IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.255 of 2006 JANARDAN PANDEY son of late Raghunath Pandey, resident of village and P.O. Mahuawa, P.S.Chiraiya, Distt- East Champaran.- - Petitioner. Versus 1. THE STATE OF BIHAR 2. Secretary, Human Resources Development Department, Govt. of Bihar, Patna, 3. The District Superintendent of Education, East Champaran, Motihari 4. Range Education Officer, Chakiya, Motihari 5. Director, Provident Fund, Govt. of Bihar, Patna 6. District Provident Fund Officer, East Champaran, Motihari 7. Accountant General of Bihar, Patna.- Respondents. ----- For the petitioner : Mr. Prashant Pratap For the State : None. ---- 4. 8.1.2010. Heard Mr. Prashant Pratap, learned counsel appearing for the petitioner. None appears for the State. The petitioner had filed this writ petition for payment of his retiral benefits having retired from the services of the respondents from the post of Headmaster of Govt. Middle School, Ghanshyam Pakri, Circle Chakiya, East Champaran w.e.f.31.7.2005. It is the case of the petitioner that his service was unblemished and that in his entire carreer neither he received any complaint nor any 2 proceedings had ever been drawn against him. It is submitted that it is only after his superannuation on 31.7.2005 when his pension papers were forwarded for payment of his retiral benefits that the impugned order bearing memo no.2161 dated 18.10.2005 as contained in Annexure- 4 came to be issued whereby the District Superintendent of Education, East Champaran (respondent no.3) informed the Range Education Officer, Chakiya (respondent no.4) that a perusal of the service book of the petitioner shows that recovery is to be carried out in the back drop of the issues mentioned in the letter, namely; (1) the petitioner had obtained time bound promotion which was not permissible and warranted recovery, (2) the petitioner had obtained increments which was not correct and warranted recovery, (3) the petitioner was appointed at the age of 15 years 8 months and 3 days and thus treating his age on the date of appointment i.e. 17.1.1961 as 18 years, he should have retired w.e.f. 31.3.2003 but he continued until 31.7.2005, which was 3 not correct and warranted recovery, (4) the certificate provided by the petitioner as regarding the passing of Hindi Noting and Drafting Examination appeared suspicious. A counter affidavit had been filed on behalf of respondent no.3 and in which it has been mentioned that during the pendency of the proceedings, the amount of G.P.F, Group Insurance, unutilized earned leave amount for 210 days and 90% of his pension amount have been paid to the petitioner. It is also mentioned therein that only 10% of his pension amount out of Rs.7875/ per month is not being paid to him by reason of the objection raised by the respondent no.3 as contained in Annexure-4. It is thus stated that it was in the aforementioned back ground that the amounts in question had been withheld. Learned counsel for the petitioner submits that there was no fraud or misrepresentation on the part of the petitioner who had produced all the papers at the time of his appointment and it is only after careful perusal of the documents that the appointment of the petitioner had been made to the post of Primary Teacher vide memo 4 dated 10.3.1961 as contained in Annexure-3 to the writ petition. He submits that, no doubt, the petitioner has served since after his appointment on 10.3.1961 until 31.7.2005 on the basis of his actual date of birth but the same was never suppressed by him rather it was within the knowledge of the respondents who had issued the appointment letter and allowed him to work. It is submitted that he retired without any complaint or any departmental proceeding being drawn against him and thus the action of the authorities in these circumstances was without sanction of law. In so far as the issue relating to age of superannuation is concerned, the respondents have placed reliance on an order dated 20.4.2000 of a Division bench of this Court rendered in L.P.A.No.1483 of 1999 (Jalsa @ Jalsa Devi Vs. The State of Bihar & ors). In a similar situation the petitioner of that case had entered service at the age of 13 years and continued thereafter. The Division Bench taking note of the circumstances has held that the age of the petitioner would be treated to be 18 years on the date of entry in service and on that basis, her retirement age would be calculated. 5 It is submitted on behalf of the State that following the decision of this Court referred to above, the date of retirement of this petitioner was also redetermined treating him to be of 18 years on the date of his appointment on 17.3.1961. It is submitted that proceeding on that basis the petitioner would superannuate on 31.3.2003, as rightly mentioned in the order dated 18.10.2005 (Annexure-4). It is an admitted position that the petitioner has continued in service on the basis of his actual date of birth until his superannuation on 31.7.2005 and has drawn his salary for the said period without any objection being raised by the respondents. Considering the ratio laid down in the case of Jalsa alias Jalsa Devi (supra), I deem it appropriate to hold that though the pensionary entitlement of the petitioner would be calculated on the basis of the salary drawn by him as on 31.3.2003, being the date of retirement determined under Annexure-4 but the same would be payable w.e.f. 31.7.2005, i.e. the date on which the petitioner actually superannuated from service. As the petitioner has drawn salary for the 6 period 1.4.2003 to 31.7.2005 for discharge of duty and service rendered, hence no recovery of the salary drawn by the petitioner during the said period can be permitted in absence of any charge of suppression, interpolation, misrepresentation or the like. It would be rather unjust and inequitable to permit the respondents to do so at such belated stage. In so far as the question of increments, payment of time bound promotion and production of certificate of passing of the Hindi Noting and Drafting Examination are concerned, the same being raised after the retirement of the petitioner and being relatable to a period ranging almost two decades prior to his retirement, the respondents cannot be permitted to indulge in any such fishing inquiry. It is also not the case of the respondents that the promotion and increments had been obtained by the petitioner by practising any fraud or misrepresentation nor do they appear to be convinced that the certificate produced by the petitioner was undoubtedly a forged certificate. In fact, they only say that the certificate produced by the petitioner looked suspicious. It 7 is a settled proposition of law that suspicion can not form a basis for any punitive action. Taking into consideration the rival contentions of the parties and upon consideration of the materials on record, I deem it fit to hold that the impugned act of withholding of the pension and gratuity amount of the petitioner in the light of the circumstance set out in Annexure- 4, besides being arbitrary, also does not have any lawful support and is set aside. The respondents are directed to pay the balance arrears of pension together with the amount of gratuity to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The writ petition is disposed of with the direction aforesaid. ahk (Jyoti Saran,J.)