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2000 DIGILAW 822 (ALL)

LALTA PRASAD v. U. P. CO-OP. FEDERATION, LUCKNOW

2000-05-25

U.K.DHAON

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U. K. DHAON, J. ( 1 ) SRI Lalta Prasad has approached this Court against the order dated 12. 10. 92. by which he had been retired from service with effect from 30. 11. 92. ( 2 ) THE contention of the learned counsel for the petitioner is that the date of birth of the petitioner is 13. 4. 1941. which is mentioned in the personal file of the petitioner. He further submits that a communication dated 20. 10. 1975 was issued from the office of opposite party No. 1 and the petitioner was required to indicate his date of birth as well as his educational qualifications and in compliance of the said communication, the petitioner submitted prescribed form mentioning his date of birth as 13. 4. 1941. He also submits that in the seniority list of the year 1973, the date of birth of the petitioner is mentioned as 13. 4. 1941 and same date of birth is also mentioned in the seniority lists of the years 1986 and 1991 and as such the impugned order is legally not sustamable. ( 3 ) SRI Anil Kumar Tewari, the learned counsel for the opposite parties submitted that the date of birth of the petitioner is 12. 11. 1932 and the petitioner is being retired on the basis of the date of birth declared by the petitioner in his provident fund form, which was filled up by the petitioner in the year 1962, where the petitioner has declared his date of birth as 12. 11. 1932. It has also been submitted that before passing the Impugned order, the opposite parties have confirmed from the Regional Provident Fund Commissioner, U. P. about the declaration made by the petitioner regarding his date of birth by way of abundant caution. He further submitted that before passing the Impugned order, the petitioner was afforded an opportunity and he was duly informed through letter dated 26. 11. 92 that he will attain the age of superannuation on 30. 11. 92. In the rejoinder-affidavit, it has been stated by the petitioner that he is an uneducated person and he had not made any declaration before any authority whatsoever that his date of birth was 12. 11. 1932. It has also been stated that the petitioner came to know of the present stand taken by the opposite parties after the service of the copy of the counter-affidavit. 11. 1932. It has also been stated that the petitioner came to know of the present stand taken by the opposite parties after the service of the copy of the counter-affidavit. The petitioner has also preferred an application before the Regional Provident Fund Commissioner to make necessary correction in the date of birth and has also stated before the Regional Provident Fund commissioner that he had made no declaration to the effect that his date of birth was 12. 11. 1932. The opposite parties have passed the Impugned order on the basis of the date of birth, which is mentioned in the declaration made before the Regional Provident Fund Commissioner and the petitioner never informed by the authorities that they will retire the petitioner on the basis of alleged declaration made before the Regional Provident Fund Commissioner. ( 4 ) 1 have heard Sri Vivek Raj Singh. the learned counsel for the petitioner and Sri Anil Kumar tewari. the learned counsel for the opposite parties and gone through the entire record. ( 5 ) THE petitioner was appointed in class IV service with U. P. Cooperative Federation on 26. 5. 1960. The personal file of the petitioner was produced before this Court, in which the date of birth of the petitioner is mentioned as 13. 4. 41. The opposite parties have passed the impugned order retiring the petitioner on the basis of the date of birth mentioned in the provident fund form, alleged to have been filled up by the petitioner in the year 1962, wherein the date of birth of the petitioner is mentioned as 12. 11. 1932. The services of the petitioner and other employees are governed by U. P. Co-operative Federation Ltd. , Karmchari Sewa Niyamawali. 1980 and rule 25 of the said Niyamawali provides for maintenance of personal file, character rolls and service record of every employee. In the personal file. the date of btrth of the petitioner is mentioned as 13. 4. 41 and the date of birth mentioned in the provident fund form cannot be taken into consideration for the purposes of retirement as the provident fund account is maintained in the office of Regional Provident Fund Commissioner and it cannot be said to be the service record or the service book maintained by the opposite parties. The petitioner had already submitted his horoscope as proof of his date of birth on 1. 12. The petitioner had already submitted his horoscope as proof of his date of birth on 1. 12. 75 and the same has been acted upon by the opposite parties. The petitioner was appointed on 26. 5. 1960 and at that time the age of the petitioner in accordance with the horoscope, which is mentioned in the personal file, comes to 19 years. The opposite parties have also violated the principles of natural justice as no show cause notice was gfven to the petitioner and by the Impugned order dated 12. 10. 92, the petitioner was Informed that he will complete the age of 60 years on 12. 11. 92 and accordingly will be retiring on 30. 11. 92. A Government servant after entry into service acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds, contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service record of a civil servant is. thus, of utmost Importance for the reasons that the right to continue in service stands decided by its entry in the service record. The date of birth of the petitioner is also mentioned in the seniority lists of the years 1973. 1986 and 1991 and in all these seniority lists the date of birth is mentioned as 13. 4. 41 and as such the impugned order has been passed without affording any opportunity to the petitioner, which is violative of the principles of natural justice. The Honble Supreme Court has also held in the case of Bum Standard Co. Ltd. and others v. Dinabandhu Majumdar and another. (1995) 4 SCC 172 , that the date of birth mentioned in service and leave record is final. ( 6 ) THIS Court has also allowed Writ Petition Wo. 5291 (SS) of 1991, Khem Singh Negi v. U. P. Co-operative Federation Ltd. and others, by the judgment and order dated 17. 3. 93 on identical facts, wherein also the employee was retired on the basis of date of birth entered in the provident fund form without affording any opportunity before passing the order of retirement. 5291 (SS) of 1991, Khem Singh Negi v. U. P. Co-operative Federation Ltd. and others, by the judgment and order dated 17. 3. 93 on identical facts, wherein also the employee was retired on the basis of date of birth entered in the provident fund form without affording any opportunity before passing the order of retirement. ( 7 ) IN view of the aforesaid facts, the writ petition succeeds and a writ in the nature of certiorari is issued quashing the impugned order dated 12. 10. 92 passed by the opposite party No. 1. contained in Annexure-1 to the writ petition. A writ in the nature of mandamus is also issued directing the opposite parties to allow the petitioner to work and pay salary. In the circumstances of the case, no order as to costs. .