Nagar Mal vs State of J&K and Others

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 respondentauthorities to recover a sum of Rs. 15,6907 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.

It is not in dispute that the appellant continued in service upto 28021997. As a matter of fact on 16121996 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. 28021997 AN."" When the matter was taken up by the

Accountant General an opinion was expressed that appellant Nagar Mai was due for retirement on attaining the age of 58 years and his retention

beyond 28021995 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 respondentauthorities 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. 26011970 at the age of 55 years. He continued in service upto 30071970. In the

meantime retirement age was raised to 58 years and employees became entitled to retiral benefits w.e.f.01041970. It was held that the status of

the civil servants in the above case could be that of a reemployed 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 reemployed. Similar situation arose in a case reported as 1989 KLJ 89. There was

no fraud or misrepresentation practised 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 28021995 would be that as if he had been reemployed. 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.