Ambikeshwar Yadav vs State of Chhattisgarh and Others

Prashant Kumar Mishra, J.—While working as Head Constable in Bilaspur District, the petitioner was due for retirement on 31.12.2010 on the basis of his date of birth mentioned in the service record as 1.1.1951. However, the petitioner was allowed to continue in service even after the said date of 31.12.2010 by inadvertence or negligence of the concerned establishment clerk of the office of Superintendent of Police, Bilaspur. When the mistake surfaced, the impugned order dated 18.7.2012 was passed and he was immediately retired with effect from 31.12.2010 and at the same time, recovery of amount of salary paid to him after 31.12.2010 has been directed to be made from the petitioner under Rule 65 of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short ''the Rules, 1976''). Learned counsel for the petitioner would submit that his school leaving certificate issued by Rashtriya Higher Secondary School, Jagdalpur, at page-22 of the paper book, is part of the service record wherein his date of birth is mentioned as 1.1.1952, therefore, it is apparent that the petitioner was entitled to continue in service till 31.12.2011. However, when the petitioner was served with the order, in order to avoid controversy, the petitioner proceeded to seek voluntary retirement, which has been accepted by the Superintendent of Police, Bilaspur on 30.9.2011 (Annexure-P/7) and he has been treated to have retired with effect from 30th September, 2011. He would submit that in view of the document (Annexure-P/7), the order of recovery of the amount is illegal and in any case, the petitioner being not at fault at any stage of the service, he cannot be saddled with the order of recovery after his retirement.

On the other hand, learned State counsel would submit that in the entire service book, the petitioner''s date of birth is mentioned as 1.1.1951, which was in the knowledge of the petitioner and yet he continued in service, therefore, it is a case where the petitioner deliberately obtained payment of salary despite being aware of the fact that he is not entitled for the same, therefore, the order of recovery is fully justified. He would also submit that the order (Annexure-P/1) is not an order of recovery in praesenti, but it only directs that recovery of salary paid in excess to the petitioner shall be recovered in accordance with Rule 65 of the Rules, 1976.

In the matter of State of Bihar Vs. Narasimha Sundram, the concerned employee before the Hon''ble Supreme Court was allowed to continue in service beyond the age of retirement, however, the salary for the said extended period was not paid to him by alleging that the employee committed fraud in respect of his age. The High Court directed the State Government to make payment of salary for the said extended period during which the employee remained in service after the age of superannuation because he had worked during the said period and the said order of the High Court has been maintained by the Hon''ble Supreme Court.

In the present case also, no enquiry has been conducted to determine as to whether the petitioner was at fault at any point of time while he continued in service. On the contrary, the respondents have proceeded against 2 employees of the office of Superintendent of Police, Bilaspur because of whose negligence, the petitioner could not be informed about the age of superannuation and was allowed to continue in service.

Considering the entire fact situation of the case and relying on the law laid down by the Hon''ble Supreme Court in the matter of State of Bihar Vs. Narasimha Sundram (Supra), this Court is of the considered opinion that the said part of the order whereby direction for recovery of the amount in accordance with Rule 65 of the Rules, 1976 has been directed against the petitioner is illegal and the same deserves to be quashed. The said part is accordingly quashed. The writ petition is allowed in part. No order as to costs.