MANAGING DIRECTOR PDC & ORS. Vs. HABIBBULLAH LONE

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent Rules is directed against judgment and order dated 06.04.2005 rendered by the learned Single Judge while disposing of SWP No. 1671/2003. The learned Single Judge has directed that the writ petitioner respondent, who has over stayed his period of service, be treated as re-employed for the over stayed period and accordingly his retiral benefits by fixed in accordance with the relevant rules.

(2.) The facts are not in dispute. The writ petitioner-respondent earlier filed SWP no. 1568/2001 with prayer for settlement of his pension case, disbursement of pensionery benefits and for quashing Government Order No. 405-PDD of 2000 dated 13.12.2000 (P-III). The aforesaid Government Order has settled the dispute with regard to the date of birth of the writ petitioner to be 25.05.1935 and he was deemed to have retired on 31.05.1993. In fact he was actually superannuated on 06.09.1999 with effect from 01.09.1999. The learned Single Judge vide order dated 07.11.2002 issued a direction to the appellants-competent authority to process and complete his pension case and pay his retiral benefits of PDD in accordance with law and rules governing his service conditions. The aforesaid directions also clarify that order dated 13.12.2000 (P-III) should be deemed to have concluded the date of birth of the petitioner, namely, 25.05.1935. At that stage there was no order aiming to effect recovery of salary paid to him for six years of overstay. The question as to how to treat the over stayed period of six years, was also not raised nor decided. In pursuance of order dated 13.12.2000 (P-III) and the judgment of the learned Single Judge dated 07.11.2002 the office of Accountant General sent a letter dated 26.02.2003 to the Executive Engineer, Maintenance Division Gantmulla Baramulla. According to the aforesaid letter, for the period of over stay in the government service recovery was to be effected of the excess amount drawn and the department was directed to work out the total amount and intimate to the Accountant General by treating his date of retirement as 31.05.1993 whereas he actually retired on 06.09.1999.

(3.) Aggrieved by the aforesaid recovery process to be made, the writ petitioner-respondent was armed with another cause of action and he filed another petition bearing SWP no. 1671/2003 with the prayer, inter alia, that appellants be restrained from making any recovery from the writ petitioner-respondent in lieu of the pay which has been paid to him on account of over stay in service. A further prayer was also made for quashing communication dated 26.02.2003 which came to be issued after the decision of the earlier writ petition on 07.11.2002. The learned Single Judge, after considering the submissions made at the Bar, reached the conclusion that in the peculiar facts and circumstances a direction deserved to be issued to the appellant-authorities to settle the claim of the writ petitioner in respect of grant of pension by treating the overstayed period as re-appointment in service and then process his case for payment of retiral benefits keeping in view the relevant rules. The argument of the appellant that it would amount to reopening the order passed by the learned Single Judge on 07.11.2002 in SWP No. 1568/2000, was rejected by the learned Single Judge is evident from the following para of the impugned judgment:-