PERMOD KOHLI, J. - (1.) PETITIONER was serving as a Constable in the Police Department of the then State of Bihar. He was posted in the Dumka District Force. After earning one promotion, as Hawildar he finally retired from service on 7th March, 2000. According to the petitioner, he was not aware of the date of his retirement due to non -availability of his service book. It is stated that the service record of the petitioner had been destroyed and to support this contention reliance is placed upon a communication dated 20th of October, 2000 of the Superintendent of Police, Dumka. Petitioner was made to retire on 7th March, 2000 after his service book was received in the office of the Superintendent of Police, East Singhbhum, Jamshedpur, wherein, the date of the birth of the petitioner was recorded as year 1941. On the basis of the recorded date of birth, he was to retire on 30th of June, 1999. After retiring the petitioner, the Superintendent of Police, East Singhbhum, Jamshedpur passed an order No. 609 dated 8th of March, 2000 for recovery of salary drawn by the petitioner with effect from 1.7.1999 to 7th March, 2000 from his pension and gratuity. This order came to be challenged by the petitioner in WP(S) No. 3626 of 2003, which came to be disposed of vide order dated 12th October, 2004 with a direction to the Director General of Police to take a final decision on the representation pending before him. On consideration of the representation of the petitioner, the Director General of Police has passed a reasoned order dated 15th January, 2005 and concurred with the earlier order of the Superintendent of Police, East Singhbhum, Jamshedpur, dated 8th March, 2000 whereunder recovery was ordered.
(2.) ASSAILING both the abovesaid two orders of recovery and rejection of the representation of the petitioner, it is contended on behalf of the petitioner that petitioner overstayed in service, not on account of any misrepresentation on his part but due to negligence of the Department. It is particularly mentioned that service book of the petitioner was not made available and petitioner was not aware of his date of retirement, therefore he has overstayed in service and performed the service duties, hence no recovery can be effected from his pensionary and retiral benefits. Admittedly, petitioner has overstayed in service for a period of eight months and has drawn salary for this period. In the counter affidavit and in the order dated 8th March, 2000, it is stated that petitioner was fully aware of his date of retirement. It is also mentioned that petitioner approached the then Superintendent of Police, East Singhbhum on 8th of October, 1999 and informed him of his date of birth. The Superintendent of Police, wrote letters to the DIG, South Chhotanagpur, Ranchi for sending the service book of the petitioner, which was made available on 7th March, 2000 and on examining the service book, it was found that petitioner should have retired on 30th of June, 1999, accordingly, petitioner was made to retire on 7th of March, 2000. Consequently, recovery was ordered from his emoluments vide order dated 8th of March, 2000. Learned counsel appearing for the petitioner has relied upon a decision in the case of Suraj Rai V/s. State of Jharkhand and others, reported in 2002(3) JCR 342 (Jhr) : 2005(1) JLJR 362. This judgment relates to wrong fixation of pay. Another judgment relied upon is 2002(3) JCR 523 : 2003 (1) JLJR 505, Ram Kripal Sai V/s. State of Jharkhand and others. This case relates to overstaying in service and this Court set aside the order of recovery in view of an earlier judgment in CWJC No. 1752 of 1998(R), whereby a direction was issued for recovery of excess amount from the erring Officer. Petitioner has also relied upon a decision in the case of Sahib Ram V/s. State of Haryana and others reported in 1995 Supp (1) SCC 18, wherein, the Hon ble Apex Court held as under : '' "However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till date may not be recovered from the appellant.
(3.) THIS judgment was followed by this Court in the case of Bhola Prasad Choud -hary V/s. State of Jharkhand and others reported in 2004(3) JCR 313 (Jhr) : 2005(3) JLJR 553, wherein excess amount paid on account of wrong time bound promotion was directed not to be recovered.;