WP(C) 244/2006 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGMENT AND ORDER (ORAL) 1. Heard Mr. P. Upadhyay, learned counsel for the petitioner as well as Ms. R. Chakraborty, learned State Counsel, representing the respondents. 2. The prayer made in the writ petition is for a direction to the responden ts not to recover the salary, the petitioner had drawn for the period from 1.2.1 995 to 31.1.1997 and to finalize the pension case of the petitioner on the basis of the Office Memorandum dated 22.5.2000 (Annexure-2). 3. The petitioner was working as Lower Division Assistant (LDA) in the offi ce of Saikhuwaghat Gaon Panchayat in the district of Tinsukia, Assam. He continu ed in his service upto 31.1.1997. He was intimated the date of retirement as 31. 1.1997 on attaining the age of superannuation. Such intimation was furnished to him by letter dated 3.1.1997 issued by the Secretary, Sadiya Mahkuma Parishad. 4. It appears that after 6 years of such retirement of the petitioner, the matter relating to his date of birth was scrutinized by the departmental authori ty and it was found that in fact taking into account recorded date of birth of t he petitioner in the service, which is 21.1.1937, the petitioner ought to have r etired from service on completion of 58 years of age in 1995 (31.1.1995). Howeve r, the petitioner continued beyond 31.1.1995 upto 31.1.1997. Thus he over stayed in service for a period of 2 years. 5. It is on the basis of the aforesaid anomaly, the petitioner’s pension ha s been held up and has not been finalized. It is the case of the petitioner that in terms of the policy decision of the Government as reflected in Annexure-2 an d 3 memorandum and letter dated 22.5.2000 and 18.6.2001 respectively, the petiti oner is entitled to receive pension. Be it stated here that the services of the Panchayat employees were not provincialised service. However, later on their ser vices were provincialised. 6. According to the petition he was not aware of recorded date of birth in the service book as 21.1.1937. It is the further case of the petitioner that his date of birth is 31.1.1939. Once the date of birth of the petitioner was recode d as 21.1.1937 in the service book, there is no question of alteration of the sa me to 31.1.1939 after 6 years of retirement of the petitioner. His date of retir ement has been assessed as 31.1.1995 taking his date of birth as 21.1.1937, whic h has been recorded in the service book. However, the petitioner continued in hi s service beyond the date of retirement upto 31.1.1997. 7. The respondents have not filed any counter affidavit attributing fault o n the part of the petitioner towards continuation in service beyond actual date of retirement. Since the petitioner continued in service upto 31.1.1997 and rece ived salary for the period from 1.2.1995 to 31.1.1997, there is no question of r ecovering the same from the petitioner that too at this stage i.e. after 11 year s of retirement from service. However, his date of retirement shall be calculate d on the basis of the date of birth, which is 21.1.1937. On that basis his date of retirement was 31.1.1995, but he continued upto 31.1.1997. 8. The respondents shall now consider the case of the petitioner taking his date of retirement as 1995 and not 1997. If under the policy decision of the Go vernment, the petitioner is entitled to pension any benefits, same shall be paid to him taking his year of retirement as 1995. However, there shall no recovery from the extended period of service i.e. from 1995 to 1997. The respondents shal l act in the matter as expeditiously as possible preferably within 6 months from today, since the petitioner has retired from service way back in 1997. 8. With the above direction, writ petition is disposed of. There shall be n o order as to costs.