ORDER

(As per Hon’ble Mr. Sudhi Ranjan Mishra, Judicial Member)

The OA is filed by the applicant seeking the following relief:

“i) to call for the records pertaining to the order passed by the respondent No.3 in proceedings No. PEN/NED/20207091100172/ DCRG/ dt. 10.02.2021 and letter No. APN/NED/FMA dt. 19.01.2021 wherein the respondents have illegally recovered and continuously recovering the and contrary to law declared by the Hon’ble Apex Court in Rafiq Masih case and decision of the Hon’ble Tribunal in OA No. 670/2019 dt. 02.03.2020 and the same is illegal, arbitrary and violative of principles of natural justice and contrary to the Articles 14 and 16 of the Constitution of India and set aside the same.

ii) Consequently, direct the respondents to refund the recovered amount with interest at the rate of 18% and also direct the respondents not to recover the pay and allowances paid from the applicant for the period of overstayal of Rs.7220/- from Pension..”

2. The respondents contested the matter and filed reply statement.

3. Heard learned counsel for the parties and perused the pleadings and material on record.

4. The case of the applicant is that he was appointed as Khalasi Helper, Works on 04.11.1979 under the administrative control of the Senior Section Engineer, Aurangabad and having rendered 32 years of service, he retired on 05.06.2020. It is submitted by him that his date of birth was wrongly mentioned in the Service Register as 31.05.1958 instead of 09.07.1960 and on coming to know about the same, he made application duly enclosing the date of birth certificate issued by the St. Xavier School, Manmad to the 1^st respondent on 05.12.2019. While so, the 2^nd respondent vide order dt. 05.06.2020 informed the applicant that he is terminated from service with immediate effect and he is discharged from Railway service for all purposes w.e.f. 05.06.2020 as his request for alteration of date of birth has not been agreed to by the competent authority.

5. It is the contention of the applicant that, admittedly, he rendered services till 05.06.2020 and the respondents ought to have taken the service for all purposes till 05.06.2020. He is not challenging the rejection of his claim for change of date of birth, but only the consequential proceedings. The 3^rd respondent issued PPO along with the settlement proceedings dt. 10.02.2021, duly recovering an amount of Rs.5,66,279/- from the gratuity on the ground of overpayment for the period from 31.05.2018 to 31.05.2020. The 3^rd respondent has again addressed letter to the Bank on 19.01.2021 to recover a further amount of Rs.3,90,678/- from the arrears of pension and the said amount was also recovered. As per the PPO, the commuted portion of Rs.7220 is to be deducted from pension from 18.12.2020 to 17.12.2035 and accordingly, the respondents are deducting the said amount every month from his pension. It is the contention of the applicant that the said recovery is contrary to the order of the 2^nd respondent discharging the applicant w.e.f. 05.06.2020 for all purposes.

6. It is further contended by the applicant that as he has legally discharged his duties up to 05.06.2020, he is entitled for pay and allowances till that date and he is not at fault for the alleged overstayal/ overpayment. The said recovery is contrary to the law laid down by the Hon’ble Supreme Court in the State of Punjab & Ors v. Rafiq Masih. He has also cited the order of this Tribunal in OA 670/2019 dt. 02.03.2020 in support of his case.

7. The respondents in their reply stated that as per the service register, the date of birth of the applicant is 02.05.1958 and he had attained superannuation on 02.05.2018 and the applicant is deemed to have retired from service on 31.05.2018, but not 5.06.2020, as claimed by him. Rule 225 of IREC provides that the date of birth declared at the time of entry shall be deemed to be conclusive. The applicant submitted application seeking correction of his date of birth and the same was sent to the