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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
RUMI KUMARI PHUKAN, J.
Pramod Chandra Saikia S/o Late Someswar Saikia – Petitioner
Versus
Assam Power Distribution Company Ltd. and Others – Respondents
W.P. (C) No. 7982 of 2018
Decided On : 20-05-2021
Service Laws - Date of Birth issue - Retirement Benefits - Petitioner contended that he submitted a representation, in response to the communication, wherein he reiterated that he joined in his service on 16.02.1981 and as per certificate issued by Head Master of Pitambar Dev Goswami High School, his date of birth was recorded as on 25.10.1957 but in his HSLC examination pass certificate, his date of birth was recorded on 01.08.1959 and he requested authority to accept his date of birth as per HSLC examination pass certificate - Chief General Manager, APDCL vide order informed that his date of superannuation should have been 31.01.2017 and the pay and allowances drawn by petitioner during his overstay in service, would be recovered from his post retirement benefit - It is contended by petitioner that the order is illegal and if the same is allowed to stand, it will illegally deprive the petitioner from his means of livelihood - Accordingly the petitioner begs for setting aside and quashing of the impugned order.
Finding of the Court:
Crucial fact to be noted in present case is that petitioner nowhere denied earlier date of birth as recorded in school certificate, that was furnished to respondent authority and equally, he has claimed that his date of birth should be recorded as per HSLC certificate issued by SEBA - Such a contention raised by petitioner cannot be allowed to prevail simply because, there cannot be two dates of birth of a person - Court can draw inference that one of date is incorrect - It is not difficult to accept that it was petitioner or his guardian, who has changed date of birth at time of submitting particulars before Board of Secondary Education (SEBA) and same has been recorded by SEBA - That being so, act of petitioner appears to be not bona-fide and a wrong doer cannot claim privilege of his own wrongful conduct and it will be wholly unjustified one - Only because respondent authority recorded his date of birth as shown in HSLC certificate, cannot be a ground to justify claim of petitioner - One who seeks equity has to come with clean hands, which is not case of petitioner - Aforesaid order does not suffer from any sort of irregularity, as regards date of birth and superannuation, but, however, matter of recovery is to be considered - Counsel for the petitioner submits that the petitioner being a Grade-III employee, recovery of excess pay for overstay in service is impermissible, in view of the judgment of Hon'ble Supreme Court in State of Punjab and Others vs. Rafiq Mashih (White Washer), (2015) 4 SCC 334, Court has been informed by Standing Counsel for APDCL that in light of the above decisions, respondent authority (Chief General Manager (HRA), APDCL), has already issued an order that authority has already directed not to recover excess amount due from wrong fixation of pay as per above guidelines - Authority is not going to recovery any excess amount for overstayed period by petitioner - Court is not inclined to interfere into impugned order passed by respondent authority - Date of superannuation of petitioner will be 31.01.2017, as per the Service Book, where date of birth was initially recorded as 25.01.1957.
Result: Petition disposed of.
JUDGMENT :
RUMI KUMARI PHUKAN, J.
1. Heard Mr. A. Dasgupta, learned senior counsel appearing for the petitioner. Also heard Mr. D. Bhattacharjya, learned standing counsel appearing for the respondent Nos. 1-3 and Mr. T.C. Chutia, learned standing counsel appearing for the Board of Secondary Education, Assam (SEBA), Respondent No. 4.
2. The case of the petitioner is that he was appointed as a peon in the Assam State Electricity Board, in the year 1981, which was subsequently named as Assam Power Distribution Company Limited (hereinafter referred to as ‘the APDCL’) a Govt. Company. He joined in his service on 16.02.1981, in Transmission and Transformation Station at Lanka and later on he was posted in Transmission and Transmission Division at Nagaon. At the time of his appointment, he had not passed the HSLC examination and his date of birth was recorded on the basis of a certificate, issued by the Head Master of Pitambar Dev Goswami High School where he persuaded his studies. In terms of that certificate his date of birth was 25.01.1957. Subsequently, the petitioner passed his HSLC examination under the Board of Secondary Education, Assam (in short ‘SEBA’) in the year 1984. In the HSLC examination pass certificate, his date of birth was recorded as 01.08.1959. After passing the HSLC examination the petitioner submitted his certified issued by the SEBA and in terms of the date of birth as indicated in the HSLC pass certificate, the petitioner’s date of birth was rectified in his service book. Moreover, considering his newly acquired educational qualification, the petitioner was allowed to officiate in the post of Assistant Store keeper on 18.01.1988. Petitioner was subsequently promoted to the post of U.D. Assistant on 26.09.2017.
3. In terms of the date of birth, recorded in the School Leaving Certificate i.e. 01.08.1959, the petitioner’s date of superannuation would be on 31.08.2019. His date of birth was accepted by the authorities of the APDCL and the petitioner was promoted to the post of UDA on 26.09.2017. Had it been not so, the petitioner would have been released from his service on 01.02.2017, on the basis of the certificate issued by the Head master of Pitambar Dev Goswami High School. On 26.09.2018, the Chief General Manager (D) of the APDCL (Car), Guwahati, issued a letter whereby it was intimated to the petitioner that his date of birth was modified by the Divisional Engineer, NED-II, without taking any approval from the competent authority, stating that the petitioner’s date of birth, as recorded in the certificate issued by the SEBA, cannot be accepted. However, his qualification as indicated in the certificate of the SEBA will be accepted. The authorities of the APDCL was of the view that the petitioner’s actual date of superannuation is on 31.01.2017, as he continued in his service beyond this date, the authorities were of the view that the petitioner had over stayed in his service from 01.02.2017. Accordingly by the communication dated 26.09.2018, the petitioner was informed that the excess pay and allowances, drawn by the petitioner w.e.f. 01.02.2017 will be recovered from his gratuity and other post retirement benefits.
4. The petitioner contended that he submitted a representation on 04.10.2018, in response to the communication dated 26.09.2018, wherein he reiterated that he joined in his service on 16.02.1981 and as per the certificate issued by the Head Master of Pitambar Dev Goswami High School, his date of birth was recorded as on 25.10.1957 but in his HSLC examination pass certificate, his date of birth was recorded on 01.08.1959 and he requested the authority to accept his date of birth as per the HSLC examination pass certificate.
5. On 29.10.2018, the Chief General Manager, APDCL vide Order No. CGM (D)/APDCL (CAR) Estt-130/2018/8, informed that his date of superannuation should have been 31.01.2017 and the pay and allowances drawn by the petitioner during his overstay in service, would be recovered from hi
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