HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION No.25485 of 2008 DATED: 17-03-2010 BETWEEN: R.Shankaraiah …Petitioner AND The District & Sessions Judge, Karimnagar District, Karimnagar & Another. …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY WRIT PETITION No.25485 of 2008 ORDER: By means of filing this writ petition under Article 226 of Constitution of India, petitioner question the proceedings of the District Judge, Karimnagar District-first respondent herein, dated 16.9.2008 retiring him from service on attaining the age of superannuation with retrospective effect from 31.3.2007 and the consequential proceedings of Junior Civil Judge, Manthani-second respondent herein, dated 25.9.2008 whereby the pay and other allowances drawn by him for the period from 1.4.2007 to 31.8.2008 amounting to Rs.2,18,041/- was ordered to be deposited in lumpsum within seven days. Initially, the petitioner was appointed as an Attender on 22.11.1978 and was posted in the Court of Junior Civil Judge, Manthani. Subsequently, he was appointed by transfer of service and posted as Field Assistant on 4.7.2000, which comes under the service of Ministerial Staff. While working as such, he was issued with a memo, dated 11.9.2008 calling upon to submit his explanation as to why disciplinary action should not be taken against him for not submitting his pension papers and also for not informing the presiding officer under whom he was working about his retirement. To the said memo, the petitioner submitted an explanation on 12.9.2008 inter alia stating that he had no knowledge of difference of superranuation between Class-IV employees and Ministerial Staff, and that he was not aware of the fact that the Field Assistant post comes under Ministerial Staff. Considering the said explanation, the first respondent vide proceedings, dated 16.9.2008 ordered for retirement of the petitioner from service on completion of 58 years of age with retrospective effect from 9.3.2007 as his date of birth recorded is 10.3.1949 with a direction to the second respondent to recover the amounts which were drawn and paid to the petitioner from 1.4.2007 till his retirement in lumpsum. Pursuant to the said order, the impugned notice has been issued by the second respondent. First respondent filed a counter affidavit stating that the petitioner’s date of birth is 10.3.1949, but he continued in service beyond the age of superannuation. On noticing the said fact, a memo was issued calling upon the explanation of the petitioner and after considering the explanation, he was retired from service with retrospective effect vide proceedings, dated 16.9.2008 with a direction to the second respondent to recover the salary drawn by him as he was not entitled to continue in service beyond 31.3.2007. Petitioner, who was initially appointed as an Attender was promoted as Field Assistant, which comes under Ministerial Service and he worked as such for eight years. The age of retirement for the post of Field Assistant is 58 years. It is stated that the age of petitioner came to light only when the letter, dated 8.9.2008 was addressed by the second respondent. Immediately, the petitioner was issued with a notice, dated 11.9.2008 requiring him to submit his explanation, and on receipt of the same, he was communicated with the proceedings, dated 16.9.2008 retiring him from service with retrospective effect. However, nowhere it is alleged that the petitioner himself mis-represented or he is responsible for his continuation in service beyond the age of superannuation, except stating that by taking advantage of alteration of date of birth in the service register, the petitioner tried to play fraud by making averments that he is innocent and that he is under impression that he would be retired from service on attaining the age of superannuation of 60 years. It is alleged that the petitioner is wholly responsible for being continued in service beyond the age of superannuation and sought to justify the impugned recovery. We have heard the learned counsel for the petitioner and also Sri G.Vidyasagar, learned standing counsel for the respondents. We have also gone through the material available on record. It is not disputed that by the official memorandum, dated 11.9.2008 issued by the first respondent, petitioner was informed that his date of birth is 10.3.1949 as per the certificate submitted by him, and that he was to retire at the end of March, 2007 after attaining the age of superannuation of 58 years, instead he was continuing in service. Therefore, he was directed to submit explanation within 3 days as to why disciplinary action should not be taken against him for not submitting his pension papers and informing the same to his officer under whom he was working, and that he was also called upon to explain as to why he should not be directed to be retired with immediate effect. However, in the said memo, it is nowhere stated that the petitioner altered his date of birth to benefit himself and thereby continued in service. Therefore, in the absence of any such allegation, petitioner cannot be held responsible for his continuing in service beyond the period of superannuation because it is the responsibility of administration to notify in advance three months about the employee who is likely to be retired after verification of the incumbent service register. Further, in the final orders, dated 16.9.2008, the first respondent noticed that in Annexure-III essential particulars of petitioner have been furnished wherein his date of birth was shown as 10.3.1949 which is tagged to the service register of the petitioner. In the absence of any proof or allegation that the petitioner himself manipulated his date of birth i.e. 10.3.1949 by interpolating it as ‘1959’ at a later stage or he played any fraud with a mala fide intention to continue in service beyond the date of his retirement, he cannot be blamed for the lapses on the part of administration, and that as he continued in service as Field Assistant and received the salary, that part of the amount cannot be recovered. Accordingly, the impugned notice is set aside. However, we make it clear that the period for which the petitioner continued in service beyond the age of superannuation cannot be reckoned for fixation of retirement benefits. The writ petition is allowed accordingly. No costs. ________________ A. GOPAL REDDY, J. __________________ MARCH 17, 2010 G.V. SEETHAPATHY, J. Tsr.