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Judgment
Aparesh Kumar Singh
Heard learned counsel for the parties. According to the petitioner, he was prematurely retired w.e.f. 30.11.2002 vide memo No. RIT/E-1609/2002 dated 9.7.2002. Petitioner has also sought for quashing of the office order dated 8.11.2002 and relieving order dated 30.11.2002. He has also sought for quashing of pension payment order dated 5.3.2003, whereby pension is allowed to be paid to the petitioner w.e.f. 1.12.2002 instead of his actual claimed date of superannuation i.e. 31.12.2003.
According to the petitioner he was appointed on the post of mechanic under R.I.T., Jamshedpur on temporary basis vide order dated 21.12.1978 (Annexure-1). At the time of appointment he submitted his original School Leaving Certificate (S.L.C.) as proof of his date of birth being 1.1.1944. Thereafter, he was confirmed w.e.f. 21.12.1980 vide Annexure-2 dated 12.5.1981 issued by the respondent. It is the case of the petitioner that he was asked to retire by the impugned letter dated 9.7.2002 w.e.f. 30.11.2002, more than 1 year prior to his actual date of retirement i.e. 31.12.2003 vide Annexue-4. Petitioner was thereafter relieved from his duties. Petitioner has produced the duplicate copy of the S.L.C. as Annexure-6 issued by the District Basic Education Officer, Ballia, Utter Pradesh vide his reference No. 1 dated 2.2.2003 showing his date of birth as 1.1.1944. Orders of relieving is annexure-7 and 8 and petitioner being aggrieved made representation for reconsideration which has not been responded. In the meantime pension payment order has been issued vide Annexure-9 and 9/A dated 5.3.2003.
The ground for assailing the impugned order are that the respondents have failed to take into account the correct date of birth being 1.1.1944 reflected in the S.L.C. at the time of entering into service and further by way of supplementary affidavit excerpts of service books has been brought on record, which shows 2 date of birth 1.1.1944, furnished by the petitioner and 28.11.1942, which is as per the medical certificate given by the medical Board constituted by the respondent. Counsel for the petitioner has relied upon the judgment of the Hon''ble Supreme Court in the case of State of Bihar and Others Vs. Pandey Jagdishwar Prasad, and submitted that in case there are 2 entries of date of birth in the service record, respondents ought to delete one of it to correct the entry, which has not been done in this case and benefit should be given to the employee. Learned counsel for the petitioner has further relied upon another judgment of the Hon''ble Supreme Court in the case of Mohd. Yunus Khan Vs. U.P. Power Corporation Ltd. and Others, to submit that on detection of mistake in the date of birth the respondent- employee should have taken steps to correct the same and in such circumstances Hon''ble Supreme Court allowed the correction of date of birth in case of said petitioner- Md. Yunus Khan and directed the respondents to pay 50% back wages.
Respondent, on the other hand submitted that petitioner entered into service on the post of cleaner on temporary basis vide order dated 24.11.1964 (Annexure-B). It is submitted that as per the decision of the standing administrative committee of the respondents, a procedure was adopted for determining and fixing the date of birth and age of Class-IV staff, who can not submit satisfactory documentary evidence of their date of birth, as per the age certified by the Medical Officers of the Institute and the Government Hospitals at the time of their entry into the service of the institute. Such condition was incorporated in the appointment letter of the petitioner subjecting him to appear before the Medical Officer of the R.I.T. Learned counsel for the respondent submitted that as per the medical certificate (Annexure-C), dated 28.11.1964, the Medical Officer opined that while the petitioner has stated his age to be 21 years, but in the opinion of the Medical Officer the age of petitioner was assumed as 22 years. Petitioner has put his signature on the said medical certificate. It is submitted that the impugned notice to retire the petitioner on 30.11.2002 and the relieving order have been issued taking into account his date of birth as per the certificate issued by the medical officer i.e. 60 years from November, 1942. It is submitted on behalf of the counsel for the respondent that the petitioner never objected to the said recording of age as shown in the medical certificate till the notice to retire him was issued in July 2002. Even the S.L.C. has been furnished in November, 2002, which is a duplicate copy obtained in the year 2002 itself. It is further submitted that in the excerpts of the service book, against the petitioner''s claim of date of birth to be 1.1.1944, date of birth of the petitioner has been shown as 28.11.1942 as per the medical certificate and which has been entered in the service book in the year 1967 itself. It is therefore submitted that the claim of the petitioner that he entered into service in the year 1978 is also not correct as he was actually engaged on temporary basis in the institute in the year 1964 itself when ascertainment of age was done by the medical board constituted by the respondent. In that view of the matter, learned counsel for the respondents submits that impugned action cannot be said to suffer from flaw and petitioner has rightly been retired at the age of his retirement. Petitioner cannot be allowed to raise the grievance relating to his age at the fag end of his service, which is settled law.
I have heard the counsel for the parties and gone through the relevant materials on record including the impugned notice and relieving order. From the rival contention of the parties, which has not been controverted by the petitioner as well, it appears that the petitioner initially entered into service in the year 1964 when he was subjected to medical examination as per the terms and condition of the appointment letter and administrative order. Petitioner participated in the examination for determination of his age before the Medical Officer, RIT, who opined his age to be 22 year on 28.11.1964 and petitioner also put his signature on the said report/medical certificate. It appears that the respondent had calculated the date of superannuation of the petitioner treating his date of birth as 22 years as on 28.11.1964 and accordingly, he was made to retire from service on 30.11.2002 after completion of 60 years. From the excerpts of the service book also it appears that against the petitioner contention of age as 1.1.1944, his date of birth reflected is 28.11.1942 based upon the Medical Officer certificate referred to supra.
The judgment relied upon by the petitioner in the case of State of Bihar and Others Vs. Pandey Jagdishwar Prasad, are on the facts when the appellant- State of Bihar had chosen to disbelieve the date of birth furnished by the employee based upon the matriculation certificate while retiring him on the basis of different date of birth recorded in the service book on the basis of his affidavit. In the said case the employee concerned was not even served notice of retirement and allowed to continue beyond the date of his retirement and paid salary for the same, thereafter, appellant-employer chose to retire him after 2 years from the date of actual date of retirement. In these circumstances, the Hon''ble Supreme Court had observed that Appellant-State were obliged to delete one of the date of birth and restrained the employer from recovery of the salary as there was no fraud or misrepresentation on the employee''s part. In the present case the date of birth shown by the petitioner on the basis of S.L.C., which has been annexed as Annexure-6 to the writ petition was produced in November 2002 itself. There is no evidence to suggest that the S.L.C. was produced at the time of entering into service. Moreover, in the absence of cogent proof respondent have followed the standing order of the administrative committee and subjected the petitioner for medical examination before the medical officer of the Board for determination of his date of birth in which petitioner participated and put his signature on 28.11.1964, which has lead the respondent to treat his date of birth as 28.11.1942. Petitioner never objected to the same till he was served with retirement notice. Petitioner has also relied upon the judgment of the Hon''ble Supreme Court Mohd. Yunus Khan Vs. U.P. Power Corporation Ltd. and Others, in which the employee had asked the respondent- employer for correction of his date of birth 4 years prior to his date of retirement. In the said case the documents of 2 employees having same name got mixed up resulting in younger employee showing older date of birth and older employee showing younger date of birth. In that circumstances, when the employee was forced to retire prematurely and request for correction of the date of birth was not heeded to even 4 years prior to his retirement, Hon''ble Supreme Court interfered with the same and directed the respondent to pay 50% back wages to the petitioner. The facts of the said case are distinguishable from the present case. In the present case age of the petitioner was determined at the time of entering into service in the year 1964 itself. Petitioner himself has given contradictory date of entry into service i.e. 1978 to substantiate his case but not controverted the statement of the respondent regarding entering into service in the year 1964 itself. In these circumstances and the reasons recorded herein above, this matter does not warrant interference from this Court. There is no merit in the case. Accordingly, this writ petition is dismissed.