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2017 DIGILAW 744 (GAU)

Pushpa Mahanta v. State of Assam

2017-06-07

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT & ORDER : Heard Mr. K.K. Mahanta, learned senior counsel for the petitioner and Mr. N. Sarma, learned Standing Counsel for the Education Department, Assam. 2. The petitioner, who was the Headmistress in the Naobaicha Balika Prathamik Vidyalaya under North West Block of Jorhat had superannuated from her service on 31.01.2012. The provisional matriculation certificate issued to the petitioner by the Headmaster of the Jhanji Girls High School, where she had studied, indicates that her date of birth is 01.06.1956. Accordingly, when the petitioner had joined service, her date of birth was accordingly recorded as 01.06.1956. But on the other hand, the matriculation certificate indicates the date of birth of the petitioner to be 01.10.1949. 3. Had the date of birth of the petitioner been considered as 01.10.1949, the petitioner would have superannuated from service on 30.09.2009. However, when such mistake was detected by the petitioner on or about 27.01.2012, while she was serving as the Headmistress of the concerned school, the petitioner herself visited the office of the BEEO, North West Jorhat and informed him about the anomalies regarding her date of birth. Accordingly, the petitioner was verbally asked to continue for some more days till some alternative arrangement is made to appoint a new Headmaster. Thereafter, on 17.02.2012, one Ashok Goswami was appointed as the Headmaster of the school and he had accordingly joined. After the aforesaid Ashok Goswami was appointed as the Headmaster, the respondent No.4, being the Block Elementary Education Officer, had directed the petitioner to appear before him and give an undertaking in writing to refund the amount, which the petitioner had received for the period of her overstay in service. It is stated that the petitioner under duress had signed the said undertaking. Accordingly, the petitioner assails the aforesaid action of the respondent No.4 in coercing her to sign the refund of the amount and prays that a direction be issued to the respondent authorities not to insist on the refund of the salary, which the petitioner had already been received. 4. In paragraph-10 of the writ petition, the petitioner makes a categorical statement that she had not withheld the actual date of her birth and on the other hand, when the petitioner was deputed to undergo the Basic Training Course in the year 1982, she had produced the original matriculation certificate before the authorities. 4. In paragraph-10 of the writ petition, the petitioner makes a categorical statement that she had not withheld the actual date of her birth and on the other hand, when the petitioner was deputed to undergo the Basic Training Course in the year 1982, she had produced the original matriculation certificate before the authorities. Again when the service of the petitioner was confirmed in the year 1989 and also on 19.06.1999 when her stagnation increment was granted, the petitioner submitted her original matriculation certificate, which indicates that her date of birth was in the year 1949. 5. The averments made in paragraph-10 of the writ petition had not been denied by the respondent authorities and as such, under the law, the same has to be construed to have been admitted. In the above circumstance, it cannot be concluded that the petitioner had deliberately mislead the authorities as regards her date of birth and on the other hand it can be said that the correction of date of birth was not done by the respondent authorities because of any fault on the part of the petitioner. 6. In Shyam Babu Verma and others –vs- Union of India and others, reported in (1994) 2 SCC 521 , the Hon’ble Supreme Court in paragraph 11 was of the view that if an employee is paid certain excess amount due to no fault of theirs, it shall only be just and proper not to recover such excess amount, which had already been paid to them. 7. Again in State of Punjab and others –vs- Rafiq Masih (White Washer) and others, reported in (2015) 4 SCC 334 , in paragraph-18, it had been held that it is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. One of the situation, which the Hon’ble Supreme Court had envisaged where recovery would be impermissible is that where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover. 8. One of the situation, which the Hon’ble Supreme Court had envisaged where recovery would be impermissible is that where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer’s right to recover. 8. In the instant case, the noticeable facts are that firstly, the petitioner had never mislead the authorities as regards her actual date of birth and nor she had refrained from producing the original matriculation certificate, which indicated her date of birth to be 1949. In fact, the said certificate was produced on three occasions, firstly, when the petitioner was deputed to undergo the Basic Training Course, secondly, when her service was confirmed and thirdly, when the petitioner was given her stagnation increment. On all such occasions, the respondent authorities had the occasion to verify the original certificate and also make necessary correction in the Service Book. But for reasons unexplained, the same had not been done. As such, no fault could be found in the conduct of the petitioner, inasmuch as, her date of birth had not been corrected in the Service Book. Further, although the petitioner as per the date of birth in the year 1949, would have retired in the year 2009, but the petitioner had rendered additional service and the respondent authorities had also utilized her service. 9. In the aforesaid circumstance, in the considered view of this Court, it would also be iniquitous and harsh on the part of the respondent authorities to insist that the petitioner refund the salary and allowances that she had received for the additional period for which she had served. 10. In view of the aforesaid conclusion, it is directed that the respondent authorities shall not insist upon the refund of the salary that was paid to the petitioner for the period from the year 2009 till the date when she actually superannuated from service. In terms of the above, the respondent authorities shall act accordingly as regards the entitlement of the petitioner. In terms of the above, this writ petition stands disposed of.