IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3709 of 2007 BANSHI RAM Versus THE STATE OF BIHAR & ORS ----------- 10. 10.2.2010. Heard Mr. Manoj Kumar Singh learned counsel for the petitioner and Mr. Vinay Kirti Singh learned counsel representing the Patna Municipal Corporation and its functionaries. With the consent of the parties the matter has been taken up for disposal at the stage of admission itself. The petitioner has filed the writ petition for payment of his post retiral dues having retired from the services of the Corporation vide order dated 15.9.2006 (Annexure-7). Brief facts of the case are that the petitioner was appointed on the post of Safai Mazdoor vide order dated 15.8.1976 placed at Annexure-1 to the writ petition. The name of the petitioner appears at serial no.10 of Annexure-1 and his age was estimated as 29 years as on 1.7.1975. In terms of the said date of birth, the petitioner ought to have retired from service with effect from 30.6.2004 upon attaining the age of 58 years. It appears that 2 the petitioner continued to work even thereafter and which came to the knowledge of the respondents only in the year 2006 when the order of retirement dated 15.9.2006 (Annexure-7) was passed retiring the petitioner with immediate effect. The retirement order was followed by another order dated 10.11.2007 (Annexure-8) whereby the Executive Officer, while calculating the post retiral benefits as found admissible to the writ petitioner against the heads of Gratuity, Unutilised leave, arrears of salary and provident fund, was pleased to order for recovery of the amount of salary drawn by this petitioner with effect from 1.7.2004 until 15.9.2006 to the tune of Rs.1,25,211/- from the said dues. Despite the adjustment, still an outstanding of Rs.72,826/- was found recoverable from the petitioner and which was directed to be recovered from the pension and other dues payable to the petitioner. The order of recovery has been challenged by the petitioner by filing a supplementary affidavit. The counter affidavit filed on behalf of the Corporation and its authorities is on record 3 and in which it is stated that in terms of the date of birth entered in the service book of the petitioner, he was found to be of 29 years of age as on 1.7.1975 and the same was also entered in the order of appointment. It is stated that proceeding on the basis of the age of the petitioner as 29 years on 1.7.1975 his date of birth was determined as 1.7.1946 and accordingly the petitioner had to superannuate upon completing 58 years which was attained by him on 30.6.2004. It is stated that it was in this back ground that the order of retirement dated 15.9.2006 has been passed. It is further stated that the petitioner was not entitled for age enhancement of 60 years for the reason that the said decision was taken only on 24.3.2005 under the circular of the State Government and as the petitioner stood retired on attaining 58 years prior to the said date i.e. on 30.6.2004, hence, he was not entitled to the benefits of continuance up to the age of 60 years. It is thus contended that the petitioner was liable for recovery of the excess salary drawn by him for the period 1.7.2004 to 19.9.2006. An interlocutory application has been 4 filed on behalf of the petitioner seeking permission of the Court to challenge the legality of the order of recovery placed at Annexure-9 of the proceedings. The interlocutory application is allowed and the petitioner is permitted to challenge the order of recovery in the present proceedings. Learned counsel for the petitioner further submits that though the recovery of salary is being sought for the period 1.7.2004 to 19.9.2006 but in fact the petitioner has drawn his salary only up to April, 2006 and has not been paid salary for the month of May, 2006 until September, 2006. In that view of the matter, it is stated that the said amount being deducted from the pensionary entitlement of the petitioner is not correct and is without application of mind. The only issue which remains to be determined in this case is as to whether the recovery effected by the respondents in the light of the order of retirement dated 15.9.2006 (Annexure-7) is justified and has any lawful support. Taking into consideration the rival 5 contentions of the parties and considering the material on record, it is manifest that there is no averment in the counter affidavit that there was any interpolation in the date of birth of the petitioner either in the service book or in any other record. The fact remains that the petitioner was allowed to continue on his post until 15.9.2006 and it was only when the same came to the knowledge of the authorities, that the order of retirement was passed. The counter affidavit is also absolutely silent on the issue as to whether the continuance of the petitioner in service was either by way of representation, fraud or misrepresentation. In fact, the counter affidavit simply contends that since the petitioner has continued in service even after his date of superannuation, hence the recovery of the excess salary drawn by the petitioner, is justified. The issue stands concluded by a Division Bench judgment of this Court reported in 2003 (1) PLJR-9. In similar circumstances, the petitioner of the said case was allowed to continue much after his retirement and when it came to the knowledge of the employer that the 6 petitioner had continued in service after the date of his superannuation, then the order of recovery was passed. The Division Bench of this Court finding no case of misrepresentation or fraud on the part of the petitioner held the recovery unjustified. The case of the present petitioner is even on a better footing. It is not the case of the respondents that the petitioner was in any way instrumental in continuing in service or had committed any representation, or misrepresentation for continuing in service. It is by some reason, not been explained in the counter affidavit that the petitioner has continued in service, discharged duties and has drawn the salary therefore. As the admitted position is that the petitioner has drawn his salary for the work discharged by him, hence, it would be highly unreasonable, unjust and inequitable to permit recovery of the salary paid for the service rendered by this petitioner and for that reason, the order of recovery as contained in Annexure-9 is set aside. In fact the respondents themselves appreciating this position have issued the order of retirement 7 dated 15.9.2006 (Annexure-7), with prospective effect. The respondents are thus directed to refund the amount of Rs.1,25,111/- recovered from the post retiral dues admissible to the petitioner within a period of three months from the date of receipt/production of a copy of this order. The respondents would recalculate the pensionary entitlement of the petitioner on the basis of actual date of his retirement, i.e 30.6.2004 but the payment would commence with effect from the date on which he was superannuated, i.e on 15.9.2006. The writ petition is disposed of with the direction aforesaid. ahk (Jyoti Saran,J.)