Joymati Choudhury Vs the State of Assam and 6 Ors.

Heard Mr. A. Khanikar, learned counsel for the petitioner. Also heard Mr. N. Upadhyay, learned standing counsel, Irrigation Department appearing for the respondent Nos. 1, 5 & 6, Mr. A. Chaliha, learned standing counsel, Finance Department, Assam appearing for the respondent Nos. 3 & 7 and Ms. M. Barman, learned Govt. Advocate, Assam appearing for the respondent No. 4.

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The petitioner in the present writ petition has raised a grievance with regard to a

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recovery of an amount of Rs. 7,41,114/- (Rupees Seven Lakhs Forty One Thousand One Hundred Fourteen) from her pensionary benefits on account of overstay in service for the period from 30-04-2017 to 30-04-2018. The petitioner was initially recruited as a stenographer on 02-08-1980 in the establishment of the respondent No. 6. At the time of opening of the service-book of the petitioner basing on the matriculation certificate,

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produced in the matter by the petitioner, her date of birth came to be recorded as 30-041958. The petitioner on the basis of said date of birth, recorded in her service-book, continued in her services and retired from her service on 30-04-2018, on reaching the age of superannuation. After the petitioner had proceeded on superannuation, the pension and pensionary proposal in respect of the petitioner was prepared by the authorities in the Irrigation Department and it is at that point of time that it was noticed by the authorities that the date of birth recorded in the service-book of the petitioner as “30-041958” was erroneous and actually basing of HSLC certificate, the date of birth of the petitioner works out to “30-04-1957”. Accordingly, it was held that the petitioner was required to superannuate from service on “30-04-2017” and not on “30-04-2018”.

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The above being the position, the matter was further processed and the petitioner, on account of the erroneous date of birth recorded in her service-book, having continued in her services for a period of around one year w.e.f. 30-04-2017 to 30-04-2018, the petitioner was held to be not entitled to the salaries drawn by her during the said period and the same was required to be so recovered. Accordingly, basing on the said projection, the pension proposal of the petitioner was submitted to the AG(A&E), Assam for disbursement of the same, with a requirement that an amount of Rs. 7,41,114/- (Rupees Seven Lakhs Forty One Thousand One Hundred Fourteen) be deducted from her DCRG benefits, towards recovery of the salaries received by her during the period of her overstay w.e.f. 30-04-2017 to 30-04-2018.

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Being aggrieved the petitioner has instituted the present writ petition.

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Mr. Khanikar, learned counsel for the petitioner by reiterating the facts noticed,

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hereinabove, has submitted that the petitioner admittedly having worked during the period from 30-04-2017 to 30-04-2018, the salaries drawn by her during the said period would not mandate to be recovered. He submits that from the processing of the matter as well as from the inter-office communications issued by the respondent authorities, it is clear that the respondent authorities have not held the petitioner to be, in any manner, responsible for erroneous recording of her date of birth in her service book at the time it was so opened, after her initial appointment in the department concerned. He submits that, accordingly, in terms of the decision of the Hon’ble Supreme Court in the case of State of Punjab Vs. Rafiq Masih (white washer) reported in (2015) 4 SCC 334 , the recovery as now effected from the DCRG benefits of the petitioner would not be permissible and the said amount would be required to be reauthorized to the petitioner, herein.

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Mr. N. Upadhyay, learned standing counsel, Irrigation Department, Assam, submits that the date of birth of the petitioner was recorded in her service-book by the respondent No. 6 on 07-01-1981. The particulars of the petitioner as recorded in the service-book including her date of birth was accepted to be correct by the petitioner by appending her signature thereon. Accordingly, Mr. Upadhyay submits that in the event the date of birth was erroneously recorded, the same was to the knowledge of the petitioner. However, she did not raise any objection thereto. Accordingly, he submits that the recovery now effected from the DCRG benefits of the petitioner would not be permissible to be refunded to her.

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I have heard the learned counsel for the parties and have also perused the

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materials available on record.

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It is an admitted position of fact that the date of birth of the petitioner was recorded in her service-book as “30-04-1958”. The said date of birth was so recorded basing on the disclosure made in the HSLC certificate of the petitioner wherein, her age was recorded as 15 years 11 months as on 01-03-1973. It is on the basis of the such age as recorded in the HSLC certificate of the petitioner, the date of birth of the petitioner as “30-04-1958” was computed by the respondent authorities. The petitioner, herein, only by way of appending her signature to the service-book cannot be held to have the knowledge of a wrong date of birth being recorded in the matter, when such date of birth was computed by the Superintending Engineer of the Irrigation Department. Accordingly, the contention of the learned counsel for the respondents that the petitioner had the knowledge of the wrong date of birth recorded in her service-book stands rejected. This Court notices that the petitioner had continued in her service with the date of birth as “30-04-1958” and basing, thereon, had superannuated from her services w.e.f. 30-042018. It is only after the superannuation of the petitioner when a pension proposal was being prepared the erroneous recording of the date of birth in her service-book had come to the notice of the authorities and basing, thereon, the respondent authorities had proceeded to arrive at a decision that the salary drawn by the petitioner after 30-04-2017 till 30-04-2018, would be mandated to be recovered and accordingly, in terms of the stipulation made in this connection, the office of the AG(A&E), while authorizing the pension and pensionary benefits had proceeded to recover an amount of Rs. 7,41,114/-, therefrom.

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From the materials brought on record, this Court finds that there is no allegation of the petitioner being in any manner responsible for the wrong recording of her date of birth in her service book. This Court also finds that the petitioner had not suppressed any material, mandated for computing for her date of birth. Further, the date of birth as recorded in the service book of the petitioner at the time of initial entry of her service, having not being modified and/ or altered by following the due procedure mandated under law by the respondent authorities during her service tenure, the respondent authorities cannot now basing on the same take any coercive measure against the petitioner, herein. Support in this connection is from the decisions of the Hon’ble Supreme Court in the case of State of Bihar Vs. Pandey Jagadishwar Prasad , reported in (2009) 3 SCC 117 , State of Punjab Vs. Rafique Masih (white washer) , reported in (2015) 4 SCC 334 , State of Punjab & Haryana Vs. Jagdev Singh , reported in (2016) 14 SCC 267 , Thomas Daniel Vs. State of Kerala , reported in (2022) SCC OnLine SC 536 .

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The decisions of the Hon’ble Supreme Court noticed, hereinabove, applies with full force to the facts of the present case and accordingly, the recovery effected from the pension and pensionary benefits of the petitioner is held to be not maintainable and accordingly, the recovery as so made, stands interfered with.

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The respondent authorities are directed to authorize to the petitioner an amount of Rs. 7,41,114/- (Rupees Seven Lakhs Forty One Thousand One Hundred Fourteen) within a period of 02 (two) months from the date of receipt of a certified copy of this order. The petitioner now having been authorized her salary for the period w.e.f. 30-04-2017 to 30-

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04-2018, the petitioner would now be liable to receive her pension and pensionary benefits only w.e.f. 01-05-2018. In the event, the petitioner has been released her pension and pensionary benefits w.e.f. 01-05-2017, while authorizing to the petitioner the amount of Rs. 7,41,114/-, the amount of pension or provisional pension as authorized to the petitioner be adjusted and thereafter, only the balance amount remaining be released to the petitioner.

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With the above observations and directions, the present writ petition stands disposed of.

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JUDGE

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Comparing Assistant

Joymati Choudhury v. the State of Assam and 6 Ors.

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Joymati Choudhury v. the State of Assam and 6 Ors.

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