Research › Search › Judgment

J&K High Court · body

2012 DIGILAW 413 (JK)

Managing Director PDC & Ors. v. Habibbullah Lone

2012-07-11

HASNAIN MASSODI, M.M.KUMAR

body2012
1. The instant appeal under Clause 12 of the Letters Patent Rules is directed against judgment and order dated 06.04.2005 rendered by the learned Single Judge while disposing of SWP No. 1671/2003. The learned Single Judge has directed that the writ petitioner respondent, who has over stayed his period of service, be treated as re-employed for the over stayed period and accordingly his retiral benefits by fixed in accordance with the relevant rules. 2. The facts are not in dispute. The writ petitioner-respondent earlier filed SWP no. 1568/2001 with prayer for settlement of his pension case, disbursement of pensionery benefits and for quashing Government Order No. 405-PDD of 2000 dated 13.12.2000 (P-III). The aforesaid Government Order has settled the dispute with regard to the date of birth of the writ petitioner to be 25.05.1935 and he was deemed to have retired on 31.05.1993. In fact he was actually superannuated on 06.09.1999 with effect from 01.09.1999. The learned Single Judge vide order dated 07.11.2002 issued a direction to the appellants-competent authority to process and complete his pension case and pay his retiral benefits of PDD in accordance with law and rules governing his service conditions. The aforesaid directions also clarify that order dated 13.12.2000 (P-III) should be deemed to have concluded the date of birth of the petitioner, namely, 25.05.1935. At that stage there was no order aiming to effect recovery of salary paid to him for six years of overstay. The question as to how to treat the over stayed period of six years, was also not raised nor decided. In pursuance of order dated 13.12.2000 (P-III) and the judgment of the learned Single Judge dated 07.11.2002 the office of Accountant General sent a letter dated 26.02.2003 to the Executive Engineer, Maintenance Division Gantmulla Baramulla. According to the aforesaid letter, for the period of over stay in the government service recovery was to be effected of the excess amount drawn and the department was directed to work out the total amount and intimate to the Accountant General by treating his date of retirement as 31.05.1993 whereas he actually retired on 06.09.1999. 3. Aggrieved by the aforesaid recovery process to be made, the writ petitioner-respondent was armed with another cause of action and he filed another petition bearing SWP no. 3. Aggrieved by the aforesaid recovery process to be made, the writ petitioner-respondent was armed with another cause of action and he filed another petition bearing SWP no. 1671/2003 with the prayer, inter alia, that appellants be restrained from making any recovery from the writ petitioner-respondent in lieu of the pay which has been paid to him on account of over stay in service. A further prayer was also made for quashing communication dated 26.02.2003 which came to be issued after the decision of the earlier writ petition on 07.11.2002. The learned Single Judge, after considering the submissions made at the Bar, reached the conclusion that in the peculiar facts and circumstances a direction deserved to be issued to the appellant-authorities to settle the claim of the writ petitioner in respect of grant of pension by treating the overstayed period as re-appointment in service and then process his case for payment of retiral benefits keeping in view the relevant rules. The argument of the appellant that it would amount to reopening the order passed by the learned Single Judge on 07.11.2002 in SWP No. 1568/2000, was rejected by the learned Single Judge is evident from the following para of the impugned judgment:- "Mr. Beigh, learned counsel for the respondents-State, submits that the authorities have processed his case in terms of the directions of this Court on 7.11.2002 and in view the fact that the Court has conclusively held that the petitioners date of birth will be the same as declared vide Government order date 13.12.2000, the petitioner cannot ask for re-opening of the case an challenge the findings under the garb of seeking remuneration for the period he overstayed in the service. Perusal of the judgment of this Court dated 7.11.2002 shows that the Court has no-where asked the respondents not to treat the period of overstayal as reappointment, the Court only specifically held that the Govt. order dated 13.12.2000 concluded the petitioners date of birth. There appears no bar for the respondents to treat the period over stayed by the petitioner as reappointment. In view of the fact and circumstances of the case, the petitioner is disposed of with the direction to the respondents to settle the claim of the petitioner by treating the over stayed period as reappointment in service and process his retiremental benefits in light of relevant rules in this behalf." 4. In view of the fact and circumstances of the case, the petitioner is disposed of with the direction to the respondents to settle the claim of the petitioner by treating the over stayed period as reappointment in service and process his retiremental benefits in light of relevant rules in this behalf." 4. We have heard learned counsel for the parties at some length and with their assistance have perused the pleadings of the parties. 5. It has come on record that there was some dispute with regard to the date of birth of the writ petitioner-respondent which eventually culminated in passing of order dated 13.12.2000(P-III). Accordingly, his date of birth was found to be 25.05.1935. It is significant to note that there is no finding by any authority that the date of birth of the writ petitioner- respondent was the result of manipulation, interpolation or fraud committed by him. In the absence of any such categorical finding, reflecting on the conduct of the writ petitioner-respondent, it is not possible to take a view that he should be deprived of the salary for the period he has worked on the post of Senior Mechanic. The best course, available for the appellants, has been adopted by the learned Single Judge by issuing direction that during the period of six years he must be treated to have been re-appointed. In other words he would be entitled to pension w.e.f. 01.06.1993. The amount of pension has to be set off from his salary paid to him which would be adjusted in the pension or other retiral benefits. 6. It is well settled that after attaining the age of superannuation a pensioner can also be re-employed and his salary as well as pension could always be re-fixed in accordance with rules applicable. At this stage, it would not be fair to recover whole salary of the over stayed period of six years because he had worked, deprive the writ petitioner-respondent the salary which he has been paid to him for working during the period of six years. Therefore, we are satisfied that the learned Single Judge has taken a rounded view of the matter and has issued directions which were most equitable and fair in the facts and circumstances of the case. 7. As a sequel to the above discussion, this appeal fails and the same is dismissed. Therefore, we are satisfied that the learned Single Judge has taken a rounded view of the matter and has issued directions which were most equitable and fair in the facts and circumstances of the case. 7. As a sequel to the above discussion, this appeal fails and the same is dismissed. We make it clear that if the retiral benefits have not been paid to the writ petitioner-respondent, then the same be paid to him in accordance with the directions issued by the learned Single Judge expeditiously, preferably within a period of three months from today. 8. No costs.