Steps Must Be Taken To Digitalize Service Records Of Employees To Root Out Problem Of Overstay: Gauhati High Court

The single judge bench of Justice Devashis Baruah observed:

“…this Court finds it shocking that the official concerned had signed on the Service Book on 30.03.2007 and did not insist that the date of birth of the petitioner be inserted as is required in terms with column No.7 of the Service Book. It is further necessary to take note of that there is no allegation of any fraud or misrepresentation on the part of the petitioner which led to the overstay of the petitioner. On the other hand, the affidavit-in-reply as well as the additional affidavit so filed shows that it is on account of the petitioner’s persistent efforts which have led to the issuance of the superannuation notice to the petitioner.”

The petitioner was initially appointed as Stipendiary Teacher on November 17, 1999 on a fixed pay of Rs.900/-. Further, he underwent Basic Training Course and got the regular scale of pay w.e.f. January 17, 2006. The petitioner retired on August 10, 2021 as per the retirement notice issued by the Block Elementary Education Officer (BEEO) Paschim Nalbari of Nalbari District.

However, BEEO issued the impugned communication dated September 13, 2021 to the petitioner mentioning that there was excess drawal of monthly salary for the period from February 01, 2018 to June 30, 2021 i.e. an amount of Rs.17,07,100/- and the petitioner was asked to pay the said amount.

The petitioner approached the High Court assailing the impugned communication.

The bench noted that the Service Book produced by the Elementary Education Department reveals that the official who has put the signature is the Block Elementary Education Officer, Paschim Nalbari.

"Surprisingly, in column No.7 of the Service Book which is a column pertaining to “Date of birth of Christian era as nearly can be ascertained”, the same has been kept blank and there is a signature of the Block Elementary Education Officer with the date being inserted as 30.03.2007. This is almost 11 years prior to the petitioner’s actual date of retirement. It further transpires that there are further attestations being made in the Service Book by the Block Elementary Education Officer on 30.03.2007 and 30.12.2011. Subsequent thereto, although there has been various attestations being made by the Block Elementary Education Officer, Paschim Nalbari, there is no date put against such attestations," said the court. 

The Court relied upon the judgment of Supreme Court in State of Punjab and Others v. Rafiq Masih (White Washer) and Others (2015) 4 SCC 334 wherein it was held that recovery from the retired employees, or the employees who are due to retire within one year, would be impermissible in law.

Thus, the court set aside the impugned communication dated September 13, 2021 with following directions:

1. The respondent authorities are directed not to make any recovery from the petitioner in any mode including from the retirement dues of the petitioner, the amount of Rs.17,07,100/- which was computed to be the excess payment drawn by the petitioner on account of overstay.
2. The respondent authorities are directed to fix the retirement benefits of the petitioner on the basis of the petitioner’s actual date of superannuation i.e. on January 30, 2018 which is based upon the date of birth as recorded in the HSLC certificate.
3. The respondent authorities including the Elementary Education Department and the Director of Pension are directed to immediately process the pension of the petitioner so that the petitioner receives his arrear pension as well as all other pensionary benefits at the earliest i.e. within 4 months.

The Court further pointed that it has become a recurrent phenomenon that on every other day relating to litigations are filed challenging recovery or proposed recovery on account of overstay in service.

“In fact, the present case is an epitome of the lack of vigilance and diligence on the part of the officer who was required to see that the date of birth of the petitioner ought to have been inserted in the Service Book. This Court further fails to understand that in the present age where so much impetus is given to digitalization, how the issue as regards the date of birth and date of superannuation can still continue to remain an issue on the ground that the Service Book was not available,” the Court said.

It was further observed by the Court that if the State Government is serious to root out the problem of overstay, the State Government is required to take appropriate steps by not only holding the retiring employee accountable, if there is a case of fraud or misrepresentation, but also steps are required to be taken against such erring official for whose lack of diligence and vigilance it had led to overstay.

“This Court also feels that steps are also required to be taken to digitalize the service records of the employees so that not only the official who is required to issue the superannuation notice can do so without any hindrance but the senior officials of the Department can also keep a tab as to whether the official required to take steps for issuance of superannuation notice in doing so. This Court hopes and expects that the Government of Assam in its own wisdom shall take appropriate steps so that malady of the present kind do not continue,” the Court said.

Case Title: Baharul Islam v. The State of Assam & 7 Ors.

Citation: 2023 LiveLaw (Gau) 54

Coram: Justice Devashis Baruah

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