Ali Mohammad vs State and Ors.

Rjzvi, J.—The petitioner was working as a chowkidar in a Mission Hospital which was taken over by the Jammu and Kashmir Government in the year, 1950, and named as Jawabar Lal Nehru Memorial Hospital. The staff members were retained by the State Government but they were

reappointed. The petitioner was illiterate and over aged and the Government relaxed his age by 12 years 4 months and four days. The petitioner did not know as to when he had to retire from the service and continued in service till 1871986, when he was abruptly retired without any notice.

By medium of this writ petition, he challenges the said order on various grounds as mentioned therein and prays for its quashment as also for a direction against the respondents not to recover any amount from him, received by him as salary till 1871986.

The respondents were noticed. They filed their objections to the admission of the writ petition. The case put forth by the respondents that the

date of birth of the petitioner was recorded as 2451929 in his service book which was acknowledged by him as correct and in token there of he has signed the same. He had to retire on 3151984. In advertantly the competent authority did not issue any notice to him in this behalf with the result that he continued in service for two years more. Consequently on the examination of his service book the mistake was detected and his retirement was ordered retrospectively on 1871986.

We have heard the learned counsel for the parties on the admission of this writ petition.

It may be stated at the very outset that the controversy between the parties lies in a very short compass firstly what should be the date of

retirement of the petitioner secondly whether the respondents can recover that amount from the petitioner, which was received by him as salary for the period he had put in, inadvertently after the date of his due retirement.

Mr. Nazki submitted that he gives up the first prayer as regards the date of retirement of the petitioner and concedes that be had to retire on

3151984 as stated by the respondents with this concession the main controversy gets resolved. Now it is to be seen as to whether respondents can recover the amount from the petitioner which be had received as his salary after the due date of retirement. Admittedly the petitioner is an illiterate person and belongs to inferior service. He was not expected to know his actual date of retirement. It was the duty of the competent authority to give him a notice of 18 months before his actual date of retirement. The respondents have frankly conceded in their objections that inadvertantly such notice was not given to him. That being so how could they recover any amount from him which was received by him as his

salary. He has received this amount not as gratis but as wages for the labour put in by him. "Beggar" stands since abolished add there is therefore,

no justification for recovering any amount from the petitioner received by him in lieu of his labour. The period of overstay which occurred not due to any malafide intention of the petitioner but on account of negligence of the competent authority has therefore, to be treated as his reemployment.

He has already put is the labour for such period and also received his wages for the same which were due to him. That being so there is no administrative hitch in treating the period of overstay of the petitioner as reemployment. For financial convenience the competent authority shall have to pass an order accordingly.

In these circumstance of the case there is no need to admit the petition to hearing as the controversy has already been resolved above. It is

however directed that the period of overstay of the petitioner in service from 3151984 to 1871086 shall be treated as his reemployment for the said period for all intents and purposes including the pensionary benefits. The respondents shall not recover any amount from the petitioner received by him as his salary for the said period.

We accordingly, dispose of the writ petition as settled. File be consigned to records.