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IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SANJAY KUMAR MEDHI, J.
Jagadish Kumar Deka, S/o. Lt. Kanak Ch. Deka & Ors. - Petitioners
Versus
The State of Assam, Rep. by the Comm. and Secy. to the Govt. of Assam, Home and Political Deptt. & Ors. - Respondents
WP(C) No. 3402 of 2019, WP(C) No. 3423 of 2019, WP(C) No. 3422 of 2019, WP(C) No. 4475 of 2019
Decided On : 01-09-2021
Constitution Of India, 1950 – Pension - Impugned action in purporting to recover salaries for period of overstay is absolutely unreasonable and arbitrary - It is submitted that error had crept in while calculating/ deducing date of birth of respective petitioners at time of entry into services under APRO - As demonstrated source of date of birth is matriculation certificate issued by competent authority namely, Board of Secondary Education, Assam in which at relevant time instead of date of birth, age of relevant year was given - Whether Appellant had accepted his corrected date of birth as entered in his service book when admittedly authorities concerned did not serve any notice of retirement on basis of initial entry of date of birth in his service book – Held, Impugned action in purporting to recover salaries for period of overstay, details of which is already recorded in Judgment is interfered with and accordingly set aside - As regards claim for pension, by following guidelines of Hon'ble Supreme Court in case of petitioners would be entitled to fixation of retiral benefits as on date of their correct dates of birth with a further clause that for period of overstay, only notional benefit would be entitled to as petitioners' entitlement for salaries for said period has been upheld -It should also be kept in mind that respondent might have expected that second date of birth shown in service book was accepted by authorities for that reason he was allowed to continue in his service and was paid salary. - In absence of any proof that respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any malafide intentions to continue his service, beyond his date of his retirement ,Court are of view that decision in case of vs. Union of India and Ors. (Supra), would not be applicable in facts of present case - Writ petitions disposed of.
JUDGMENT :
An identical issue being involved in all the four writ petitions, the same are taken up for consideration together and disposed of by this common order.
2. The issue involved in brief pertains to the action of the respondent authorities in purporting to make certain recoveries of the salaries of the petitioner on the ground of overstay in their services. At the outset, it may be noted that such overstay is on the principal ground of wrong calculation of the date of birth of the petitioners while entering the same in the Service Book of the petitioners at the time of their recruitment.
3. To consider and decide the aforesaid issue, it would be convenient if the facts are placed on records. The petitioners in WP (C) No. 3402/2019, WP (C) No. 3422/2019, WP (C) No. 4475/2019 namely, Shri Jagadish Kumar Deka, Shri Imran Hussain Borah and Shri Sarat Hazarika, at the time of filing of writ petitions were Assistant Sub-Inspector of Police in the Assam Police Radio Organization (hereinafter, APRO) whereas the petitioner in WP (C) No. 3423/2019 Shri Manabendra Sarma was an Inspector in the said Organization. The petitioners have reached the aforesaid ranks by virtue of being promoted from time to time. It is the cases of the petitioners that at the time of entering into the services their dates of birth were recorded in the Service Book from the HSLC examination certificate submitted by the petitioners. It may be mentioned that at those times, such certificates did not contain the date of birth but the age of the candidates were written as on 1st of March of the concerned year from which the date of birth was deducible.
4. To actually understand the dispute, the particulars of the each of the candidates is given hereinbelow-
14 years and 8 months as on 1st of March, 1973.
Date of birth recorded in the Service Book: 01.09.1959
Correct date of birth should have been 01.07.1958
(ii) WP (C) No. 3422/2019, Shri Imran Hussain Borah :
16 years and 8 months as on 1st of March, 1975.
Date of birth recorded in the Service Book: 01.05.1959
Correct date of birth should have been 02.07.1958.
(iii) WP (C) No. 3423/2019, Manabendra Sarma :
16 years and 4 months as on 1st of March, 1975.
Date of birth recorded in the Service Book: 01.11.1960
Correct date of birth should have been 01.11.1958.
(iv) WP (C) No. 4475/2019, Shri Sarat Hazarika
17 years and 2 months as on 1st of March, 1974.
Date of birth recorded in the Service Book: 01.08.1959
Correct date of birth should have been 01.01.1957.
5. It is the case of the petitioners that while serving in their respective posts, the respondent authorities informed them that their dates of birth were recalculated and were accordingly asked to go on retirement. So far as the petitioner in WP (C) No. 3402/2019 is concerned he was informed that his actual date of birth being 01.07.1958 and not 01.09.1959 which was recorded in the Service Book, he should have been retired from service on 30.06.2018 itself and accordingly he was directed to go on retirement immediately w.e.f., 31.12.2019. Thereafter, the petitioner had received the order dated 08.01.2019 issued by the Superintendent of Police (Communication), Assam whereby he was informed that there was a proposal to deduct salary drawn by the petitioner for the period of overstay from 30.06.2018 to 31.12.2018 from the DCRG and other benefits.
6. Similarly, So far as the petitioner in WP(C) No.3422/2019 is concerned he was informed that his actual date of birth being 02.07.1958 and not 01.05.1959 which was recorded in the Service Book, he should have been retired from service on 31.07.2018 itself and accordingly he was directed to go on retirement immediately w.e.f., 31.01.2019. Thereafter, the petitioner had received the order dated 07.02.2019 issued by the Superintendent of Police (Communication), Assam whereby he was informed that there was a proposal to deduct salary drawn by the petitioner for the period of overstay from
Recovery from the salaries for the period of overstay was unjustified due to the petitioners' good faith service and the authorities' failure to detect discrepancies in their dates of birth.
Point of Law : Note under Service Rule 8 of the FR & SR clearly stipulates that the Head of the Office should record the date of birth in the Service Book of a non-gazetted government servant on his ....
Recovery of salary for overstay is impermissible where no fraud is established, and the employee was allowed to work without objection from the employer.
Recovery of excess payments is impermissible if it causes undue hardship, especially when no fraud is involved.
Recovery of excess salary from a retired employee is impermissible when no fraud is established, and the employee worked without objection for an extended period.
Recovery from pensionary benefits is impermissible when the employee has rendered service during the overstayed period without prior notice of the excess payments to be recovered.
The petitioner's silence regarding the wrong date of birth did not amount to fraud, and the recovery of salary for the period of overstay was interfered with.
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