Decided on May 12,1999

Nagar Mal Appellant
STATE OF JANDK Respondents


- (1.) A communication addressed by the Accountant General of the State of Jammu & Kashmir to the Director, School Education, Jammu whereby it has been held that the appellant is not entitled to get his service rendered by him beyond 28th Feb. 1995 calculated for pecuniary benefits and on the other hand directing the respondent -authorities to recover a sum of Rs. 15,690/ - from the arrears of pension payable to appellant was subject matter of challenge in a writ petition preferred by the appellant. The petition stands dismissed. It is against the above dismissal of the writ petition the present appeal has been preferred under clause 12 of the Letters Patent.
(2.) IT is not in dispute that the appellant continued in service upto 28 -02 -1997. As a matter of fact on 16 -12 -1996 the Principal, Govt. Higher Secondary School, Dachhan issued office order indicating, Sanction is hereby accorded to the grant to superannuation pension in favour of Shri Nagar Mal, peon of this institution on the eve of attaining the age of retirement w.e.f. 28 -02 -1997 AN.  When the matter was taken up by the Accountant General an opinion was expressed that appellant Nagar Mal was due for retirement on attaining the age of 58 years and his retention beyond 28 -02 -1995 was not in accordance with law. It was accordingly suggested that the excess pay for over stay period be recovered from the appellant. Without going into the question as to what would be the age of retirement of a peon, suffice it to say that the appellant was in no way instrumental in overstaying in service. It is not the case of the respondent -authorities that he made any misrepresentation or practiced any fraud with a view to continue in service beyond 58 years of age. As to how this aspect is to be dealt with is a matter on which the decision given by the Supreme Court can be of guidance. This decision has been given in case reported as Ram Swroop Vs. Municipal Council 1998(6) SCC 338. The appellant in the above case was due for retirement w.e.f. 26 -01 -1970 at the age of 55 years. He continued in service upto 30 -07 -1970. In the meantime retirement age was raised to 58 years and employees became entitled to retrial benefits w.e.f. 01 -04 -1970. It was held that the status of the civil servants in the above case could be that of a re -employed pensioner. He was held not entitled to any pensionery benefit for the over stay period, but it was observed that he should be treated as being re -employed. Similar situation arose in a case reported as 1989 KLJ 89. There was no fraud or mis -representation practiced by the concerned employee. It was accordingly observed that recovery cannot be made from such an employee. The appeal is accordingly allowed. The status of the appellant after 28 -02 -1995 would be that as if he had been re -employed. He would not be entitled to pensionary benefits from this period. No recovery be made from him. The appeal is allowed in the manner indicated above.;

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