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2010 DIGILAW 330 (JK)

Haider Lone v. State

2010-06-02

MUZAFFAR HUSSAIN ATTAR

body2010
1. Heard. Admit. Notice. 2. Mr. J.A.Kawoosa, AAG appeared and accepted notice on behalf of respondents. He submitted that objections already filed be treated as counter affidavit. His statement is taken on record. Prayer allowed. 3. Mr. Latief, learned counsel for the petitioner submitted that he does not want to file rejoinder affidavit. His statement is taken on record. 4. With consent of learned counsel for the parties, this petition is taken up for final disposal. 5. Petitioner’s date of birth was recorded in service records as 8th October, 1948, which has been attested by the authorities at the relevant point of time when the entry was made in the service records. Petitioner, accordingly, continued in service till 7th November, 2006. Order No.1583-DSEK of 2006 dated 07.11.2006 was passed by the respondents vide which the petitioner was ordered to have retired w.e.f 31st October, 1997. It was further directed that the excess pay and allowances received by the petitioner from 01.11.1997 till 07.11.2006 shall be recovered by the concerned DDO from the petitioner’s pension. It is this order which has been challenged in this petition on the ground that before passing of this order neither any enquiry has been conducted nor the petitioner has been put on notice. 6. Respondents have filed objections which are treated as counter affidavit in which it has been stated that a complaint was received by the Vigilance Organization Kashmir in which it was complained that the petitioner is unauthorizedly continuing in service. The complaint was sent to the Education Department. A committee was constituted and ultimately it was informed by the authorities of State Board of School Education that the petitioner has appeared in English only in the matriculation examination and his date of birth has been recorded as 08.10.1939. The Committee issued notice to the petitioner. It is submitted that the petitioner in these circumstances is not entitled to any relief from the Court and writ petition merits dismissal. 7. Heard learned counsel for the parties. Considered the matter. 8. Learned counsel for the parties argued in tune with their respective pleadings. 9. The Committee issued notice to the petitioner. It is submitted that the petitioner in these circumstances is not entitled to any relief from the Court and writ petition merits dismissal. 7. Heard learned counsel for the parties. Considered the matter. 8. Learned counsel for the parties argued in tune with their respective pleadings. 9. Learned counsel for the petitioner submitted that he restricts his claim in this writ petition to the extent that the period for which the petitioner has worked be ordered to be treated as re-employment and the salary and allowance drawn by him shall not be recovered by the respondents from his retiral benefits. 10. Admittedly, in the service records, the date of birth of the petitioner was recorded as 08.10.1948, which, as already stated, is attested by an officer of the department. Petitioner was allowed to continue in service on the basis of entry made in his service book. Petitioner, thus, has not continued in the service by applying any fraudulent means. No criminal act is attributed to the petitioner for seeking continuation in service beyond 31st October, 1997. Petitioner’s date of birth is recorded as 8th October, 1939 in matriculation certificate. 11. Article 35 of the CSR provides that date of birth is to be recorded in the service record of an employee on the basis of entry made in the matriculation certificate. Admittedly in the matriculation certificate the date of birth of the petitioner is recorded as 8th October, 1939, which is not disputed by the petitioner in his writ petition. Even the statement attributed to the petitioner made by him before DVO, which is reproduced in the impugned order, has not been disputed by the petitioner in the writ petition. In this fact situation a reasonable person would come only to the conclusion that the actual date of birth of the petitioner is 8th October, 1939, therefore, the petitioner was to retire from service on 31st October, 1997. The issue which requires to be considered now is as to whether the petitioner is liable to repay the pay and allowance which he has received from October, 1997 to 07.11.2006. 12. The petitioner can be ordered to repay the salary and allowance which he has received beyond the period of retirement, in case, he has continued in service by applying fraudulent means or by a criminal act. 12. The petitioner can be ordered to repay the salary and allowance which he has received beyond the period of retirement, in case, he has continued in service by applying fraudulent means or by a criminal act. In the present case the petitioner’s date of birth has been recorded in the service records as 8th October, 1948, which has been attested by some authority of the department. It is not any where stated that petitioner has defrauded the authorities and has tampered the service records so as to continue in service beyond his actual date of birth. It is fraud which would denude the petitioner of the benefits he has secured. Since no fraudulent act is attributed to the petitioner, he cannot be deprived of pay and allowance which he has received from 01.11.1997 till 07.11.2006 as he has rendered services to the respondent department. Petitioner having rendered services, the accrued salary becomes his property and right to receive the same is a fundamental right guaranteed under Article 19 of Constitution of India. Petitioner cannot be deprived of this right by the respondents in the fact situation of this case. 13. For the above stated reasons this petition is disposed of in the following terms: By issuance of a writ of certiorari part of order No. 1583 DSEK of 2006 dated 07.11.2006 viz; "The excess pay and allowances received by Sh.Lone from 01/11/1997 till date shall be recovered by the concerned DDO from the Teacher’s pension etc." is quashed. Respondents are directed to treat the period from 31st October, 1997 till 07.11.006 as re-employment of the petitioner. Respondents to settle and pay the retiral benefits to the petitioner by treating his date of retirement as 31st October, 1997.