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1997 DIGILAW 161 (GAU)

Ganga Ram Borah v. State of Assam

1997-08-13

M.RAMAKRISHNA, W.A.SHISHAK

body1997
M. Ramakrishna, C. J.- We have heard the learned counsel for the appellant and perused the grounds of appeal as well as the order of the learned Single Judge under appeal. 2. We have heard Mr. BP Borah, the learned Govt Advocate for the State of Assam, respondent herein, on merits. 3. By perusal of the order made by the learned Single Judge in Civil Rule No. 23 73 of 1994 on 21.1.97, it is clear that in the absence of the learned counsel representing the petitioner, the Court having gone into the merits of the case, and holding that there was no merit in the writ petition, dismissed the writ petition, which is contrary to the principles of natural justice. 4. Admittedly, on 21st of January, 1997, the learned counsel for the petitioner was absent and the petitioner was also absent. The High Court Rules clearly provides that in such a situation, it is open to the Court to dismiss the matter for default of both the party and counsel. But in the absence of the parties and the counsel, it is not right for the Court to have observed that the Court has gone into the merits of the case and was satisfied that there was no case made out. This is not only contrary to the principles of natural justice, but also .to that of the provisions of Order IX Rule 3 CPC because Order IX Rule 3 provides that where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed. It does not mean that the suit is dismissed on merits of the case but the writ petition could have dismissed for default of the parties and the counsel. We are, therefore, satisfied that the appellant has made out a case to recall the order under appeal. The learned Govt Advocate has no objection to this. Therefore, the order made on 21.1.97, disposing of the writ petition, Civil Rule Nc. 2373 of 1994 is set aside. 5. However, we will now consider the merits of the case in this appeal. The case of the appellant/petitioner is that normally, the appellate Court should have remitted the matter for reconsideration after recalling the order of dismissal of the writ petition on default. 2373 of 1994 is set aside. 5. However, we will now consider the merits of the case in this appeal. The case of the appellant/petitioner is that normally, the appellate Court should have remitted the matter for reconsideration after recalling the order of dismissal of the writ petition on default. But in the instant case, we are of the view that no purpose will be served in following that procedure. The reason is obvious. That the question of law arising in the writ petition has been settled by the Supreme Court long back and the law has been declared by the Supreme Court. Hence there is no merit in this case. The writ petitioner/appellant was serving under the Revenue Authority. Tezpur, and he was ordered to be retired on attaining superannuation age of 58 years. Accordingly, he was ordered to be retired on 31.3.94. by an order made by the Deputy Commissioner on 11th April, 1994, stating that he had attained 58 years of age on 28.3.94. Pursuant to that, on 25th April, 1994, the appellant/petitioner was released from the office. 6. The petitioner not being satisfied with this order of superannuation, he attempted to show that the date of birth as shown in the order of superannuation as 29.3.36, was not correct and that his correct date of birth will be 28.3.40. He had approach the Deputy Commissioner for doing the needful. Ultimately, the matter ended up in presenting of the writ petition before this Court in Civil Rule No.2373 of 1994. The matter was pending before the writ Court till 21st January, 1997. when the above impugned order was passed by the learned Single Judge. 7. It is enough to say that the Supreme Court had the occasion to deal with this question in Burn Standard Co Ltd & others vs. Dinabandhu Majumdar & another as reported in AIR 1995 SC 1499 . when the above impugned order was passed by the learned Single Judge. 7. It is enough to say that the Supreme Court had the occasion to deal with this question in Burn Standard Co Ltd & others vs. Dinabandhu Majumdar & another as reported in AIR 1995 SC 1499 . Considering the question of correcting the date of birth at the fag end of service by a Govt servant, the Supreme Court declared as follows : "Ordinarily High Ceurts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his 'service and leave record' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement." Please see paragraph 10 (ten) of the judgment. Therefore, in the light of the judgment of the Supreme Court, we are of the view that in a petition under Article 226 of the Constitution, the discretionary power cannot be exercised by the writ Court with a view to correct the date of birth at the fag end of one's service career. 8. As on today, three years have elapsed after the retirement of the appellant. Therefore, we are of the view that no purpose will be served to keep the matter pending in the writ Court. In the light of the foregoing, the appeal stands disposed of in terms of this judgment and order. No order as to costs. Before parting with this matter, it has become necessary for us to observe that as on today, because of the pendency of the writ appeal before this Court, if the competent authority has taken steps to clear the papers seeking for pension in favour of the appellant/petitioner, the competent authority shall take steps now to clear the concerned papers and shall extend the benefits of pension in accordance with law in favour of the appellant/petitioner.