--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. CWP No.1357 of 2009 with CWP No.1746 of 2010. Decided on: December 22, 2011. 1. CWP No.1357 of 2009. Babu Ram s/o late Sh. Laxman Dass, r/o House No.207/13, Balmiki Basti, Nahan, District Sirmaur, H.P. Formerly Driver, Fire Station, Nahan, H.P. …… Petitioner. Versus 1. State of Himachal Pradesh through its Secretary (Home) to the Govt. of H.P., Shimla-2. 2. Director General, Police-cum-Director, Fire Services, HP, Shimla-1. 3. Commandant, Home Guards, 4th Battalion, Nahan, H.P. For the petitioner : Mr. Manohar Lal Sharma, Advocate, For the respondents : Mr. A.K.Bansal, Additional Advocate General. 2. CWP No.1746 of 2010. Babu Ram s/o late Sh. Laxman Dass, r/o House No.207/13, Balmiki Basti, Nahan, District Sirmaur, H.P. Formerly Driver, Fire Station, Nahan, H.P. …… Petitioner. Versus 1. State of Himachal Pradesh through its Secretary (Home) to the Govt. of H.P., Shimla-2. 2. Commandant, Home Guards, 4th Battalion, Nahan, H.P. 3. The Sr. Deputy Accountant General, (A&E), Himachal Pradesh, Shimla-3. …….Respondents. For the petitioner : Mr. Manohar Lal Sharma, Advocate, For the respondents : Mr. A.K.Bansal, Addl. Advocate General for respondents No.1 and 2. None for respondent No.3. - 2 - Civil Writ Petitions under Articles 226 & 227 of the Constitution of India for releasing pensionary benefits alongwith interest. ____________________________________________________________ Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes Surinder Singh, J (oral): This judgment shall dispose of both these petitions filed by the petitioner on the similar facts, claiming the same relief for releasing pension and retiral benefits except an additional relief in CWP No.1746 of 2010 seeking direction for the provisional pension in the respect of the total length of service rendered by him w.e.f. 18.5.1978 till 31.8.2006. 2. Heard and gone through the record. 3. Petitioner joined Indian Army in the year 1968. He was discharged there from in the year 1974 and re-employed on and w.e.f. 18.5.1978 as a Driver in the State Fire Services with respondent No.2. He submitted his school leaving certificate pertaining to the Government Senior Secondary School, Nahan wherein his date of birth was shown as 1.3.1951. Later, he made - 3 - representation that it was wrongly recorded as 1.5.1951 in his service book which requires correction. His request was accepted. It is averred in the petition that throughout his service career as Driver in the respondent-department, his date of birth was reflected as 1.3.1951 in the seniority list issued from time to time. On the basis of the date of birth recorded in the service book of the petitioner, he was to retire on 31.5.2009, but was wrongly retired on 21.8.2006, but this plea was rejected by the Division Bench of the Court in CWP (T) 246/2008 (annexure P8) decided on 11.11.2008. Thus he stood retired from the service on 31.8.2006 on the basis of the entry of the date of birth in the army record. 4. In fact the petitioner had submitted his representation to accord him the benefit of approved Army service and in support thereof, he submitted the letter (Annexure R-2) regarding Army Service, rendered by him wherein his date of birth stood recorded as 27.8.1948 and was discharged from the Army service on 28th March, - 4 - 1974 and took up the civil employment on 18.5.1978 as aforesaid. 5. The respondents alleged that the petitioner deliberately concealed his actual date of birth and the respondent-department was kept in dark. The petitioner duped the government for remaining in government service for more than 16 months illegally, thus, a notice (Annexure P-5) in CWP No.1357 of 2009 was issued for the recovery of the amount paid for the excess period. 6. The Principle Bench in CWP No.1357/2009 (supra) stayed the recovery and when the matter was pending in the Court in another petition (CWP No.1746 of 2010) sought direction for the payment of the provisional pension while claiming pensionary benefits with interest. Vide order dated 26.5.2010, the Court directed the respondents to disburse the undisputed portion of DCRG to the petitioner within a month and also to release the undisputed pensionary benefits which - 5 - according to the learned Addl. Advocate General was complied with. 7. There is nothing on record to show that the petitioner was sponsored by Ex-serviceman Cell or that he was taken against the vacancy for Ex-serviceman. There is also no allegation that the school leaving certificate furnished by the petitioner at the time of his service having different date of birth was fabricated by him and also the petitioner might have expected that the second date of birth shown in the service book on his reappointment on the basis of school leaving certificate was accepted by the authorities for that reason, he was allowed to continue in his service and was paid salary. In fact for this period, he had worked for the department, therefore, not holding a proper inquiry by the respondents and by not issuing the show cause notice, the alleged recovery after his retirement shall not be recovered from him in view of State of Bihar and Others vs. Pandey Jagdishwar Prasad [(2009) 3 SCC 117]. But it is made clear that for fixing the retiral benefits, the - 6 - period of 16 months in respect of such salary received by the petitioner shall also not be taken into consideration and the petitioner is only held entitled to the fixation of retiral benefits on the basis of pay drawn by him on the date of his superannuation i.e. on 31.8.2006 and not 31st December, 2007 and he shall also not be entitled for any interest. The provisional pension, if any paid/released, be adjusted against the retiral benefits calculated upon the salary as on 31.8.2006. 8. Both the petitions are accordingly allowed and disposed of to the above extent, so also the pending application(s), if any. (Surinder Singh ) Judge December 22, 2012. (Pds)