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2009 DIGILAW 86 (ORI)

UNION OF INDIA (UOI) v. SRI GOURANANDA DEO

2009-01-30

I.M.QUDDUSI, SANJU PANDA

body2009
JUDGMENT : I.M. Quddusi, J. - The instant writ petition has been filed on behalf of the Union of India represented by the Chief Post Master General, Orissa Cuttack and others against the JUDGMENT dated 9.4.2002 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 21 of 2001 allowing the OA filed by the opposite party by quashing the retirement notice dated 9.2.1999 directing the opposite party to retire with effect from February, 1999 after attaining the age of superannuation and allowing the back wages of the opposite party. However, liberty was granted by the Tribunal to the instant Petitioners to give notice to the opposite party for correction of his date of birth from 17.8.1939 to 10.3.1931 and to pass consequential order, if any, only after hearing him. 2. The brief facts of the case are that opposite party was appointed as GDSDA, Chandia B.D. on 29.12.1961 and during annual inspection of the said B.D., the Inspector of Posts, Dharmasala Sub-Division observed that the opposite party is not capable of managing his duty due to old age. On 9.2.1999, the Inspector of Posts requested the Postmaster, Kendrapra H.O. to intimate the actual date of birth of the opposite party as per the H.O. records, pursuant to which, the Postmaster, Kendrapra H.O. intimated that the date of birth of the opposite party is 10.3.1931 as per the information supplied by the opposite party at the time of joining into his service and on the basis of the said date of birth, the opposite party was due to retire on 10.3.1996 and accordingly, he has overstayed for a period of three years. Thereafter, the Inspector of Posts, Dharmasala on that very day i.e. on 9.2.1999 issued a memo of retirement and accordingly the opposite party was relieved from the post on 13.2.1999 FN. Further a gradation list was prepared by the Superintendent of Post Offices, Cuttack North Division basing on the report of the Inspector of Posts, Dharmasala in which the date of birth of the opposite party was wrongly noted as 17.8.1939 instead of 10.3.1931 on the intimation submitted by the Inspector of Posts, Dharmasala by mistake and there is no documentary evidence in support of the date of birth of the opposite party as 17.3.1939 except that very same gradation list. At the time of initial recruitment of the opposite party, his date of birth was recorded as 10.3.1931 in the service particulars in which he has given his LTI and signature. Because of the wrong entry in the gradation list, the opposite party got a chance to work for some more period, i.e., three years. Thereafter, on 17.11.1999, he submitted a representation to change his date of birth. In view of the above, the opposite party had to retire on 10.3.1996 and since he has overstayed for more than three years, retirement notice was issued immediately and accordingly he was relieved on 13.2.1999 FN. which was challenged before the Tribunal. 3. Mr. Mishra, learned Assistant Solicitor General of India, has submitted that in similar cases like in O.A. No. 561/1994., V. Gobindraj v. Sr. Suptd. of Post Offices. Salem and O.A. No. 188/93 V.D. Gopal v. Union of India, the Central Administrative Tribunal, Madras Bench having rightly gone through the cases, dismissed the cases holding them as without any merit. But in the instant case, the Central Administrative Tribunal, Cuttack Bench, Cuttack, without considering the factual facts of the case, passed the impugned order dated 9.4.2002 vide Annexure-1, which is against the settled principle of law and decision of the apex Court. Thereafter, the opposite party filed Contempt Proceeding (Civil) No. 73 of 2002 alleging non-compliance of the order dated 9.4.2002. 4. The trouble started from the stage when by mistake the opposite party's date of birth was recorded as 17.8.1939 instead of 10.3.1931 in the gradation list. It may be noticed that during pendency of the contempt petition, the opposite party was afforded an opportunity of personal hearing on 23.8.2004 in connection with change of his date 'of birth in service records. But during personal hearing, the opposite party failed to produce any documentary evidence in support of his date of birth as 17.8.1939 and accordingly, the appointing authority concluded the pending with the finding that the correct date of birth of the opposite party is 10.3.1931, the date mentioned in the descriptive particulars. 5. This is a well-settled law that the date of bind recorded at the time of entry into service, cannot be changed except in exceptional circumstances. In the instant case, no exceptional circumstance has arisen. 5. This is a well-settled law that the date of bind recorded at the time of entry into service, cannot be changed except in exceptional circumstances. In the instant case, no exceptional circumstance has arisen. At the time of initial entry into service, the date of birth of the opposite party was mentioned as 10.3.1931 but as it appears he took advantage of some error in the gradation list and started claiming his date of birth as 17.8.1939. He was appointed as GDSDA, Chandia B.O., whose age of superannuation is 65 years and the opposite party worked three years beyond 65 years and the Government, vide order dated, 9.12.2003, granted ex-post facto approval of the President for regularization of allowances paid to the opposite party i.e. from 10.3.1993 to 12.2.1999 with the condition that the said period of service will not count for the purpose of ex-gratia gratuity/severance amount. 6. In view of the above mentioned facts and circumstances there was no scope of judicial review in the matter for the Tribunal. The Tribunal had also directed the Petitioners to grant opportunity of hearing to the opp. party and the same was granted to him pursuant to such order. But we are of the opinion that part of the order of the Tribunal is also not sustainable in the eye of law as according to the date of birth entered in the service book, the opposite party should have been retired on attaining the age of superannuation and there was no need to provide any opportunity thereafter if he was wrongly retained in service against the rules. It was the opp. party who raised dispute. Hence, there was no necessity to grant any opportunity of hearing before retiring the opposite party at the age of superannuation according to the date of birth recorded in his service book at the time of entry into the service; moreso when it is not also disputed that the opposite party was not having academic qualification when he entered in to the service. Having regard to the facts and circumstances, the writ petition deserves to be allowed and the same is allowed. The impugned order passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack on 9.4.2002 in O.A. No. 21 of 2001 is quashed. No order as to costs. The contempt petition pending before the Tribunal shall be concluded in view of the above order. The impugned order passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack on 9.4.2002 in O.A. No. 21 of 2001 is quashed. No order as to costs. The contempt petition pending before the Tribunal shall be concluded in view of the above order. Sanju Panda, J. 7. I agree. Final Result : Allowed