Recovery of excess payments is impermissible if it causes undue hardship, especially when no fraud is involved.

JUDGMENT & ORDER :

KARDAK ETE, J.

Heard Mr. N.N.B Choudhury, learned counsel for the petitioner. Also heard Mr. K. Konwar, learned Addl. Advocate General, Assam, for respondents No. 1-5, Mr. P. Nayak, learned Standing counsel, Finance, for respondents No. 6 & 9 and Mr. C. Baruah, learned Standing Counsel for the Accountant General, for 7 & 8.

2. The challenge made in this writ petition is to the order No.PRD- 12/180/2017-PRD(B)/75 dated 20.04.2018 issued by the Commissioner & Secretary to the Govt. of Assam, Panchayat and Rural Development Department, by which, an amount of Rs.7,12,342/-(Rupees Seven Lakh Twelve Thousand Three Hundred and Forty Two) only is sought to be recovered from the petitioner on account of payment of pay and allowances drawn during over stay for the period 31.01.2016 to 28.02.2017 from D.C.R.G. The petitioner also prays for a direction to pay/release regular pension and other retirement benefits to the petitioner without making any recovery.

3. The case of the petitioner, briefly put, is that he was initially appointed as Extension Officer in the Panchayat and Rural Development Department on 01.11.1985 and was promoted to the post of Block Development Officer (B.D.O) vide order dated 28.07.2014 in Srijangram Development Block. The petitioner was posted in different places of posting and finally was posted at Rangapara Development Block, Sonitpur and he has retired on attaining the age of superannuation on 28.02.2017. The date of birth of the petitioner as per record is 18.01.1956, which is reflected in the service book.

4. The authority published a final Gradation List vide Notification dated 14.12.2015 in respect of the Block Development Officers, serving under the Panchayat and Rural Development Department, Government of Assam wherein, the date of birth of the petitioner was recorded as 01.03.1957 instead of18.01.1956 by the respondent authorities.

5. It is the contention of the petitioner that he ought to have retired on 31.01.2016, however, he was allowed to continue in the service for an additional 13 months for no fault of his till 28.02.2017. Since, the petitioner has been allowed to continue in the service for an additional 13 months and released on 28.02.2017 on retirement, the pension of the petitioner should be fixed taking into account his date of actual retirement i.e. 28.02.2017 and no recovery can be made for the pay and allowances drawn during the aforesaid period.

6. Mr. N.N.B. Choudhury, learned counsel for the petitioner while referring to the letters dated 02.01.2016 and 25.01.2016 submits that, since the actual date of retirement of the petitioner was on 31.01.2016, as the date of birth of the petitioner is 18.01.1956, the petitioner had informed the respondent authority vide letters dated 02.01.2016 and 25.01.2016 clearly informing that he was due for retirement on attaining the age of superannuation. However, the respondent department has failed to serve with notice of retirement. He submits that verbally,the respondent authority informed the petitioner that he would be retired from service, on the basis of the date of birth recorded in the Gradation list, which is 01.03.1957 and therefore, he would be released on 28.02.2017, accordingly the petitioner was released on 28.02.2017.

7. Mr. N.N.B. Choudhury, learned counsel, submits that, although, the petitioner was to retire on 31.01.2016 as per his actual date of birth, he was allowed to continue till 28.02.2017, which was not the fault of the petitioner but due to the fault of the respondent authority who did not take any steps to correct the date of birth of the petitioner in the Gradation list. He refers to the affidavit-in-opposition filed by the respondent authorities to show that the mistake in the entry of wrong date of birth leading to wrong date of retirement was inadvertent human error, which clearly shows the admission of the respondent authorities that the continuance of the petitioner beyond his actual date of retirement was d