B.SHANMUKHAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This Writ Petition has been filed, challenging the order of the Government made in G.O.(2D) No.158 dated 31.03.2009 and also the proceedings of the 2nd respondent in Pro.No.A5/40577A/2009 dated 08.07.2009, by which the services of the petitioner from 01.07.2007 to 31.03.2009 were directed to be treated as re-employment and the excess pay and allowances paid during re-employment were ordered to be recovered from the petitioner.

(2.) It was the case of the petitioner that he joined the service on 06.03.1974 and on 04.06.1976, he made an application for altering his date of birth from 01.07.1949 to 23.03.1951, which was returned back by the respondents on the ground that after regularization of his services, it would be accepted and he was asked to wait till his regularization. It is the further case of the petitioner that though his services were regularized with effect from 06.11.1982, proceedings to that effect were issued only in the year 1993 and thereafter, he made an application for change of date of birth on 29.10.1993 along with necessary documents. It was also the case of the petitioner that based on the facts and taking note of Rule 49 as stated in Paragraph No.3 of the affidavit, the date of birth has been altered in the Service Register. Since the application has been made within 5 years and that there is an alteration of date of birth by the respondents in the Service Register, the petitioner was allowed to continue his work beyond 30.06.2007 and he attained the age of superannuation on 31.03.2009 as per the altered date of birth. Therefore, the action of the respondents in treating the period of service from 01.07.2007 to 31.03.2009 as re-employment is not correct and in that process, the petitioner was paid full wages for the period mentioned supra and by virtue of the impugned order, the respondents attempt to recover Rs.27,000/- from the petitioner, which is the difference in amount paid as wages beyond pension amount. Challenging the same, the petitioner is before this Court.

(3.) The respondents have filed a counter affidavit, in which it was stated that by virtue of the order of the 2 nd respondent dated 23.09.1997, the date of birth of the petitioner was muted in the Service Register as 23.03.1951 and was permitted to continue his duties and when the proposal was sent to the Government on attaining the age of superannuation, the Government refused to accept the proposal on the ground that the change of date of birth of the petitioner was contrary to Rule 49(a), 49(b) and 49(c) of Part-II of the Tamil Nadu State and Subordinate Service Rules. It was also stated in the counter affidavit that the petitioner cannot try to take advantage of the lapses of the 2 nd respondent and in order to protect the interest of the petitioner, though his pensionary benefits were restricted to 30.06.2007, the excess period was ordered to be treated as reemployment. Therefore, the petitioner is not entitled to any relief and the Writ Petition is liable to be dismissed.