (1) SCC 18), Shyambabu Verma and others Vs. Union of India and others ( 1994 (2) SCC 521 ) and Col. B.J. Akkara (Retd.) Vs. Govt. of India and ors. (2006) 11 SCC 709 . ( 4. ) The respondents have filed reply and have stated that on the basis of the academic certificate submitted by the petitioner, it was found that his actual date of birth is 21.05.1945 and not 04.12.1945 as was recorded in the service book. According to the respondents, the petitioner ought to have been retired on 31.05.2005 instead of 31.12.2005. ( 4. ) The respondents have filed reply and have stated that on the basis of the academic certificate submitted by the petitioner, it was found that his actual date of birth is 21.05.1945 and not 04.12.1945 as was recorded in the service book. According to the respondents, the petitioner ought to have been retired on 31.05.2005 instead of 31.12.2005. In the circumstances he worked for 7 months more than his scheduled period of retirement and as such recovery of salary of the said period has rightly been ordered. ( 5. ) Having heard learned counsel for the parties and after perusal of the documents filed by them, it is revealed that the respondents have ordered recovery of the salary paid to the petitioner for the period of 7 months during which he was allowed to work on the basis of entry of date of birth recorded in his service book. The respondents have recorded the finding that the petitioners correct date of birth is 21.05.1945 and not 04.12.1945 behind his back that too much after his retirement. It is not the case of the respondents that the petitioner had defrauded the department by giving a false date of birth. The petitioner was allowed to work and superannuate on the basis of date of birth recorded in his service book. In the circumstances, it was not open for the respondents to have recovered the salary paid to him for the period during which he was allowed to continue in service. Undisputedly, through-out his service tenure the respondents treated his date of birth to be 04.12.1945 and allowed him to continue and retire on the basis of the said date of birth. Having regard to these facts and in view of the law laid down by the Supreme Court in the case of Sahibram Vs. State of Haryana and others (supra), Shyambabu Verma and others Vs. Union of India and others (supra) and Col. B.J. Akkara (Retd.) Vs. Govt. of India and ors. (supra) the action of the respondents in recovering the amount of salary paid to the petitioner for the period during which he was allowed to work cannot be said to be justified. ( 6. ) Accordingly, the impugned order of recovery dated 24.11.2008 (Annexure P-12) deserves to be and is hereby quashed. Govt. of India and ors. (supra) the action of the respondents in recovering the amount of salary paid to the petitioner for the period during which he was allowed to work cannot be said to be justified. ( 6. ) Accordingly, the impugned order of recovery dated 24.11.2008 (Annexure P-12) deserves to be and is hereby quashed. The respondents are directed to refund the recovered amount to the petitioner within three months failing which the petitioner would be entitled for interest @ 6% per annum from the date of recovery till payment. The petition stands allowed. No orders as to the costs. Cc within seven days. Petition allowed.