IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 9706 of 2008. Decided on: 6.1.2011. ___________________________________________________________ Amar Singh … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. P.P. Chauhan, Advocate. For respondents No. 1 to 3 : Mr. Anil Jaswal, Dy.A.G. For respondent No.4 : Mr. Rajesh Verma, Advocate vice Mr. Rajinder Dogra, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). The petition has been filed on the following prayers vide paras No. 7 (a) to (d):- “7 (a). Quash the impugned order A-3 issued arbitrarily, mala fide and illegally by the respondent. (b). Direct the respondent department to reinstate the applicant and retire on attaining the age of 60 years w.e.f. 31.10.2003 with all consequential benefits and arrears of salary along with interest thereon @ 18% p.a. till the date of realization. (c ). In the alternative direct the respondent department to re-fix the pay and allowances of applicant in the pay scale of Rs. 950-1800 and pay arrears of salary along with interest @ 18% p.a. till the date of actual service of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 applicant upto 28.2.2002 and re-fix the pensionary benefits of the applicant accordingly and pay the same along with interest @ 18% p.a. till the date of realization of the same. (d). Direct the respondents to refund a sum of Rs. 22,000/- recovered illegally and arbitrarily from the gratuity of the applicant and pay interest thereon @ 18% p.a. from the date of amount falling due till the date of realization with all the consequential benefits.” 2. In reply on behalf of respondents No. 1 to 3, the following stand has been taken vide paras 3 and 6 (iv):- “3. That the applicant is not entitled to file and maintain the present original application as the applicant was to retire at the age of 58 years being class-III employee in view of the notification issued by the Govt. vide letter dated EDN-A-Kha-(1)-20/2000 dated 8.2.2001, therefore, the applicant was entitled for the pensionary benefits on the basis of services rendered by him upto the age of 58 years. The applicant remained in service upto 59 years but after the notification received from the Govt. he was not entitled to work after attaining the age of 58 years. Therefore, the recovery from the amount of gratuity has been ordered in accordance with the Notification issued by the Govt. hence the present original application is liable to be dismissed. 6 (iv). That in reply to this para, it is submitted that the applicant should not be allowed to continue after attaining the age of 58 years in view of the notification dated 8.2.2001 but the applicant continued to work upto the age of 59 years. The case of the applicant was 3 scrutinized and it was found that the applicant should have been retir5ed after attaining the age of 58 years. The applicant has been paid salary for one year after the retirement age of 58 years. The amount of salary for the said period has not been recovered, however, the pensionary benefits have been recovered in view of the CCS (CCA) Pension Rules, 1964 which provides that the pension of the class-III employees are calculated upto the age of 58 years. Therefore, the recovery pointed out by the Accountant General of Himachal Pradesh is as per rules.” 3. The following averments have been set up vide para 6 of the reply filed on behalf of respondent No.4:- “6. In reply to this para it is respectfully submitted that pension case of the applicant was forwarded by the respondent-Department vide their letter dated 26.6.2002 (copy enclosed as Annexure R-1). As per above forwarding letter, it was mentioned by the respondent- Department that on the basis of earlier appointment, the applicant was due to retire w.e.f. 31.10.2003 on completion of 60 years age prescribed for Class-IV employees. But as per notification dated 19.1.2002 (Annexure A- 3) issued by respondent No.3 in terms of instructions contained in the respondent No.2 letter dated 2.12.2001 have been received by Principal, Govt. Senior Secondary School, Koti Bounch, Distt. Sirmaur, H.P. in the month of February, 2002, the age of superannuation of the applicant is 58 years. On scrutiny of pension papers it was found that date of 4 retirement of the applicant was mentioned as 28.2.2002 which should have been 31.10.2001 in terms of letter dated 19.1.2002 (Annexure A-3) whereas pensionary benefits were recommended at the pay drawn as on 31.10.2001 being date of retirement on attaining the age of 58 years. Accordingly, pension case of the applicant was processed and had authorized the pensionary benefits vide Certificate and Report dated 4.4.2002 (copy enclosed as Annexure R-2). The pensionary benefits were authorized on the basis of pay drawn as on 31.10.2001, but since the applicant had drawn pay and allowances upto 28.2.2002, the date of commencement of pension was shown as 1.3.2002 instead of 1.11.2001 being actual date of retirement or 31.10.2001. It was mentioned in the Certificate and Report dated 4.4.2002 (Annexure R-2) that date of commencement of pension will be revised on receipt of certificate from the department that all recoveries of pay and allowances for the period 1.11.2001 to 28.2.2002 have been recovered from the D.C.R.G. Requisite certificate is still awaited but it appears that over payment of pay and allowances for the period 1.11.2001 to 28.2.2002 have been recovered from the D.C.R.G. as averred by the applicant in para 3 of the Original Application. Thus, as soon as requisite certificate is received from the respondent-Department, the date of commencement of pension will be changed accordingly. It is pertinent to mention here that the replying respondent is only authorizing agency. Replying respondent had finalized the 5 pension case as per recommendation of the respondent-Department being pension sanctioning authority. Rest of the averments needs no submission.” 4. In view of the above, it is manifest that the petitioner was retired from Government service in terms of the impugned memo dated 19.1.2002, Annexure A-3, on the premises that since he was a non-matriculate Laboratory Attendant, which had been declared as Class-III post, his retirement age was 58 years. However, the fact remains that even as per the petitioner, his date of birth is 5.10.1943 and thus, on the basis of retirement age being 58 years, he has been retired from service on 31.10.2001 from a back date when in fact he had continued in Government service upto 28.2.2002, i.e. beyond the age of 58 years. He had not worked as such on his own, but instead was allowed to continue in service by the respondent-Department. This fact is established on the face of records as the impugned memo, Annexure A-3, was issued by the respondent-Department only on 19.1.2002 i.e. after 5.10.2001 when the petitioner was to retire at the age of 58 years. Thus, no recovery can be effected for the period he has actually worked in the respondent-Department beyond attaining the age of 58 years and rather he would be entitled for all the consequential benefits including pay fixation and pension as Laboratory Attendant also for the period he had worked as such over and above the age of 58 years. In so far as the alternative prayer of the petitioner to allow him to work up to the age of 60 years is concerned, the same cannot be granted simply for the reason that he had attained the age of 60 years as far back as on 31.10.2003. 6 5. In the result, the petition is allowed in the following terms:- (i) No recovery shall be effected from the petitioner for the period 1.11.2001 to 28.2.2002 during which he had actually worked as Laboratory Attendant beyond the age of 58 years i.e. after 31.10.2001 and in case any such recovery has already been made, amount thereof shall be liable to be refunded to the petitioner along with interest at the rate of 9% per annum. (ii). The period of employment beyond the age of 58 years as above shall be liable to be reckoned for the purpose of all the consequential benefits including pay fixation and pension etc. 6. The petition stands disposed of in the above terms, so also pending application(s), if any. (V.K. Sharma) Judge. January 6, 2011. (cr)