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.

JUDGMENT :

Sanjay Kumar Medhi, J.

1. The instant petition has been filed under Article 226 of the Constitution of India challenging inter-alia the action of the respondent authorities in purporting to make recovery from the pensionary benefits of the petitioner the amount for which the petitioner had overstayed in service.

2. As per the facts projected, the petitioner was initially appointed as a Stipendiary Teacher at Bongaon Mohidutta L.P. School, Nalbari on 22.12.1998. In due course of time, he had passed the Departmental Basic Training Course and thereafter was granted the regular time scale of pay.

3. The petitioner contends that his date of birth was 01.01.1958 and therefore, his date of retirement would have been 31.01.2018. However, the petitioner had overstayed till 30.11.2021. It is the case of the petitioner that for no fault of his, the overstay had occurred and on its detection, he was released from service. It is this period of service from 01.02.2018 to 30.11.2021 which forms the subject matter in which the salaries paid to the petitioner is sought to be deducted from the pensionary benefits.

4. I have heard Shri A.M. Barbhuiya, learned counsel for the petitioner. I have also heard Ms. S. Chutia, learned Standing Counsel, Elementary Education Department whereas Shri B. Deuri, learned State Counsel has represented the other official respondents.

5. Shri Barbhuiya, the learned counsel for the petitioner has, at the outset submitted that initially he had approached this Court by filing WP(C)/2655/2022 which however was dismissed on withdrawal as till that time, there was no order issued for recovery. He however informs this Court that liberty was granted to the petitioner and therefore the present writ petition has been filed. It is submitted that at the time of entry into the service in the year 1998, the date of birth of the petitioner was wrongly recorded as 01.01.1965 instead of 01.01.1958. He has submitted that such entry was made by the concerned Officer and the petitioner, though had put his signature was never aware of the same. He has also contended that the petitioner had submitted the original HSLC Certificate to ascertain the date of birth at the time of entry into the service in spite of which the error had crept in. He submits that the petitioner did not have any role in such incorrect recording of his date of birth in his Service Book and accordingly, the attempt to recover the salaries for the aforesaid period from the pensionary benefit is not permitted in law.

6. The learned counsel has also drawn the attention of this Court to the affidavit-in-opposition filed by the respondent no. 3 on 03.12.2024 and has referred to paragraph 4 wherein it has been stated that the Service Book of the petitioner was opened on 30.04.2007 and at that time his date of birth was wrongly recorded as 01.01.1965 by the then BEEO, Paschim Nalbari. He submits that from the aforesaid averments made in the affidavit-in-opposition, it becomes clear that the petitioner did not have any role in such incorrect recording.

7. In support of his submission, the learned counsel for the petitioner has relied upon the case of State of Bihar vs. Narasimha Sundram reported in AIR 1994 SC 599 in which it has been laid down that for the period of service rendered, no recovery should be made