An employer is prohibited from recovering salary paid to an employee for services rendered beyond the actual date of superannuation, even if the employee's date of birth was incorrectly recorded. Salary for work performed and accepted by the employer remains the rightful entitlement of the employee.

JUDGMENT :

Heard learned counsel representing the petitioner and learned counsel representing the respondents.

2. In this writ petition, the petitioner has prayed to quash the impugned Memo No.6903 dated 21.12.2021 (Annexure-10 to the writ petition), issued by the Director, Directorate of Urban Administration, Urban Development and Housing Department, Government of Jharkhand, whereby an order has been passed to recover the salary drawn by the petitioner for the period 01.07.2014 to 30.09.2021 (87 months) i.e. the period which according to the respondents, the petitioner has worked beyond his actual date of superannuation. Further, by virtue of the aforesaid order, the respondents had directed to lodge an F.I.R. against the petitioner.

3. Learned counsel representing the petitioner submits that the actual dispute raised by the respondents is in respect of the date of birth (D.O.B.) of the petitioner. As per him, the actual D.O.B. of the petitioner is 30.06.1964, as per the Matriculation certificate. The said Matriculation certificate, according to the petitioner, was issued by the Bihar School Examination Board (hereinafter referred to as “BSEB”) and it is not the case of any of the parties that the same is forged. He submits that D.O.B. of the petitioner recorded in his Matriculation certificate as 30.06.1964 was verified by the Department from the BSEB. The report of the BSEB has been annexed as part of Annexure-5 and finds place at page-27 of this writ petition. The said document has been signed by the Vigilance Officer of the BSEB, wherein D.O.B. of the petitioner has been certified to be 30.06.1964. As per the learned counsel, it is only when the petitioner was adjusted in the Urban Development Department, a private complaint was filed bringing to the notice of the Authority that the petitioner has played fraud with the employer and has entered in service by giving a wrong D.O.B. In spite of the fact that the D.O.B. of the petitioner was earlier verified from the BSEB, the respondents again verified the same. Surprisingly, this time the BSEB certified that the D.O.B. of the petitioner recorded in the records is 30.06.1954. Based on the said document, it was held that since the D.O.B. of the petitioner is 30.06.1954, he would have superannuated on 30.06.2014 and as the petitioner has worked beyond the aforesaid period till 2019, his continuance in service beyond the period 2014 is illegal, thus a show cause notice was issued to the petitioner.

3.1. Petitioner’s counsel further submits that the petitioner replied but ignoring the earlier certificates, the impugned order was passed. As per the petitioner, the impugned order is absolutely illegal, as his D.O.B. cannot be reopened at the belated stage by the respondents. He contends that no departmental proceeding was initiated against the petitioner before passing of the impugned order, which also makes the entire procedure bad in the eyes of law.

3.2. He lastly submits that there are two reports by the same Authorities giving different D.O.B.s of the petitioner but in view of the fact that first report did not certify the Matriculation certificate of the petitioner to be forged, the respondents could not have relied upon the second report. He also submits that there was no lower age limit for passing of Matriculation examination and the respondents cannot take a plea that the petitioner had passed the matriculation examination at the age of 11 years. To substantiate his claim, he relies up