IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7326 of 2005 DAMODAR NARAYAN SINGH SON OF LATE JANARDAN PRASAD NARAYAN SINGH, RESIDENT OF VILLAGE RAMGARH, P.S. NARHAN IN THE DISTRICT OF SAMASTIPUR . Versus 1. THE STATE OF BIHAR 2. THE SECRETARY, HIGHER EDUCATION, GOVERNMENT OF BIHAR, PATNA. 3. JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, DEPARTMENT OF HIGHER EDUCATION, PATNA. 4. THE DIRECTOR HIGHER EDUCATION, GOVT. OF BIHAR, PATNA. 5. THE LALIT NARAYAN MISHRA UNIVERSITY, DARBHANGA THROUGH ITS REGISTRAR, KAMESHWAR NAGAR, DARBHANGA. 6. THE VICE CHANCELLOR, L.N.M. UNIVERSITY, KAMESHWAR NAGAR, DARBHANGA. 7. THE REGISTRAR, L.N.M. UNIVERSITY, KAMESHWAR NAGAR, DARBHANGA. 8. THE PRINCIPAL, D.B.K.N. COLLEGE, NARHAN, SAMASTIPUR. ----------- For petitioner: Mr. Ganesh Prasad Singh, Senior Advocate. For L.N.M.U. ( Respondent 5 to 8 ) : Mr. Pushkar Narain Shahi, Adv. For the State : Mr. Shankar Kumar, AC to AAG V. ----------- 7/ 15.02.2010 Heard Mr. Ganesh Pd. Singh, learned Senior counsel appearing on behalf of the petitioner, Mr. Pushkar Nr. Shahi, learned counsel representing for the Lalit Narayan Mithila University, Darbhanga ( hereinafter referred to as “the University”) and Mr. Shankar Kumar, A.C. to AAG V, for the State. The petitioner was appointed as Librarian in D.B.K.N. College, Narhan, Samastipur (hereinafter referred to as “the College”, - 2 - while it was running under a Managing Committee, on 11.11.1975. It is stated that on 07.03.1976 the post of librarian was sent for sanction to the State Government in its department of Higher Education. The Bihar State Universities Act, 1976 ( in short “the Act” ) came in effect from 16.05.1977. The post of librarian was sanctioned by the State Government w.e.f. 10.10.1980. The date of birth of the petitioner being 26.07.1943 he would have completed 60 years on 31.07.2003. It is before the petitioner attained the age of 60 years that the Principal, respondent no.8, vide letter dated 24.05.2003 ( Annexure-1) sought guidelines from the Registrar of the University as regarding the date on which the petitioner and one other employee would superannuate. The details of the date of appointment and the date on which the post was sanctioned by the State Government, were mentioned in the letter and a query was made as to whether the petitioner would superannuate on completing the age of 60 years or 62 years. As no response was received hence, the guidelines sought by Annexure-1 was reiterated again on 22.07.2003 by the Principal (Annexure-2). Upon the request (s) made by the Principal, the Registrar of the University by letter dated 11.12.2003 (Annexure-3) deputed one Ram Shankar Mishra, Senior Assistant ( Audit) to submit his report on the query made by the Principal regarding the age of superannuation of the petitioner and one other. It was clearly stated in the said letter as contained in Annexure-3, that the Principal should make available the documents to the said Mr. Mishra to enable him to submit his report for facilitating the date of retirement of the persons. It is thereafter that a final decision was taken on 13.09.2004 ( - 3 - Annexure-4) when the Registrar of the University communicated that the petitioner and the other person would be retiring on completing the age of 60 years in the light of the provision of Scheme 67(a) of the Act. It was directed that the petitioner would be treated to have superannuated on 31.07.2003, i.e., on completion of age of 60 years. The petitioner, in the meanwhile, continued in service until the issuance of the said order. Following the order, contained in Annexure-4, the petitioner was made to finally superannuate on 30.09.2004 and whereafter he submitted his pension paper. It is at this stage that a decision was taken on 19.04.2005 (Annexure-9) by the University to recover the salary drawn by the petitioner for discharge of his duties against the post of librarian w.e.f. 01.08.2003 until the date the decision was taken to retire them, i.e., 30.09.2004. Learned counsel for the petitioner submits that following the order, as contained in Annexure-9, the University by treating the continuance of the petitioner in the university service for the period 01.08.2003 until 20.09.2004 as illegal, has effected recovery of the salary drawn by him during the said period to the tune of Rs.1,68,121/-. Learned counsel for the petitioner submits that as the continuation of the petitioner in University service was neither a case of fraud or misrepresentation, the recovery effected by the University besides being an act of arbitrariness is also not permissible on equitable grounds. Learned counsel submits that whether or not the petitioner and other person should continue until the age of 62 years or should retire on attaining 60 years was itself under cloud and under the consideration - 4 - of the University and who on their own volition had also deputed a person to submit a report as to entitlement of the petitioner to continue until the age of 62 years. Learned counsel submits that without going into the larger issue testing the entitlement of the petitioner under the provision of Rule 67(a) of the Act, the issue can be decided on a short question, i.e. that the University and its authorities having themselves allowed the petitioner to continue and work on the post of librarian w.e.f. 01.08.2003 until 20th September, 2004 they cannot be allowed to turn back and deny the salary earned by the petitioner for having worked during the said period. He submits that the order, as contained in Annexure-9, is patently illegal, arbitrary and colourable exercise of power by respondent Registrar and that the petitioner would be entitled to the salary for the period he has worked in the university since after 01.08.2003 until he was made to finally superannuate vide order dated 30.09.2004 . Learned counsel for the University opposes the prayer made by the petitioner and submits that the provision of section 67 of the Act was well within the knowledge of the petitioner and he was fully aware that until he came within the purview of the proviso to section 67(a) of the Act, he was not entitled to continue in service after 60 years. Learned counsel submits that the petitioner on his own should have retired on completion of age of 60 years and having continued illegally thereafter, he is liable to refund the salary illegally drawn by him since after 01.08.2003. Learned counsel submits that although the petitioner no doubt continued until September, 2004 but he was paid - 5 - salary only upto June, 2004 and was not paid for the period thereafter and thus it is only the salary drawn by the petitioner w.e.f. 01.08.2003 until June, 2004 that the University has recovered from the petitioner. Mr. Shahi submits that the University, taking lenient view of the matter, has sanctioned the pension to the petitioner w.e.f. 01.08.2003 and he is also drawing pension w.e.f. 01.08.2003 and thus the petitioner is not at any loss. The only issue which falls for consideration is whether the action of the University in forcing recovery of the salary drawn by the petitioner for the period 01.08.2003 until he finally superannuated under the order dated 30.09.2004 (Annexure-4) is justified and/or has any lawful support. Without going into the larger issue as to whether the petitioner was covered under the provision of section 67 of the Act or not, the issue can be decided on the short point that the continuance of the petitioner for the period since after 01.08.2003 until his superannuation under the order dated 30.09.2004 ( Annexure-4) was entirely by reason of the decision taking process adopted by the University for arriving at a just conclusion on the issue of the date of retirement of the petitioner. There is nothing on record of the proceeding to show that there was any representation made on behalf of the petitioner seeking continuance on the post after attaining the age of 60 years. On the contrary the letter dated 24.05.2003 ( Annexure-1) which is the letter of the Principal shows that the University themselves were under a cloud regarding the actual date of retirement. The issue was raised on 24.05.2003 when the guidelines were sought by the - 6 - Principal and which was much prior to the date of retirement of the petitioner on completion of 60 years which was in July, 2003. Coupled with the aforesaid fact, that the University itself had deputed a person to give his report on this issue vindicates the stand of the petitioner that his continuance was not on his own volition, rather was due to the process adopted by the University to come to a conclusion regarding the date of age of actual retirement. No doubt the University did take final decision under order dated 30.09.2004 ( Annexure-4) which is the letter of the Registrar of the University directing the Principal to treat his retirement on 31.07.2003 on completion of 60 years but that was much later and did not empower the Respondents to effect recovery of the salary drawn. Learned counsel for the University further had submitted that the petitioner having neither challenged the date of his appointment as 10.10.1980 being the date on which the post of Librarian was sanctioned by the State Government nor having questioned the proviso to section 67(a) of the act, he is not entitled to seek the benefit of continuance in service until the age of 62 years. Having regard to the rival submission of the respective counsel in the backdrop of the accompanying circumstances, the petitioner would be fully entitled for salary for the entire period from 01.08.2003 until the date he finally superannuated, i.e., 30th September, 2004. The decision of the University to retire him w.e.f. 01.08.2003 in the light of the statutory provision cannot disentitle him to the payment of salary for the period he has worked in the University. Moreso for the - 7 - fact it was the University authorities who had engaged themselves in the decision making process to determine the retirement age of the petitioner in the light of statutory provisions and which continued until 30.09.2004, when the order retiring the petitioner was passed albeit retrospectively. That such orders can operate only prospectively stands settled by the Supreme Court judgment rendered in the case of R. Jeewaratnam Vs. State of Madras reported in AIR 1966 SC 951. As it is undisputed that the petitioner is drawing pension w.e.f. 01.08.2003, hence the University while continuing to do so, would recalculate the salary admissible to the petitioner for the period 01.08.2003 to 30.09.2004 and after adjusting the pension received by the petitioner for the said period, make payment of the balance amount within three months of receipt/ production of a copy of this order. The writ petition is allowed with directions aforesaid. (Jyoti Saran, J ) BTiwary/