High Court
Case Details
WP(C) 3296/2011 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL)
Legal Reasoning
Heard Mr. A. K. Sharma, learned counsel for the petitioner as well as Mr. A. Dek a, learned Standing Counsel, Education Department. 2. The petitioner who has since retired from service on attaining the age o f superannuation on 28.02.2010 has filed this writ petition challenging the comm unication dated 29.04.2011, by which, the DI of School, Guwahati informed her ab out the proposed recovery of excess drawal of salary w.e.f. 01.10.2004 to August , 2009. As per the said communication, although her date of retirement on the ba sis of date of birth (01.10.1944) was on 30.09.2004, but she continued to serve and eventually retired w.e.f. 28.02.2010. 3. The petitioner had appeared in the then Matric Examination in 1961. In t he certificate issued to her by the University of Guwahati, there was no mention of her date of birth. The certificate is dated 12.09.1961 certifying her cleari ng the Matric Examination, 1961 in 3rd Division. 4. Annexure-C school certificate dated 29.05.1979 was issued by the Princip al of the School, in which the petitioner had studied leading to her Metric Exam ination certifying her age as 29 years 1 month 6 days on 01.03.1979. If the said age is taken into account, then her date of birth is 25.02.1950 and in fact on the basis of such date of birth she retired from service w.e.f. 28.02.2010. Be i t stated here that the petitioner was appointed as L.P. School teacher vide orde r dated 05.03.1982. 5. The petitioner was issued with the show cause notice dated 15.10.2009 st ating therein that if the aforesaid school certificate is taken into account the n she had appeared in the Matric Examination at the age of 11 years 2 months 25 days as against the minimum 15 years of age. The petitioner was directed to clar ify the position. In response to the said show cause notice, the petitioner by h er reply dated 29.10.2009 contended in reference to her Matric Examination that in those days there was no provision of recording of age. She also pleaded that she should be allowed to retire from service taking her date of birth on the bas is of aforesaid certificate and as was allowed to other teachers. However, there was no specific response to the plea taken that she could not have appeared in the Matric Examination at the age of 11 years 2 months 25 days. 6. By Annexure-H communication dated 06.04.2011 addressed to the DI of Scho ol, Guwahati by the Director of Elementary Education, Assam, it was communicated that the aforesaid school certificate was enquired into and as per the report f urnished by the Inspector of Schools, Tezpur, the age of the petitioner was 12 y ears 5 months 23 days on the date of admission to the school on 25.03.1957 in Cl ass-VII. Based on that, it was conveyed by the said communication that her date of birth is 01.10.1944 and ought to have retired from service on attaining the a ge of superannuation on 30.09.2004. Thereafter, the DI of School, Guwahati, issu ed the impugned order dated 29.04.2011 requiring recovery of excess drawal of pa y and allowances for the period from 01.10.2004 to August, 2009. Mr. Sarma, learned counsel for the petitioner placing reliance on the de 7. cisions of the Apex Court reported in (2005) 6 SSC 49 (State of U.P. Vs. Shiv Na rain Upadhyaya); 2009 3 SSC 117 (State of Bihar Vs. Pandey Jagdiswar) and the Di vision Bench decision of this Court reported in 2003 (2) GLT 241(Abdul Khalique Laskar Vs. All Assam Public Health Employees Association) submits that the date of birth recorded in the Service Book being accepted, the authority at the fag e nd of service career of the petitioner could not have altered the same so as to the order for recovery of alleged excess drawal of salary by the petitioner for the aforesaid period. He submits that a particular date of birth having been acc epted, the authority in the Education Department could not have passed the impug ned order requiring recovery of salary for the period in question, which the pet itioner had earned by dint of her service rendered. 8. Mr. Deka, learned Standing Counsel, Education Department, on the other h and, submits that the impugned action on the part of the respondents is not liab le to the interfered with on two counts, firstly, there being falsification of t ruth on the part of the petitioner in respect of the school certificate, the pet itioner is not entitled to any equitable relief. Secondly, the actual fact being that the petitioner was only 11 years 2 months 25 days on the date of Matric Ex amination held in 1961, she could not have appeared in the said examination and thus there being apparent falsification of truth, the petitioner is not entitled to any relief on technicalities. I have given my anxious consideration to the submissions made by the lea 9. rned counsel for the parties and also considered the entire materials on record. My findings and conclusions are as follows: 10. If we go by the certificate dated 26.05.1979 (Annexure-C), on which, the petitioner has placed reliance, then her date of birth is 25.02.1950 and if tha t be so, she was hardly 11 years old at the time of her appearance in the Matric Examination in 1961. In the normal circumstances, a candidate appears in the sa id examination at the minimum age of 15 years. Coupled with this position, upon verification by the Inspector of Schools, Tezpur, it was found that as per the e ntries recorded in the admission register of the school, in which the petitioner had studied, her age on the date of admission on 23.03.1957 in class VII was on ly 12 years 5 months 23 days. Counting on that basis, her date of birth comes to 1.10.1944 and if that be so, she was to retire on attaining the age of superann uation on 30.09.2004, instead she continued in service till she was made to reti re on 28.02.2010. 11. Now, the question is as to whether the authority could have ordered for recovery of the pay and allowances of the petitioner, which had already drawn fo r the period of over stay. The decisions on which, Mr. Sarma, learned counsel fo r the petitioner has placed reliance are primarily on the point of maintaining t he entries in the Service Book and not to make any order for recovery for the pe riod of over stay on the basis of such entries, even if later on it is found tha t such entries are incorrect. I have very carefully considered the said decisions. Needless to say tha 12. t the ratio of a decision will have to be understood in the background of each c ase. Here is a case, in which, if the impugned order dated 29.04.2011 is interfe red with then there will be approval to the fact of appearing in the Matric exam ination by the petitioner at the age of 11 years 2 months 25 days. There will al so be approval of false certificate issued under the letter head Principal of th e School, in which the petitioner had studied. As per the report of the Inspecto r of Schools, Tezpur, the actual age recorded in the admission register of the s chool, her date of birth is 01.10.1944 and on that basis, she would have retired on 30.09.2004. 13. However, the fact of the matter is that the above facts were enquired by the authority in the Education Department only at the fag end of the service ca reer of the petitioner, when she was left with only 4 months of service. Thus, h ere is a case in which both the parties i.e. the petitioner and the respondents are wrong in their approach. If the petitioner had suppressed her age and/or the re was falsification of documents, the authority ought to have enquired the matt er without any delay but instead allowed the petitioner to retire from service g iving her full term on the basis of wrong recording of date of birth. At the sam e time, the contribution of the petitioner to such a happening also cannot be ig nored. When she obtained the certificate dated 26.05.1979 (Annexure-C), she was aware that the entries made therein are not correct. She knew it that she could not have appeared in the Matric Examination at the age of 11 years. 14. Appreciating the aforesaid facts, in my considered opinion, it is a case of falling under the category of contributory negligence on the part of both th e parties.
Decision
15. In view of the above, more particularly, when the petitioner has served in the School for the period in question, I am of the considered opinion that en ds of justice would be met, if the respondents are permitted to make recovery of only 50% of the pay and allowances instead of full recovery for the period in q uestion. Accordingly, the pension case of the petitioner shall be finalized and she shall be paid pensionary and other retirement benefits deducting 50% of the pay and allowances, she had drawn during the period from 01.10.2004 to August, 2 009. 16. ever, any order as to costs. The writ petition is allowed to the extent indicated above, without, how