High Court
Case Details
WP(C) 2346/2011 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) Sharma, J
Legal Reasoning
Heard Mr. D. Choudhury, learned counsel for the petitioner. Also heard M s. H.M. Phukan, learned State Counsel, I have also heard Mr. C. Baruah, learned Standing Counsel, Office of the Accountant General, Assam. 2. The petitioner, who has since retired from service w.e.f. 30.9.2010, has filed this writ petition assailing the validity of the Annexure-4 communication dated 8.12.2010 by which the office of the Accountant General has directed the Divisional Forest Officer, Social Forestry Division, Golaghat to recover pay and allowances which have been paid to the petitioner for the period from 1.10.2006 to 30.9.2010. According to the respondents, the petitioner over-stayed in servi ce by withholding / misrepresenting his actual date of birth, which according to the respondents is 29.9.1947, as per the HSLC certificate. However, while there was inadvertent mistake on the part of the Dealing Assistant to record the same as 29.9.1950, at the same time the petitioner also did not point out that there was mistake in recording the said date of birth in the Service Book. 3. The fact of the matter is that in the Service Book, the age of the petit ioner was recorded as 18 years 5 months 02 days as on 1.3.1966 but instead of sh owing the date of birth as 29.9.1947 on that basis it was shown as 29.9.1950. Th us, the petitioner, although, was to retire from service on attaining the age of superannuation on 30.9.2006, continued upto 30.09.2010. In that way, he also go t the benefit of extension of retirement age upto 60 years. 4. Mr. D. Choudhury, learned counsel for the petitioner submits that there was no misrepresentation on the part of the petitioner and there was bonafide mi stake on his part to think that his date of birth is 29.9.1950. On being pointed out that on the basis of the age recorded in the HSLC certificate dated 11.6.19 66, the petitioner’s age was 18 years 5 months and 02 days as on 1.3.1966 and th us his date of birth is 29.9.1947, Mr. Choudhury, learned counsel for the petiti oner submits that as in the case of the respondents and to be more precise, the Dealing Assistant in the particular office, there was also bonafide mistake on t he part of the petitioner to think / calculate his date of birth as 29.9.1950. 5. Countering the above argument, Ms. H.M. Phukan, learned State Counsel an d Mr. C. Baruah, learned Standing Counsel, AG, submits that there being misrepre sentation on the part of the petitioner, he is not entitled to any relief and th at the impugned order has rightly been passed for recovery of the excess drawal of salary by the petitioner. 6. were made :- When the matter was last taken up on 25.10.2011, the following quarries (cid:28)1. Whether during the service period of the petitioner, any Gradation List was published in the grades in which he had worked ? 2. out his date of birth as 29-9-1950 wrongly recorded in the Service Book ? (cid:29) Whether there is any document showing the knowledge of the petitioner ab 7. In response to the said two quarries, the respondent No.2 has filed an a ffidavit stating therein that although the petitioner was appointed as Plantatio n Mali in 1982 in Golaghat Division, he was the most qualified Plantation Mali a t that time, he having passed HSLC examination. The said affidavit further state s that although in the Service Book, the age of the petitioner was recorded as 1 8 years 5 months and 02 days as on 1.3.1966, his date of birth was wrongly shown /calculated as 29.9.1950, which was a mathematical and typographical error on th e part of the concerned Dealing Assistant. 8. The affidavit reveals that the petitioner was promoted to the post of Fo rest Guard and thus he was aware of his actual date of birth i.e. 29.9.1947. As regards the publication of Gradation List, a copy of the same has been annexed t o the said affidavit. It has also been stated that the petitioner in his service career, had scrutinized the service Book on number of occasions. In the Gradati on List, his date of birth was shown as 29.9.1950 instead of 29.9.1947. From the above, what is seen is that while the age of the petitioner as 9. depicted in the HSLC certificate was correctly recorded, based on which his date of birth is 29.9.1947 but the particular Dealing Assistant recorded the same as 29.9.1950. The petitioner being an HSLC passed employee, who was even promoted to the post of Forest Guard, cannot take the plea that there was bonafide mistak e on his part in thinking that his date of birth is 29.9.1950. The HSLC certific ate which he has produced before the appointing authority, having clearly depict ed his age as 18 years 5 months 02 days as on 1.3.1966, it was his duty to point out that his actual date of birth is 29.9.1947 and not 29.9.1950. Even if there was any mistake at the first instance when the petitioner had entered into the service of the Forest Department but when he had verified the service book on a number of occasions, the said mistake ought to have been corrected by himself po inting out the same to the authorities. At the same time, the respondents also c annot absolve from their responsibilities in correctly recording the date of bir th of the petitioner in the service book and / or correcting the same at the ear liest opportunity. Thus, there is a case in which here is contributory negligenc e on both the parties i.e. the petitioner and the respondents.
Decision
10. In view of the above, I am to the considered opinion that the ends of ju stice would be met if the petitioner is saddled with the liability to pay 50% of the pay which he has drawn from 1.10.2006 to 30.9.2010. To that extent, the imp ugned order dated 8.12.2010 (Annexure-4) issued by the Accountant General, stand s modified. However, the pensionary and other retirement benefits payable to the petitioner shall be calculated on the basis of the actual date of birth, taking into account the date of birth as 29.9.1947. 11. The respondents are directed to pay the admissible retirement and other pensionary benefits to the petitioner on the above basis, as expeditiously as po ssible, after making the aforesaid deductions, preferably in suitable installmen ts. 12. sts. The writ petition is partly allowed, without however, any order as to co