Om Parkash vs State of H.P. and Others

Kurian Joseph, C.J.—Annexure A-6 is under challenge. As per Annexure A-6, the salary already paid to the Petitioner for the period from 1.6.2002 to 31.10.2004 is sought to be recovered. According to the Petitioner, there is no dispute that during the said period, he has actually worked as Jail Warden. The dispute is with regard to the date of birth of the Petitioner. According to the Department, the Petitioner should have been superannuated on 31.5.2002. But, the fact remains that the Petitioner continued as such and retired only on 31.10.2004. Even if it is to be held that the Petitioner was entitled to continue in service only upto 31.5.2002, the fact remains that he continued in actual service upto 31.10.2004. There is no justification either legal or moral in recovering the salary for the period during which the Respondents have actually benefited from the service of the Petitioner. An identical case has been considered by the Supreme Court titled as COAL INDIA LTD. and Anr. v. ARDHENDU BIKAS BHATTACHARJEE AND ORS., wherein it has been held at para 9, as follows:

It is, however, stated that during this period the Respondent has worked as an employee of the Appellant Company and has superannuated from service on attaining the requisite age on the basis of the duplicate matriculation certificate. He has been paid his salary and allowances in accordance with the Rules. It would be harsh to direct the Respondent to refund the pay and allowances paid to him during this period, particularly when he has actually worked pursuant to orders of the Court. However, we direct that for service benefits including post-retirement benefits, the service rendered by the Respondent shall be reckoned on the basis of the certificate originally submitted by him disclosing his date of birth as 31-12-1938. His date of retirement shall be determined on the basis of the aforesaid date of birth. For the additional service rendered by the Respondent, after such retirement, apart from pay and allowances already paid to him, no other service benefit shall be given to him.

Therefore, the writ petition is disposed of as follows:

The Petitioner shall be deemed to have superannuated from service on 31.5.2002 for all intents and purposes. However, the actual salary paid to the Petitioner during the period from 1.6.2002 to 31.10.2004 (the period when infact the benefit of service of the Petitioner was enjoyed by the Respondents) shall not be recovered.