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Uttarakhand High Court · body

2008 DIGILAW 44 (UTT)

Karan Singh v. State of Uttarakhand

2008-01-31

B.LAL, K.R.BHATI

body2008
JUDGMENT DELIVERED BY HON'BLE SRI B.LAL, CHAIRMAN: 1. By means of this claim petition, petitioner seeks to quash order dated 28.3.2007 by which petitioner's superannuation was proposed w.e.f. 30.6.2007. Petitioner also claimed that on 21.12.1973 when his service book was prepared, the age of petitioner has been entered as 23 years according to which he is due for superannuation in the year 2010 and therefore respondents be directed not to retire him earlier than on due date. Alternatively, it is prayed that his date of birth is entered in the Pariwar Register as 12.4.1952 and he be superannuated according to the date of birth entered in the Pariwar Register. Petitioner also challenged Rule 3 of 1974 Rules. 2. Facts necessary for the disposal of the claim petition are that petitioner entered in the service on 20.9.1970 as Follower in the Police Department. His year of birth was wrongly entered in the service book as 1947 whereas his age was 23 years, mentioned in the service book accordingly his year of birth should have been determined as 1950 instead of 1947 as recorded by the respondents in his service book. It is further stated that his real date of birth is 12.4.1952 as entered in the Pariwar Register, copy of which Annexure-3 has been filed. It is also stated that an identity card was issued by the Election Commission of India, wherein his age is shown as 53 years as on 1.1.2007. 3. Respondents filed their written statement and denied all the allegations made by the petitioner in his claim petition. It is submitted by the respondents in their counter affidavit that according to the service book of the petitioner, the date of birth has been shown as 1947. In accordance with the Government order dated 28.7.1987, if only year of birth is shown 'in the service book, his date of birth should be deemed as 20th July of that year and accordingly petitioner is due for retirement on 30.6.2007. According to Government, order dated 7.6.1980, the Government servant shall be superannuated in accordance with the date of birth mentioned in the service book. Accordingly, the petitioner is due for retirement on the basis of year of birth entered in the service book of the petitioner. 4. Heard learned counsel for the petitioner Sri J.K.Jain and Sri Umesh Dhaundiyal, learned Assistant Presenting Officer for the respondents. 5. Accordingly, the petitioner is due for retirement on the basis of year of birth entered in the service book of the petitioner. 4. Heard learned counsel for the petitioner Sri J.K.Jain and Sri Umesh Dhaundiyal, learned Assistant Presenting Officer for the respondents. 5. The contention of the petitioner is that at the time of preparation of service book on 21.12.1973, he was 23 years of age which is entered in Column-5 of the service book. Respondents at their own calculated the year of birth as 1947 and mentioned in the service book. Superannuation on the basis of such fictitious entries based on wrong calculation is against rules and principles of natural justice. We have very carefully perused the copy of the service book of the petitioner filed by the petitioner and admitted by the respondents and found that in Column No.5, the date of birth is not recorded but age of the petitioner is mentioned as 23 years along with year of birth as 1947. In this case though the petitioner is stated to have joined his initial service on 20.9.1970 as stated in Annexure-1 filed by the petitioner along with his rejoinder, however, the service book was prepared on 21.12.1973. The entries have been filled in by the department, wherein among other details the age of the petitioner has been shown as 23 years and year of birth is shown as 1947. Ld. Counsel for the petitioner submitted that on the basis of age disclosed by the petitioner on 21.12.1973, the year of birth should have been 1950 and not 1947. Petitioner being illiterate only informed his actual age on the date service book was prepared. He never mentioned the year of birth as entered in the service book. It appears that respondents while issuing proposal for the retirement of the petitioner, taken the year of birth based on wrong calculation into consideration and ignored the age which is mentioned against the relevant column of service book. Ld. A.P.O. referred notification dated 7.6.1980 amending the earlier Rule of 1974 wherein it is stated that no Government servant will be allowed to dispute the date of birth mentioned in the service book prepared at the time of initial appointment and submitted that the petitioner has no right to dispute the date of birth mentioned in the service book. It is further argued by the Ld. It is further argued by the Ld. A.P.O. that the date of birth cannot be disputed at the stage of superannuation and therefore, claim petition is not maintainable. 6. We have perused the service book as filed by the petitioner and it is seen that the case is not barred under amended Rules of 1980 for the simple reason that petitioner is shown as 23 years old on 21.12.1973 in the service book, and thus the year of birth of the petitioner come to 1950 and not 1947 as mentioned. Therefore, the age (23 years) shown in the service book does not match with the year 1947 as calculated and mentioned in the service book. It appears that though the petitioner has disclosed his age as 23 years on 21.12.1973 to the concerned officer who prepared the service book, however the respondents without matching the year of birth, arbitrarily mentioned the year of birth as 1947. In this case, petitioner being illiterate, recruited on the post of Follower in the Police Department, stated his age as 23 years on 21.12.1973 which was entered in the service book and therefore, for all the purposes including superannuation, the date so entered is relevant and the date of superannuation should have been determined accordingly. Since service book is prepared by the department and petitioner has no role to play in preparation of service book, therefore the age favouring Government servant must be taken into consideration and not the year of birth (1947) mentioned by the department because the Government cannot get the benefits of its own error. 7. Though Rule 3 of 1974 Rules debarring the Government servant from agitating date of birth mentioned in the service book has also been sought to be declared as ultravires, however neither any emphasis has been made on this relief nor. Rule 3 of 1974 Rules applies in the case of the petitioner as petitioner is relying on the age mentioned in Column 5 of the service book. He is only denying the corresponding year entered in his service book by the respondents which does not match the age which he disclosed and entered in his service book. 8. The petitioner has also claimed an, alternative relief stating that his actual date of birth is 12.4.1952 as entered in the Pariwar Register. He is only denying the corresponding year entered in his service book by the respondents which does not match the age which he disclosed and entered in his service book. 8. The petitioner has also claimed an, alternative relief stating that his actual date of birth is 12.4.1952 as entered in the Pariwar Register. He also relied on the age mentioned in the identity card issued by the Election Commission. In our opinion any date of birth recorded or produced subsequent to preparation of service book of the Government servant after lapse of considerable time, cannot be taken into consideration. The age of the petitioner as 23 years is entered in the service book which shall be deemed to be the age for the purpose of superannuation and any other date of birth claimed by the petitioner cannot be taken into consideration for the purpose of determining date of his superannuation. Therefore, alternative relief cannot be granted to the petitioner. 9. Considering all the facts and circumstances of the case, we are of the considered opinion that the age of the petitioner i.e. 23 years entered in the service book at the time of preparation of service book is only relevant for the purpose of superannuation. The year of birth i.e. 1947 entered in the service book in Column-5 has no match with the age disclosed by the petitioner which was entered by the department on the basis of wrong calculation of year of birth. Therefore, petitioner is entitled to be superannuated from service on the basis of entries made in the service book at the instance of the petitioner and not on the basis of wrong determination of year of birth by the respondents. 10. In view of the above, the claim petition is partly allowed and order dated 28.3.2007 is set aside with consequential benefits.