Disposed

Sameer Ahemad Son of Shri Islam Ahemad v. State of Rajasthan

Rajasthan HC1 Feb 2023CW/13222/2020

Case brief

AI extract

What is this about?

The High Court rejected the petitioner's claim for refunding recovered salary, holding he accepted the corrected date of birth inducing continued service. However, it directed the Pension Department to process his post-retiral benefits claim within five weeks with interest provisions for delay.

What did the court decide?

Directed Respondent-Pension Department to process post-retiral benefits within five weeks; 6% interest if delayed.

Sameer Ahemad Son of Shri Islam Ahemad Vs… — Pension and Retirement Benefits | Rajasthan HC (2023)

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[2023/RJJP/001107]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 13222/2020

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Sameer Ahemad Son Of Shri Islam Ahemad, Aged About 60 Years, Resident Of Jheelda Ki Dhani, Udaipur Gilariya, Village Khoh Nagoriyan, Jagatpura Road, Jaipur (Raj.)

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----Petitioner

¶6

Versus

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State of Rajasthan, Through Additional Chief Secretary, Department Of Home, Government Secretariat, Jaipur.

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Director General Of Police, Ats And SOG Rajasthan, Ghatgate, Near Ankur Cinema, Jaipur (Raj.).

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Additional Director General of Police, ATS And SOG Rajasthan, Ghatgate, Near Ankur Cinema, Jaipur (Raj.).

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Superintendent of Police ATS, Rajasthan, Ghatgate, Near Ankur Cinema, Jaipur (Raj.).

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Superintendent of Police (Administration) CID (CB) Rajasthan, Jaipur, Police Headquarter, Lal Kothi, Jaipur (Raj.).

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Director Pension Welfare Department, Jyoti Nagar, Jaipur (Raj.).

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----Respondents

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For Petitioner(s)	: Mr.Iliyas Khan, Adv.
For Respondent(s)	: Mr.Rupin Kala, GC with Mr.P.S.Naruka, Adv.
	Mr.Prashant Vijay, Adv. for Mr.Rohit
	Choudhary, Dy.G.C.

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HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

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Order

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01/02/2023

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The instant writ petition has been filed by the petitioner challenging the order dated 21.10.2020, whereby the respondents have revised the fixation of pay of the petitioner on attaining the

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age of superannuation and further recovery was also made effective from 31.07.2017 against the excess payment made to the petitioner.

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The petitioner has also prayed for grant of release of pension, gratuity, PF and other retiral benefits, as per the pay fixation made prior to issuance of the order dated 21.10.2020.

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The petitioner also claims that the respondents be directed to refund the amount of salary for the Month of June, 2020 i.e. Rs.75287/-, which was wrongly deducted by the respondents and the petitioner further prays for grant of salary for the month of July, 2020 and grant compensation of Rs.5,00,000/-.

¶25

Learned counsel for the petitioner submitted that the petitioner was working in a Police Department as Constable since his initial appointment on 18.10.1982 and the petitioner came to be retired on attaining the age of superannuation by issuance of the order dated 16.06.2020 with effect from 31.08.2020 and his date of birth was shown as 15.08.1960.

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Learned counsel submitted that after issuance of the order dated 16.06.2020, the respondents issued an order on 28.07.2020 (Annex.3), whereby a clerical mistake of date of birth of the petitioner was rectified by treating it as 15.05.1960 instead of 15.08.1960.

¶27

Learned counsel submitted that amended superannuation order dated 29.07.2020 was issued by the respondents, whereby the date of superannuation of the petitioner was treated as 31.05.2020.

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Learned counsel for the petitioner submitted that the petitioner was allowed to work up to 20.07.2020 and as such the

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respondents have wrongly issued the order dated 21.10.2020 by passing an order of recovery.

¶33

Learned counsel further submitted that the petitioner had never misrepresented the Authorities about his date of birth and on their own will if they continued him to work up to 20.07.2020 and further they treated his date of birth as 15.08.1960, then the petitioner cannot be penalized by the respondents by way of issuing order of recovery and as such they are required to pay all the benefits to the petitioner.

¶34

Learned counsel for the petitioner submitted that though interim order was passed by this Court on 10.11.2020, while issuing notices, a direction was also given to release the provisional pension, however, since the recovery was already effected before passing the interim order, the respondents are required to pay back the aforesaid amount.

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Learned counsel for the petitioner has placed reliance on the following judgments:-

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State of Punjab Vs. Rafiq Masih reported in (2015) 4 SCC 334;

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2. Thomas Daniel Vs. State of Kerala & Ors. (Civil Appeal No.7115/2010) decided on 02.05.2022;

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D.B. Special Appeal Writ No.75/2017 (Ajmer Vidhyut Vitran Nigam Ltd. & Ors. Vs. Ramesh Chandra Joshi) dated 19.05.2017;

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S.B.Civil Writ Petition No.5553/2014 (Mukan Singh Rajpurohit Vs. State of Rajasthan & Ors.) decided on 12.04.2017.

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Learned counsel, on the strength of these judgments, submitted that if illegal recovery has been made from the salary of the petitioner and there has been no misrepresentation on his part, then the respondents cannot with hold the payment of actual working days of the petitioner and further no recovery can be made.

¶44

Per contra , Learned Govt. Counsel Mr.Rupin Kala appearing for the respondents submitted that actual date of birth of the petitioner is 15.05.1960 and as such he has drawn attention of this Court towards (Annex.1) i.e. appointment order of the petitioner, where his date of birth is mentioned as 15.05.1960.

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Learned counsel for the respondents further submitted that the petitioner himself had submitted an application on 20.07.2020, which has been filed as Annex.R-1 along-with the reply, whereby the petitioner had admitted that wrong date of birth was recorded in his service record i.e. 15.08.1960, while his actual date of birth was 15.05.1960 and as such the petitioner himself had requested that the salary which the petitioner had drawn for the month of June, 2020 of Rs.75287/- was required to be deposited by him and accordingly, the petitioner prayed that the revised Post Retiral Benefits may be issued in his favour.

¶46

Learned counsel for the respondents further submitted that the Authorities inadvertently issued the order of superannuation of the petitioner and further the petitioner also mislead the Authorities at the time of recording date of birth in the service record and as such no undue benefit may be allowed to the petitioner.

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Learned counsel for the respondents further submitted that a misc. application has been filed, wherein documents have been placed on record and amended order dated 21.10.2020 has been issued and the salary of the petitioner has been revised, as per the option given by the petitioner on 01.01.2016.

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Learned counsel submitted that the grievance raised by the petitioner has been remedied by the Department itself and as such the relief, which has been claimed by the petitioner has been given by the Department itself.

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Learned counsel for the respondents further submitted that the Post Retiral Benefits of the petitioner are required to be released by the Pension Department and as such the Administrative Department i.e. the Police Department has already sent relevant papers to the Pension Department for release of his pension on 02.09.2020 and as such due payment of Post Retiral benefits will be given to the petitioner by the Pension Department.

¶53

I have heard the submissions made by learned counsel for the parties and perused the material available on record.

¶54

This Court finds that the date of birth of the petitioner is 15.05.1960 and the same is evident from the time of giving first appointment to the petitioner.

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This Court further finds that the date of birth of the petitioner was inadvertently recorded in service record as 15.08.1960 and the same will not confer any right in favour of the petitioner to claim that he ought to have been continued in services on the basis of his date of birth, to be taken into account from 15.08.1960 till 30.08.2020.

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This Court further finds that the petitioner, after his retirement, has filed an application before the Authorities that he is prepared to deposit the amount of salary, which he had drawn for the Month of June, 2020 and as such the petitioner voluntarily deposited the amount of salary which he had wrongly drawn for the month of June, 2020 and as such Rs.75,287/- was voluntarily deposited by the petitioner.

¶60

The submission of learned counsel for the petitioner that since the petitioner was not at fault and the respondents effected the recovery against the petitioner and as such the said money is required to be refunded to him, suffice it to say by this Court that if the petitioner himself has claimed his date of birth to be 15.05.1960, the petitioner ought to have been retired accordingly on 31.05.2020 and he would not have continued in the Month of June, 2020.

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This Court further finds that the petitioner since has given in writing that the recovery may be effected against him, it would be too late in a day to say that the recovery order, which was passed, is required to be set aside by this Court.

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This Court, accordingly finds that the prayer of the petitioner to refund the amount cannot be accepted.

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The reliance placed by learned counsel for the petitioner that the judgments passed by the Apex Court has laid down the parameters, where recovery orders have been set aside as in the case of State of Punjab Vs.Rafiq Masih (supra) and the case of the petitioner does not fall in any of the exception, where recovery orders can be set aside.

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The reliance placed by learned counsel for the petitioner on the judgment passed by the Apex Court in the case of Thomas Daniel Vs. State of Kerala & Ors. (supra), this Court after going through the judgment passed by the Apex Court finds that the issue before the Apex Court was in respect of recovery made after 10 years of retirement of an employee on the ground of wrongly given increment to the said employee. This Court finds that the said judgment has no application in the present facts of the case.

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Learned counsel for the respondents also places reliance on the judgment passed by the Apex Court in the case of Chandi Prasad Uniyal & Ors. Vs. State of Uttrakhand & Ors. reported in 2012 (5) SLR 607 (S.C.) . Learned counsel on the strength of the said judgment submitted that if there is a wrong fixation or grant of wrong benefit on account of some mistake of the delinquent employee, on a representation being made, such recovery can always be effected from the amount, which has been paid to such employee.

¶69

The grievance in respect of the petitioner with regard to release of post retiral benefits, needs to be taken care by this Court. This Court finds that if the petitioner has been retired on attaining the age of superannuation even with effect from 15.05.2020, the respondents are required to pay post retiral benefits without any further delay.

¶70

The amended orders, have been placed on record for fixing the petitioner in proper pay scale and further his pension papers are said to be sent by the Police Department to the Pension Department. The Pension Department is now required to

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immediately process the claim of the petitioner for grant of post retiral benefits.

¶75

This Court accordingly, disposes of the present writ petition with a direction to the respondent-Pension Department to immediately process the papers of the petitioner relating to grant of post retiral benefits and necessary exercise may be undertaken within a period of five weeks, from the date of receipt of certified copy of this order.

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This Court makes it clear that if the respondents would not finalize the claim of the petitioner of post retiral benefits within a period of five weeks from the date of receipt of certified copy of this order, the petitioner will be entitled for interest @ 6 % per annum, after a period of five weeks till payment is made to him.

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(ASHOK KUMAR GAUR),J

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Monika/42

Sameer Ahemad Son of Shri Islam Ahemad v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Sameer Ahemad Son of Shri Islam Ahemad v. State of Rajasthan

Case brief

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What did the court decide?

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