WP(C) 1450/2008 BEFORE HON’BLE THE MR. JUSTICE AMITAVA ROY Being aggrieved by the inexplicable delay on the part of the res pondent authorities in furthering the process for release of his pensionary bene fits, the petitioner who has since been retired from service on 31/12/2006 is be fore this Court seeking redress. I have heard Mr. Dhar Choudhury, Advocate assisted by Mr. S. Hoq ue, Adovcate for the petitioner and Ms. Phukan, learned State Counsel. Briefly put the petitioners’ averred case is that she having bee n appointed as a Stenographer in the Directorate of Panchayat and Rural Developm ent, Assam on 3/12/1969 rendered her services to the best of her abilities witho ut any blemish. Her date of birth was recorded to be 1/1/1948 in her service boo k. While she was continuing in service by order dated 1/10/2007 (Annexure 1 to t he writ petition), she was intimated that her due date of retirement was 31/12/2 006. Thereby she was also superannuated retrospectively w.e.f. from that date. T he petitioner as such has not disputed her date of birth as recorded in the serv ice book but has asserted that it being the singular duty of the authorities con cerned under the law to take necessary preparatory steps to effect the retiremen t of an incumbent in public service, she would by no means be stated to have ove rstayed in a post as sought to be represented by the respondents. According to h er, she had been rendering her services for which due salary and other allowance had been paid to her for the period beyond 31/12/2006. Be that as it may, the petitioner after her retirement submitted her pension pap ers. Her grievance is that she has not been paid any retiral benefits, gratuity, leave salary etc. Being haunted by the apprehension that the respondent authori ties would resort to deduction from her retiral benefits on the purported plea o f overstay in service, the petitioner is before this Court. The respondents in their affidavit affirming the petitioner’s date of birth to b e 1/1/1948 have contended that in view of the office memorandum No. AAP.230/85/5 dated 1/2/1992, the officer concerned scheduled to retire is required to submit his pension papers to his Administrative Department eight months before the act ual date of retirement without waiting for any intimation from it or from the ap pointing authority and under no circumstances the officer shall have the right t o remain in service after date of retirement with the expectation of getting ext ension/re-employment under Rule 95(1) of the Assam Services (Pension) Rules, 196 9 (hereafter referred to as the Rules). The answering respondents have, therefor e, pleaded that the petitioner had been rightly superannuated w.e.f. 31/12/2006, her due date of retirement. They have, however, clarified that her entitlements have not been released in full in view of unanswered queries of the office of t he Accountant General. Mr. Dhar Choudhury has argued with reference to Rule 95 and 184 of the Rules that it being incumbent on the part of the concerned State authorit y to take the essential steps for initiating the process for payment of pension of the retiring public servant, the petitioner can by no means be held to be res ponsible for any failure on her part and therefore the delay in the computation and release of her retiral entitlements is obviously arbitrary unreasonable and unjust. According to the learned Counsel, even assuming that the petitioner had failed to submit her pension papers in time, the same would not absolve the conc erned respondent authorities of their responsibility in law and viewed from that angle as well the impugned action is unsustainable in law. As the tardiness in processing the petitioner’s pension papers for release of her retiral benefit in full is wholly unjustifiable, an appropriate direction ought to be issued to re medy the grievance. Mr. Dhar Choudhury also submitted that in the facts and circ umstances of the case the contemplated action of deduction from the petitioner’s retiral benefits is per se illegal and ought to be adjudged as such. Ms. Phukan in reply has argued that the duty of the respondent a uthorities as indicated notwithstanding, it being apparent that the petitioner h ad consciously omitted to submit her pension papers in time, her overstayal bein g not permissible in law, the impugned action is unassailable. She, however, sub mits on instructions that the petitioner would be released her entitlements as d ue to her in the facts and circumstances of the case. The pleadings of the parties and the rival submissions made have been duly considered. There is no denial of the fact that computed from the pet itioner’s date of birth as recorded in her service, she ought to have retired on 31/12/2006. Admittedly, therefore, she had rendered her services for nine month s beyond that date for which she had been released her pay and allowances. Notic eably the respondents in their affidavit have not attributed any motive or overt act on her part to ensure her stay in service beyond 31/12/2006. True it is tha t in terms of the office memorandum dated 1/2/1992, the public servant concerned is supposed to submit his/her pension papers to his/her administrative departme nt eight months before the actual date of retirement without waiting for intimat ion from it or from the appointing authority. In terms thereof as well as Rule 9 5 of the Rules he/she cannot acquire any right to remain in service even if the process from either of the end have not been initiated. The above notwithstandin g any failure on the part of the public servant as above would logically not abs olve the concerned State authority from its responsibility in law to be vigilant about the ensuing date of his/her retirement. To penalize a public servant for his default to act in terms of the above office memorandum by overlooking the om ission on the part of the concerned State authority would be unfair apart from p lacing a premium on the lack of diligence on the part of the latter to discharge his/her duty as required under the Rules. In the above premise, having regard to the facts and circumstanc es of the case, where the materials on record do not proclaim any role of the pe titioner for securing her overstay in service beyond 31/12/2006 in the opinion o f this Court, the contemplated deduction from her retiral benefits cannot be sus tained in law. At the same time as the petitioner’s due date of retirement is un disputably 31/12/2006, I am not inclined to reckon the nine months extra service for the computation of her retirement benefits. In other words, the petitioner would be construed to have retired from service on 31/12/1996 and her retiral be nefits would be accounted for on the basis thereof. It is, however, made clear t hat in quantifying the same, no deduction therefrom would effected on the ground that she had overstayed in service beyond 31/12/2006. As the petitioner has alr eady retired from service, the respondents would expeditiously complete the proc ess to compute the petitioner’s retiral benefits so much so that she is disburse d the same within a period of three months from the date of receipt of certified copy of the order. The petition stands allowed in the above terms. No costs.