Prakash Deka Vs the State of Assam and 7 Ors.

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GAHC010081322023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/2254/2023

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PRAKASH DEKA S/O- LATE PRATAB CH. DEKA, VILLAGE- MAZDIA, P.O.- MUGKUCHI, P.S.- NALBARI, DIST. NALBARI, ASSAM.

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VERSUS

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THE STATE OF ASSAM AND 7 ORS TO BE REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, ELEMENTARY EDUCATION DEPARTMENT, ASSAM, DISPUR, GUWAHATI-6.

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2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM FINANCE DEPARTMENT ASSAM DISPUR GUWAHATI-6.

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3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19.

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4:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX NEW BUILDING DISPUR-6. 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER NALBARI DISTRICT

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P.O. P.S. AND DISTRICT- NALBARI

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ASSAM.

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6:THE DEPUTY INSPECTOR OF SCHOOLS NALBARI DISTRICT P.O. P.S. AND DISTRICT- NALBARI

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ASSAM.

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7:THE BLOCK ELEMENTARY EDUCATION OFFICER PASHIM NALBARI P.O. P.S. AND DISTRICT- NALBARI

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ASSAM.

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8:THE TREASURY OFFICER NALBARI P.O. P.S. AND DISTRICT- NALBARI

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ASSAM

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B E F O R E

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Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

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JUDGMENT & ORDER

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Advocates for the petitioner : Shri A.M. Barbhuiya, Advocate Advocates for the respondents : Ms. S. Chutia, SC, Elementary

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Education Department Shri B. Deuri, State Counsel

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Date of hearing : 03.06.2025 Date of judgment : 03.06.2025

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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. For ready reference, the relevant observations are extracted herein below:

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“ 3. So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of learned counsel for the appellant that the respondent can be refused his emoluments for the period in question as no proceedings were ever initiated for inquiry as to the alleged fraud played by the respondent on the

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department. It is not denied that the respondent worked till 30-91989 and in that view we confirm that part of the impugned judgment which refers to the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today.”

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He has also relied upon the case of State of Bihar and Ors. vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 and the relevant observations of the Hon’ble Supreme Court are extracted herein below;

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“26. Again in Hari Singh v. State of Bihar [(2000) 10 SCC 284 : 2000 SCC (L&S) 832] this Court held that since the Government had never put the employee on notice to indicate that the date of birth as entered in the service book was incorrect though it could have done so and since no notice had been given to the employee concerned for accepting a date of birth other than the one entered in the service book, the order of retirement could not be sustained. From the aforesaid decision, it is evident that it was the duty of the State to put the employee on notice about his date of retirement and not having done so, the appellant was not entitled to recover the excess amount paid to the respondent.”

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In the said case, the Hon’ble Supreme Court had emphasized on the aspect of serving a notice prior to such action.

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Reliance has also been made on the case of State of Punjab & Others versus Rafiq Masih etc. reported in (2015) 4 SCC 334. In the said case, the Hon’ble Supreme Court after referring to the earlier case laws on the subject had made the following observations.

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“18. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summaries the

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following few situations, wherein recoveries by the employers, would be impermissible in law:

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(i) Recovery from employees belonging to Class-III and ClassIV service (or Group 'C and Group 'D’ service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

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(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover.”

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The learned counsel accordingly submits that the impugned action be interfered with and no deduction be made from the pensionary benefits.

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Per contra, Ms. Chutia, the learned Standing Counsel has strenuously opposed the writ petition. She has submitted that all along the Service Book was retained by the petitioner as well as the other employees of the school in question and therefore, it was not possible for the authorities to determine the date of retirement. However, the particular BEEO, Paschim Nalbari had taken some initiative to verify the contents of the Service Books and accordingly the Service Books were called for. However, the petitioner was reluctant and delayed in handing over the Service Book and even after doing so, the original HSLC Certificate was not given and subsequently done by submitting a duplicate

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certificate from which the date of birth would be deduced as 01.01.1958. Accordingly, immediate action was taken which led to the petitioner demit office vide an order dated 29.12.2021.

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She submits that the contents of the Service Book are required to be verified by the petitioner and if at all, some error had crept in while making such entries, it was the duty of the petitioner to point out the aforesaid error which he did not do and on the other hand, the petitioner had served beyond the period permitted by law by knowing fully well that he had surpassed the age of superannuation. She has also drawn the attention of this Court to the communication dated 29.12.2021 whereby the BEEO had written to the petitioner to hand over the charge and also the communication dated 13.09.2023 issued by the Director of Pension to the Deputy Inspector of Schools, Nalbari informing that the pension could not be finalized due to the pendency of this case.

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Supporting the contentions advanced by the Department, Shri Deuri, the learned State Counsel has submitted that the amount involves is public money which the petitioner is not entitled to as per law. He submits that the rules governing the services clearly stipulates the age of superannuation and knowing fully well that he had surpassed the said age, the petitioner kept on serving without even informing the authorities. He accordingly submits that the recovery which is sought to be made is in accordance with law and should not be interfered with.

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The rival submissions have been duly considered and the materials placed before this Court have been perused. It may be mentioned that pursuant to earlier direction of this Court, Ms. Chutia, the learned Standing Counsel has also produced the Service Book of the petitioner in original which has been perused.

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From the materials available including the contents of the Service Book, it appears that the date of birth of the petitioner was recorded as 01.01.1965 when the same was opened sometime in the year 2007. The HSLC Certificate which is a part of the present proceedings appears to be a duplicate one as per which the date of birth can be deduced to be 01.01.1958. Therefore, there is no manner of doubt that the petitioner ought to have retired on 31.01.2018. However, as a matter of fact, the petitioner continued in his service and it was only in the year 2021 when the authorities had detected that the petitioner was overstaying in service and had accordingly issued a letter dated 29.12.2021 directing the petitioner to hand over charge. The grievance of the petitioner, as observed above is the action of the respondent authorities to deduct the amount paid for the period 31.08.2018 to 29.12.2021 from his pensionary benefits.

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The entries in the Service Book are required to be renewed and reattached every five years which appears from the footnote of the Service Book itself. A perusal of the Service Book which has been produced in original would however reveal that the entries were made by the then Block Elementary Education Officer. The aforesaid fact has also been clearly admitted by the respondents in their affidavit-in-opposition filed on 03.12.2024, the relevant part of which is extracted herein below;

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“4. That the present writ petition has been filed by the petitioner inter alia praying for releasing his pension w.e.f. 01.02.2018 along with other retirement benefits and not to recover salary paid to him due to overstay in service from 01.02.2018 to 30.11.2021. In this regard, the deponent humbly begs to state that the petitioner was initially appointed as Stipendiary Teacher at Mahidutta L.P. School on 22.12.1998 and he joined in service on 23.12.1998. On completion of his Junior Basic Training on 17.01.2006, the petitioner was paid

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regular scale of pay. 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 .”

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The petitioner has contended that he was not aware of the wrong recording of the date of birth as 01.01.1965. However, the HSLC Certificate which was furnished to the authorities, though duplicate reveals that his date of birth is 01.01.1958. There is no attempt on the part of the petitioner to justify that his date of birth was 01.01.1965 and not 01.01.1958 for which he was given a scope by calling for his Service Book which was stated to be in the custody of the employees of that school. Though it is the contention of the respondents that there was delay on the part of the petitioner to submit the Service Book to the authorities, there is no dispute to the fact that in the HSLC Certificate (duplicate) submitted by the petitioner, the date of birth appears to be 01.01.1958.

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The aspect of overstay in service has been the subject matter of dispute in a catena of cases.

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In the case of Narasimha Sundram (supra), the Hon’ble Supreme Court had taken into consideration the aspect that in the period of overstay whether the incumbent has rendered service would be a relevant factor.

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The requirement of issuing a notice to the employee by the authorities has also been emphasized by the Hon’ble Supreme Court in the case of Pandey Jagdishwar Prasad (supra). In the case of Rafiq Masih (supra), the Hon’ble Supreme Court has laid down the parameters which are to be followed in the cases of attempt to recover for any excess payment made to an employee.

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In the instant case, it has been projected on behalf of the respondents

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that the Service Book of the petitioner was in his custody. However, perusal of the same would reveal that the Service Book was opened in the year 2007 and there is a mandate for renewal and re-attestation of the same every 5 years. In fact, it clearly appears that at least one further verification was done in the year 2009.

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This Court has also noticed that in the present proceeding there is an order dated 09.04.2024 passed by this Court whereby an interim protection was granted to the petitioner till the pendency of this writ petition.

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At this stage, Shri Deuri, the learned State Counsel has expressed a concern that there are instances when employees who had overstayed are also claiming not only the salaries for the period of overstay but also the pension for the same period including provisional pension.

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After considering the facts and circumstances as well as contentions advanced by the learned State Counsel expressing his concern for the public exchequer, this Court is of the opinion that the interest of justice would be served and the equity would be balanced by passing the following orders. This Court has also taken into consideration that it is not in dispute that in the aforesaid period, the petitioner had actually rendered his service.

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(i) The action of the respondent authorities to recover the salaries paid to the petitioner for the period of overstay namely, 31.01.2018 to 29.12.2021 from the pensionary benefits is interfered with and set aside.

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(ii) It is however made clear that for the said period, the petitioner would not be entitled to any pension or provisional pension and his pension would be calculated only from the date

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when he had handed over charge i.e., 29.12.2021.

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(iii) The direction towards payment of pension from 29.12.2021 be carried out expeditiously and completed preferably within a period of 3 (three) months from the date of furnishing a certified copy of this order and in this regard, the petitioner is directed to render full cooperation pertaining to submission of relevant documents etc.

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Writ petition accordingly stands allowed in the manner indicated above. The Service Book is returned to his the learned counsel for the Department.

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JUDGE

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Comparing Assistant

Prakash Deka v. the State of Assam and 7 Ors.

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