In the High Court of Jharkhand at Ranchi
W.P.(S) No.4929 of 2007
Fulmani Devi..............................Petitioner
VERSUS
State of Jharkhand and others.. Respondents
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : M/s. Jitendra Nath and Pradeep Kumar
For the State : Mr.S.B.Gadodia
For the Accountant General: Mr.S.Srivastava
4. 20.11.08
This writ application is directed against the order as
contained in pension payment order issued by the Accountant
General vide memo no.Pen III- 07-08-3980 dated 16.6.2007
(Annexure 1) whereby Rs.3,60,954/- has been shown as
Government dues and has been ordered tobe debited from the
amount of pension. Further order as contained in memo no.4231
dated 19.7.2007 issued by Senior Superintendent of Police, Ranchi
has also been sought tobe quashed whereunder Senior
Superintendent of Police directed the Treasury Officer, Ranchi to
adjust Rs.3,60,954/- from the amount of pension and gratuity of
the petitioner.
It is admitted case of the partes that the petitioner was
appointed against the post of Sweeper in the year 1964 but at the
time of her appointment, her date of birth was not noted in the
service book. However, when in the year 1994-95 the above defect
was detected, the petitioner was sent to Civil Surgeon, Ranchi for
assessment of her age. On examination, age of the petitioner was
ascertained to be 56 years which was communicated by the Civil
Surgeon, vide letter dated 30.11.1995. On the basis of that report,
office order was drawn and the age of the petitioner was entered
into the service book and according to that entry, the petitioner
was supposed to retire on 31.3.1998. However, according to the
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petitioner, the petitioner being illiterate was not aware about the
date of retirement and, hence, she went on putting her services
until 30.11.2004 when she was asked to vacate the post which she
did and during this period, the petitioner did draw the salary. Now
the authority has sought to recover the amount which the
petitioner has drawn for the period from 1.4.1998 to 30.11.2004
which is quite illegal as the petitioner was allowed to continue to
discharge his duties without there being any misrepresentation.
Learned counsel appearing for the petitioner further submits
that under the provision of Police Manual, the authority was
required to intimate about the date of retirement to the petitioner
18 months before but admittedly no such information was given
and the petitioner was allowed to continue to discharge her duties
and in that event, the authority is not entitled to recover the
amount which the petitioner has drawn in view of the ratio laid
down in a case of Narayan Singh vs. State of Bihar and
others [2004(1) JCR 324].
However, stand of the respondent is that on the basis of the
age ascertained by Civil Surgeon, Ranchi, the petitioner was to
retire on 31.3.1998 which the petitioner was fully knowing but the
petitioner continued her services even after attaining the age of
superannuation without there being any order of the controlling
authority though, under order as contained in memo no.3/F –
02/88 (Part I)/1600 V (2) issued by the Finance Department,
Government of Bihar on 1.4.1991, the petitioner was not supposed
to continue after attaining the age of superannuation but the
petitioner continued her services till 30.11.2004 and hence, salary
drawn for aforesaid period is adjustable towards the amount of
pension and gratuity of the petitioner.
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Mr. S. Srivastava, learned counsel appearing for the
Accountant General submits that the petitioner even after attaining
age of superannuation went on discharging her duties without any
order regarding her re-employment and in that event, she had no
right to claim the salary and, therefore, office of Accountant
General issued the order wherein excess amount drawn has been
shown to be debitable from the amount of pension and gratuity of
the petitioner.
Learned counsel further submits that when similar point fell
for consideration before the Hon’ble Supreme Court rendered in a
case of Radha Kishun vs. Union of India and others [(1997)
9 SCC 239] the Apex Court found the order regarding recovery of
the amount quite justifiable and in that view of the matter, this writ
application is fit to be dismissed.
Having heard learned counsel appearing for the parties, it
does appear that when it was found that service book does not
contain the date of birth of the petitioner, the authority sent the
petitioner before the Civil Surgeon, Ranchi for assessment of her
age and on examination, her age was found to be 56 years in the
year 1996 and, accordingly, petitioner was supposed to get retired
on 31.3.1998. but the petitioner went on discharging her duties till
30.11.2004 when she was asked to vacate the post, though,
according to learned counsel appearing for the petitioner, the
authority in terms of the provision of Police Manual, was required
to intimate about the date of retirement 18 months before the
date of superannuation but the said provision of the Police Manual
never gives any right a person to continue service even after
attaining the age of superannuation, if no such communication has
been made by the authority. Admittedly, the petitioner’s age has
been assessed by the Civil Surgeon, Ranchi and in that event, one
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can easily presumed that the petitioner must have knowledge
about the date of superannuation and as such, any plea taken that
the petitioner was not aware of the date of superannuation is not
acceptable. Consequently, the argument advanced on behalf of
the petitioner that the authority is not entitled to recover the
amount which the petitioner has drawn in excess during the period
from 1.4.1998 to 30.11.2004 is also not tenable as the petitioner
had no right to continue in the service and to draw the salary after
attaining the age of superannuation. This proposition has been
categorically laid down by the Hon’ble Supreme Court in a case of
Radha Kishun vs. Union of India and others (supra).
However, learned counsel has placed his reliance in a case of
Narayan Singh vs. State of Bihar and others (supra), but the
ratio laid down in that case is not applicable in the present case as
in that case, certain amount was paid to the petitioner on account
of second time bound promotion and also on the premise that he
had passed Hindi Nothing and Drafting Examination but
subsequently, it was found that the petitioner was not entitled to
second time bound promotion from the date on which it was given
and, therefore, excess amount drawn was sought to be recovered
which order was held to be not tenable by this Court as time bound
promotion and also salary enhancement on account of passing of
Hindi Nothing and Drafting Examination was given without there
being any misrepresentation.
So far this case is concerned, the petitioner was quite aware
about the date of his superannuation, still she continued in service
and drew salary to which she was not entitled to and under this
situation, any order regarding recovery of the amount drawn in
excess cannot in view of the ratio laid down in a case of Radha
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Kishun vs. Union of India and others (supra), be held to be
illegal.
Accordingly, I do not find any merit in this application.
Hence, this application is dismissed.
(R.R. Prasad, J.)
ND/