Baharul Islam vs State Of Assam And 7 Ors

Arun Dev Choudhury, J

We have heard Mr. A.M Barbhuiya, learned counsel for the appellant; also heard Mr. N.J. Khataniar, learned standing counsel, Elementary Education Department, Mr. P Nayak, learned standing counsel, Finance Department and Mrs. R.B. Boro, learned counsel for respondent No.4, Director of Pension.

By the impugned judgment and order dated 02.09.2025, passed in WP(C)/7551/2023, the challenge made by the appellant to an order dated 11.08.2023 passed by the Director of Pension, Assam, declining to grant the petitioner arrears of pension with effect from 01.02.2018 to 30.06.2021, was negated.

The facts in a nutshell are that the appellant, while serving as a Head Teacher of Mohbiyeni L.P. School, Nalbari, was issued a superannuation notice contending that the appellant was to be superannuated from service on 31.01.2018 on attainment of the age of 60 years as per his date of birth recorded in the service book. Accordingly, he was asked to retire and hand over the charge of the school to the senior-most Assistant Teacher by an order dated 10.08.2021 with effect from 30.06.2021.

The appellant did not dispute his date of birth; however, it is his case that the respondent employer did not record his date of birth earlier, even after his persuasion.

On his superannuation, the respondent authorities sought to recover the salary paid to the appellant for the period of overstay in service with effect from 31.01.2018 till 30.06.2021.

Such a decision of recovery was assailed by the appellant in WP(C) 1873/2022, which was allowed by the learned Single Judge, interfering with such recovery with a further direction to immediately process the regular pension of the appellant so that the appellant could receive his arrears of pension as well as other pensionary benefits at the earliest.

In compliance with the aforementioned judgment of the learned Single Judge, the respondent authorities, while not recovering the excess payment made to the appellant against his monthly salary for the period from 31.01.2018 to 30.06.2021, determined the monthly pension based on his date of superannuation as 31.01.2018. The arrears of pension, with effect from 30.06.2021, until the payment of regular pension, were also made; however, the appellant raised a further claim that he is also entitled to arrears of pension in terms of the order of the learned Single Judge dated 25.04.2023, from 31.01.2018 to 30.06.2021.

When such a claim was denied, the appellant approached this court for the second time by filing WP(C) 7551/2023. The respondents in their affidavit took a stand that since the appellant had already drawn the salary with all cumulative increments for the period he overstayed, he would not be entitled to double benefits. It was their further stand that the appellant’s pension, though it was determined based on his salary on the date of retirement, as per his date of birth recorded in the service book, i.e., on 31.01.2018, but the regular pension was paid with effect from 30.06.2021, when he actually superannuated.

The learned Single Judge in the impugned judgment concluded that the respondent's stance is logical, as the appellant is not entitled to salary and pensionary benefits concurrently. If the petitioner is paid a salary up to 30.06.2021, the entitlement to pension cannot be extended up to that date.

Mr. A.M. Barbhuiyan, learned counsel, has assailed the judgment contending that the learned Single Judge in WP(C) No.1873/2022, in no unambiguity directed the respondents to pay the appellant his arrears of pension. However, by the impugned judgment while dismissing the writ petition, the learned Judge overlooked the principles of judicial discipline. According to him, it is only for the negligence of his employer in not recording his date of birth in the service book that the appellant continued to serve and therefore, his pensionary benefits with effect from his actual date of superannuation cannot be withheld. It is his case that the salary is paid for the period of overstay for rendering service and such payment cannot be adjusted against his rightful pension.

The undisputed fact remains that the appellant ought to have superannuated from service with effect from 31.01.2018 on attainment of 60 years as per his date of birth. He overstayed due to the non-recording of his date of birth in the service book; however, there is no dispute as regards his date of birth. He was paid salaries with all incremental benefits till 30.06.2021. The monthly pension of the appellant has been determined based on the salary paid to the appellant on his actual date of retirement i.e., 31.01.2018. The drawl against salary from 31.01.2018 to 30.06.2021 was not recovered in terms of the learned Single Judge’s order dated 25.04.2023 passed in WP(C) No.1873/2022. The arrears of pension from 30.06.2021 till the payment of the regular monthly salary were also released.

The direction of the learned Single Judge in WP(C) 7551/2023, directing to pay arrears of pension, in our view, is in the context of the determination made in the said case and is relatable to the arrears of pension with effect from 30.06.2021 till payment of regular monthly pension. There was no determination that the petitioner shall be entitled for both. i.e. Pension and the already paid salary during the period of overstay.

That being the case, we do not find any grounds to disagree with the reasons recorded by the learned Single Judge in the impugned judgment, as recorded hereinabove.

Recovery of salary paid during overstay is generally not permitted for specific categories of employees when such overstay is not attributable to the employee. Such is based on the principles of equity, and to avoid financial hardship that may ensue for these categories of employees. However, law is equally well settled that in such circumstances, a person shall have no rightful claim for payment of salary and pension simultaneously.

Accordingly, for the reasons recorded hereinabove, we do not find any good ground to fault with the judgment impugned. The appeal is thus dismissed. Parties to bear their own cost.