Recovery of salary from employees who rendered service beyond retirement age is impermissible unless justified under specific legal principles outlined in relevant case law.

JUDGMENT :

SANJAY KUMAR MEDHI, J.

The approach to the writ court under Article 266 of the Constitution of India has been made with the following prayer:

“In the premises aforesaid, it is most respectfully prayed that Your Lordship would graciously be pleased to admit this petition, call for the records, issue Rule calling upon the respondents to how cause/causes as to why a writ of Certiorari and/or Mandamus and/or any other appropriate writ or direction should not be granted and upon cause or causes being shown be pleased to make the Rule absolute in the following terms:

A. Quash and set aside the Order No. DYRS/ESTT-23/2023/962 dated 29.9.2023 (ANNEXURE-10) whereby it was ordered that the pay for 16 months overstayed by the petitioner is to be refunded by the petitioner either in lump sum or deducted from his pension gratuity.

B. Direct the State respondents to refund/pay the petitioner the amount of Rs. 9,74,310/ (Rupees Nine lakh Seventy Four Thousand Three Hundred and Ten) which has been deducted from his pensionary/retiral benefits with an interest @ 12% w.e.f., 9.7.2024 till the date of payment.

And/or pass any such further or other order/orders, as Your Lordships may deem fit and proper in the facts and circumstances of the case.”

2. As per the facts projected, the petitioner was initially appointed as a Substitute LDA on 02.01.1987 for a period of 2 months in the office of the District Sports Office, Mokokchung. However, the said arrangement was allowed to continue, and vide an order dated 29.03.1989, his service period was regularised w.e.f. 01.04.1989. It is the case of the petitioner that subsequently, he was promoted to the post of UDA in the year 2018. The petitioner has also annexed a seniority list published in the year 2019 in which, he has been placed at Sl. No. 24 and in the said seniority list, his date of retirement has been shown as 31.03.2024. However, vide a communication dated 17.04.2023 issued by the Director to the Department, the date of entry of the petitioner into the service was sought for. It appears that the date of entry of the petitioner into the service was considered as 02.01.1987, i.e. the date when the petitioner was inducted as a Substitute LDA. Thereafter, the petitioner got verbal information that he ought to have retired in February, 2022 and accordingly, he had submitted a representation that such retirement should be in March, 2024. Vide an order dated 30.06.2023, there was a direction to immediately stop the pay of the petitioner on account of overstay in service. It was further directed that the release order, pension papers and other matters pertaining to his service should be kept in abeyance.

3. Thereafter vide the impugned order dated 29.09.2023, 16 months’ salary from February, 2022 to May, 2023 was directed to be refunded by the petitioner, either in lump sum or from the pension gratuity. The petitioner was also released from service on 19.10.2023. The petitioner, thereafter had submitted a representation dated 24.11.2023 to the Director along with a Non-drawal Certificate.

4. I have heard Ms. Catherine Anichar, learned counsel for the petitioner. I have also heard Ms. S Mere, learned Govt. Advocate, Nagaland as well as Shri Joshua Sheqi, learned Standing Counsel, Accountant General, Nagaland.

5. Ms. Catherine, learned counsel for the petitioner has submitted that the initial appointment though made on 02.01.1987 was on a very temporary basis as a Substitute LDA and the substantive appointment was done only vide an order dated 29.03.1989 w.e.f. 01.04.1989. She has submitted that all along, the entry of the petitioner into the service has been recorded as 01.04.1989 and in the seniority list published in the