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.

JUDGMENT :

KARDAK ETE, J.

Heard Mr. B.D. Das, learned Senior Counsel assisted by Mr. J. Lotha, learned counsel for the petitioner. Also heard Mr. D. Borah, learned Standing Counsel for the Health Department as well as Mr. R.K. Talukdar, learned Standing Counsel appearing on behalf of the Principal Accountant General (A&E), Assam.

2. By filing this Writ Petition, the petitioner prays for a direction to the respondent authorities to pay the pension and other retireal benefits such as gratuity, GPF, etc. without any deduction of pay and allowances for the period from 01.06.2020 to 31.08.2022, on account of overstay in the service. Petitioner also challenges the action of the respondent authorities in seeking recovery of an amount of Rs.23,31,514/- (Rupees twenty three lakh thirty one thousand five hundred fourteen) only.

3. The case, in brief, is that the petitioner was appointed as the Pharmacist in the Manja Primary Health Centre, in Karbi Anglong District on 10.10.1984 on temporary basis. The service of the petitioner was confirmed w.e.f 10.10.1984, vide order dated 12.09.1988. The Service Book of the petitioner was prepared by the authority at his initial place of posting, after submission of his school certificates and other documents. The petitioner was transferred from his initial place of posting at Karbi Anglong to Upper Doomdomia Primary Health Centre situated in the District of Nagaon in the same capacity and posted against a newly created post on 24.09.1987. Thereafter, the petitioner was released from Manja Primary Health Centre, Karbi Anglong vide order dated 08.02.1989, and accordingly, he joined in his new place of posting at Upper Doomdomia Primary Health Centre in the district of Nagaon.

4. It is contended that in the month of September, 2022, a verbal communication was received by the petitioner from the respondent No.3, i.e. the Joint Director of Health Services that there was a discrepancy as regards his date of birth recorded in his Service Book and the date of birth as per the school certificate and admit card submitted by the petitioner at the time of joining his employment. It was informed to the petitioner by the respondent authority that the date of birth recorded in his Service Book was 01.07.1963 whereas in the certificates and admit card submitted by the petitioner, his age was shown as 16 years 10 months and 00 days as on 1st of March, 1977 and accordingly as per the date recorded in the H.S.L.C certificates and admit card, the date of birth of the petitioner should be 01.05.1960 instead of 01.07.1963 as recorded in the Service Book. It was informed by the respondent No.3 that in view of the date of birth shown in the school certificates and admit card, the petitioner ought to have retired on 31.05.2020, and as such, the process of disbursal of retirement benefits to the petitioner cannot be initiated unless and until the petitioner undertakes that he would have no objection if the pay and allowances made to him during his overstayed period be adjusted towards his retirement benefits.

5. The petitioner, upon receipt of the said communication had agreed that there was a discrepancy as regards his date of birth recorded in the Service Book and his H.S.L.C Certificate, prayed that steps be taken to remove the discrepancy for smooth implementation of the process of payment of pension.

6. It is the specific stand of the petitioner that the said communication had to be issued by the petitioner under coercion and pressure employed upon him by the respondent No.3. Thereafter, the petitioner was asked to submit the original School Certificate and Admit Card for verification and for initiation of pension. It is the further case of the petitioner that the petitioner had lost the original school certificate and admit card for which he had applied for duplicate Admit Card and H.S.L.C Certificates through an application dated 31.10.2022 before the Secretary, Board of Secondary Education, Assam enclosing therewith the Po