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2002 DIGILAW 1492 (ALL)

SHIV NARAYAN UPADHYAY v. STATE OF U. P.

2002-10-11

RAKESH TIWARI

body2002
RAKESH TIWARI, J. ( 1 ) THE brief facts of the case are that the petitioner joined the service as a Runner, which is a class IV post, under the Executive Engineer, Sharda Sahayak Khand, Jaunpur on 2. 1. 1972. He had passed Class V from Primary School, Mahul, Azamgarh and his date of birth, as mentioned in the schools record, is 1. 9. 1939. A photo copy of the school leaving certificate issued by the head Master and counter- signed by the Upper Vidyalaya Up-Nirikshak (Sub-Deputy Inspector of Schools) has been appended as Annexure-1 to the writ petition. ( 2 ) ACCORDING to the date of birth, as recorded in the service book of the petitioner, respondent no. 2 has arbitrarily passed an order, dated 31. 1. 1991 to the effect that the petitioner had completed his age of superannuation on 30. 9. 1990. It is alleged by the petitioner that before passing of this arbitrary order, he was not given any opportunity or notice and as such, the impugned order, dated 31. 1. 1991, passed by respondent No. 2 is illegal and he has been prematurely retired 9 years earlier. He has further stated that three months salary said to have been given to him, had been never paid and as such the same cannot be adjusted. ( 3 ) BY order, dated 19. 3. 1991, this Court passed an order that no recovery shall be made from the salary of the petitioner in regard to any period prior to the retirement of the petitioner. The order, dated 19. 3. 1991 is as under :. . (VERNACULAR MATTER OMMITED ). . ( 4 ) THIS Court, by order, dated 29. 7. 2002 directed that standing counsel to produce the original service book of the petitioner before the Court on 20. 8. 2002 as it was contended by the learned counsel for the petitioner that the date of birth recorded in the service book of the petitioner is 1939. The service book was not produced by the standing counsel on 20. 8. 2002 and the case was again listed on 5. 9. 2002. On this date, the standing counsel prayed that the case may be taken up on the next date to enable him to produce the service book. When the case was taken up on 6. 9. The service book was not produced by the standing counsel on 20. 8. 2002 and the case was again listed on 5. 9. 2002. On this date, the standing counsel prayed that the case may be taken up on the next date to enable him to produce the service book. When the case was taken up on 6. 9. 2002, as prayed by the standing counsel, a prayer was again made for listing of the case in the next cause list. Following order was passed by the Court on the said date : "list in the next cause list. In the meantime, standing counsel may produce service record. " thereafter the case was listed on 16. 9. 2002. The department did not produce the requisite record on that date through the standing counsel. ( 5 ) FROM the above facts, it is apparent that inspite of repeated opportunity being afforded to the standing counsel, he has failed to produce the service record of the petitioner in which it is alleged by the respondents that the date of birth of the petitioner is 1931. The contention of the petitioner remains unrebutted that his date of birth in his service record is 1939 which is also apparent from the school leaving certificate appended as Annexure-1 to the petition. It is not denied by the standing counsel that the service book is in the possession of the employer, Le. , the state. In these circumstances, the Court has no other option but to take the averments made in the writ petition to be correct. He has been prematurely retired from service by the respondents. The State has not placed any incorrigible proof, much less the service book of the petitioner to establish that the date of birth of the petitioner was 1931 and he was rightly retired from service. ( 6 ) FOR the reasons, stated above, the writ petition is allowed. The impugned order, dated 31. 1. 1991 passed by respondent No. 2, is quashed. It is directed that the petitioner shall be paid all service benefits of 9 years taking his date of birth to be 1. 9. 1939. The petitioner shall be given notional promotion, if any, and his pensionary benefits etc. , shall be calculated treating him to be in service upto 30. 9. 1999. It is directed that the petitioner shall be paid all service benefits of 9 years taking his date of birth to be 1. 9. 1939. The petitioner shall be given notional promotion, if any, and his pensionary benefits etc. , shall be calculated treating him to be in service upto 30. 9. 1999. He shall also be paid interest at the rate of 12% per annum on all his dues which have become payable to him including three months salary not paid to him. ( 7 ) NO order as to costs. .