Anu Mazumder and Others vs Kolkata Municipal Corporation and Others

Hon''ble Mr Justice Jayanta Kumar Biswas

Tamali, the original first petitioner in this WP under art. 226 dated September 10, 2003, died during the pendency of the WP. Anu, the original second petitioner, is a daughter of Tamali whose other heirs and legal representatives have been substituted for her. Gourhari, Tamali''s husband and Anu''s father, was working in Kolkata Municipal Corporation (in short KMC). He was appointed on January 1, 1962, and at that date he was in possession of a Certificate of Registration dated December 15, 1961 issued under s. 5(1)(c) of the Citizenship Act, 1955.

In connection with his appointment, Gourhari appeared before the Health Officer of KMC and declared his age as 24. In the certificate issued by the Health Officer it was recorded that he appeared to be 26. On the basis of such certificate his age was recorded as 26 at the date of his appointment. According to such recorded age he was to retire on February 1, 1997.

Gourhari submitted an application dated December 19, 1994 requesting the Executive Engineer concerned to order his examination by a Medical Board so that he might be declared invalid and unfit for duty, and according to the existing scheme Anu might be considered for an employment in KMC. From time to time various steps were taken for his examination by a Medical Board that, however, never declared him invalid and unfit for duty.

According to the rules and regulations in force, KMC issued a superannuation notice that was received by Gourhari on January 12, 1996. It was stated in the notice that he would retire from service on February 1, 1997. Thereafter, he submitted an application dated September 4, 1996 requesting for correction of his recorded date of birth.

The Municipal Commissioner was the authority to decide the question of correction of date of birth. Documents have been produced to show that the Joint Municipal Commissioner made an order dated January 17, 1997 for correction of the date of birth accepting Gourhari''s case that at the date of his appointment he was 24.

Office notes were placed before the Joint Municipal Commissioner. It was pointed out that Gourhari requested for correction of date of birth at the fag end of his service career. Under the circumstances, by a decision dated July 14, 1997 (WP.P.30) the Joint Municipal Commissioner rescinded his order dated January 17, 1997 and placed the matter before the Municipal Commissioner, who approved the decision.

During pendency of the request for correction of date of birth, KMC superannuated Gourhari with effect from February 1, 1997. Gourhari, however, went on making representations. He died on August 31, 1999. Long thereafter this WP dated September 10, 2003 was filed seeking orders directing correction of Gourhari''s recorded date of birth, etc.

Mr. Sengupta appearing for the petitioners has argued as follows. The Certificate of Registration was to prevail over the unacceptable certificate issued by the Health Officer. Gourhari had no knowledge of the recorded date of birth until he received the superannuation notice. Decision of the Joint Municipal Commissioner dated January 17, 1997 could not be rescinded on the grounds that a large number of similar requests would be made.

Mr. Ghosh appearing for KMC has justified the decision of the Municipal Commissioner to maintain the recorded date of birth. He has said that Anu was not eligible for employment on compassionate grounds, because Gourhari had not been declared invalid and unfit for duty till February 1, 1997 when he was superannuated. He has said that if any amount is payable, KMC will immediately pay.

Gourhari received the superannuation notice on January 12, 1996. He requested for correction of the recorded date of birth on September 12, 1996. He had been appointed on January 1, 1962. He died on August 31, 1999. He did not approach the Court of law questioning any action or inaction of his employer.

The question is whether Tamali and Anu could approach this Court seeking orders directing correction of Gourhari''s recorded date of birth, declaring Gourhari invalid and unfit for duty with effect from December 1994, and directing KMC to consider Anu for an employment in KMC on compassionate grounds.

In my opinion, Tamali and Anu were not entitled to approach the Court seeking orders directing correction of Gourhari''s recorded date of birth, declaring Gourhari invalid and unfit for duty with effect from December 1994, and directing KMC to consider Anu for an employment in KMC on compassionate grounds.

Once Gourhari chose not to approach the Court of law questioning the superannuation notice, decision of his employer to superannuate him on the basis of the recorded date of birth, and his employer''s refusal to treat him as invalid and unfit for duty, his wife and daughters could not question his employer''s those actions and decisions.

Since Gourhari was not declared invalid and unfit for duty by a competent Medical Board, there was no question of accepting him as invalid and unfit for duty. Anu''s right to consideration for an employment on compassionate grounds could arise only if Gourhari was declared invalid and unfit for duty by a competent Medical Board.

Accepting the situation, Gourhari retired from service on February 1, 1997. Long after his death on August 31, 1999 his wife and the daughter whose employment he wanted, could not approach the Writ Court for any purpose except for the purpose of terminal benefits.

No material has been produced to show that terminal benefits payable to Gourhari were not paid by his employer. In para 5 of WP it has been vaguely alleged that Gourhari was not paid anything from December 1994 when he applied for voluntary retirement on medical grounds. Hence it is not possible for this Court to ascertain whether any payable amount has remained unpaid. For these reasons, I dispose of the WP ordering as follows. If terminal benefits and salary arrears have remained unpaid, then KMC shall pay such benefits to Gourhari''s heirs and legal representatives with interest according to law, within eight weeks from the date this order is served. No costs. Certified xerox.