The State of Assam and Ors. Vs Bhupen Chandra Goswami Alias Bhupen Goswam

We have heard Mr. D. Nath, learned Senior Government Advocate, Assam, for the appellants/State and Mr. P. Gohain, learned Advocate for the sole respondent.

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This writ appeal has been preferred by the Animal Husbandry and Veterinary Department, Assam, challenging the judgment dated 21^st August, 2023, passed by a learned Single Judge of this Court in WP(C) No. 3825/2020, directing the appellants/State to release the pension of the respondent, which had been stopped for the reason of the respondent having overstayed in service for five years, which fact could be detected only in the year 2019 after the retirement of the respondent in the year 2018.

¶26

The respondent is a retired Field Assistant, whose date of birth was recorded duly in the official documents, whereafter he started serving the department, and on the basis of which date of birth, he retired on completing 60 years of age in the year 2018.

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It appears that at the time of entry in the service, the respondent had produced his HSLC (Class X) certificate issued by the Board of

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Secondary Education, Assam (SEBA) and another school certificate from the Palasbari R.B. Higher Secondary School. Both the documents reflected that the respondent was 23 years and 10 months old as on 01.03.1977, which actually should have mathematically been worked out to 02.05.1953 as his date of birth. However, without any misrepresentation on the part of the respondent, the appellants/department entered the date of birth of the respondent as 01.05.1958 in the Service Book, which was not a typographical error, but an entry made on the basis of the horoscope submitted by the respondent later and relied on by the employer.

¶30

There is no dispute that the respondent continued to work for decades and demitted his office only on 31.05.2018, after completing 60 years as per his Service Book. After his retirement, he submitted his pension papers, which also were processed and the pension amount was being regularly paid to the respondent.

¶31

Later, Mr. Nath has argued, the department discovered the mismatch between the dates of birth recorded in the Service Book and the school certificates of the respondent and, accordingly, the Development Officer of the department unilaterally took a decision on 31.07.2019, to return the pension papers of the respondent and correction of his date of birth to 02.05.1953, which would have changed his retirement date to 31.05.2013; and to proceed for recovery of the overdrawn salary and allowances received by him from 01.06.2013 to 31.05.2018.

¶32

This was challenged by the respondent before the learned Single Judge, as mentioned earlier, primarily on the ground that it was unfair, as

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the department itself had accepted his birth year as 1958 and had allowed him to work till 2018 and during which period, no objections were raised regarding his date of birth or the date of his retirement.

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The learned Single Judge, by the impugned judgment, agreed with the contentions of the respondent that he had actually rendered his services till 31.05.2018 and that the department had accepted and also acted onhis date of birth as 01.05.1958 for many years without any objection. The learned Single Judge, therefore, opined that the department could not suddenly have changed the date of birth to an anterior date without conducting any inquiry, or giving the respondent any reasonable opportunity to explain the discrepancy. For those reasons, the order passed by the department, declaring that there was five years of overstay of the respondent in service, was held by the learned Single Judge to be bad in the eyes of law. A direction was given for immediately processing the pension papers of the respondent, treating his date of retirement as 31.05.2018.

¶36

Mr. Nath has questioned the afore-noted judgment on the ground that the learned Single Judge, in fact, through backdoor relied on the horoscope of the respondent, which was only mistakenly relied upon by the department while entering the date of birth of the respondent in his Service Book. However, mistakes have to be corrected and it ought not to be perpetuated. If the department had wrongly recorded the year of birth of the respondent as 1958, it should have been verified and corrected earlier.

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However, realizing that the respondent had already retired from service and had rendered his services till the date of his actual

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retirement, Mr. Nath does not insist for recovery of the salary paid to the respondent for over five years, but has sought for a direction from this Court for calculating his pension, treating his retirement year as 2013 and not 2018.

¶40

From the records of this case, it is apparent that the overstay of the respondent in his service was not on account of any misrepresentation or fraud on his part. It was not also on the assumption of any wrong principle of calculating the pay or allowance on the basis of any rule or order, which was subsequently found to be erroneous. It was only after the respondent actually retired from service that the mismatch in the recorded age of the respondent had been unearthed.

¶41

Under such circumstances, we duly appreciate the concession by Mr. Nath that for the services rendered by the respondent during his overstay, the money received by him by way of salary ought not to be clawed back or recovered. However, acceding to the other request of Mr. Nath of permitting the department to calculate the pension of the respondent by treating 2013 as the year of retirement of the respondent, which would have been the actual year of his retirement, had his date of birth been correctly recorded, would be very unfair.

¶42

Pension is, which need not be reiterated, not a bounty, but is an earned amount for the service rendered. Since there is no dispute regarding the respondent having served for five more years than his actual service period, and since there was no complaint with regard to the quality of the service rendered by him, or any misrepresentation on his part for such wrong entry regarding his date of birth,his pension could not be reduced by any logic whatsoever. That would not be in keeping

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with the decision of the Supreme Court in that regard.

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The other reason which has weighed with us is that any declaration of age made at the time, or for the purpose, of entering into government service, is to be treated as conclusive and binding on both: the employer and the employee. If the Courts do not brook of any attempt on the part of the employee to have his date of birth changed at the fag end of his career, or after his career ends, that would be the embargo for the employer as well. The employer, i.e. the State in the Veterinary Department ought to have been more circumspect and cautious and more careful in reviewing and verifying the service record of the respondent and of other employees as well. Not having done that would not give any leeway to the State to question the date of birth of an employee after his retirement, on the sole but lame plea of identifying a mistake on the part of the employer.

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For the reasons afore-noted, we do not wish to interfere with the judgment impugned in this appeal and thus we dismiss it in limine .

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JUDGE CHIEF JUSTICE

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Comparing Assistant

The State of Assam and Ors. v. Bhupen Chandra Goswami Alias Bhupen Goswam

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The State of Assam and Ors. v. Bhupen Chandra Goswami Alias Bhupen Goswam

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