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Madhya Pradesh High Court · body

2011 DIGILAW 55 (MP)

Kashi Prasad Namdeo v. State of MP

2011-01-12

RAJENDRA MENON

body2011
JUDGMENT : Challenging the order-dated 6.2.2009 Annexure P/14, passed by the respondents treating the petitioner to have retired from service with effect from 30.6.1994 and further challenging the action of the respondents in not granting appropriate pensionary benefits and consequential post-retiral benefits to him, petitioner has filed this writ petition. 2. Facts that have come on record indicate that petitioner was working as a Patwari in the establishment of the respondents. He was appointed on 29.12.1966 and after working for 31 years he was retired on attaining the age of superannuation on 30.6.1997, vide order-dated 28.6.97. According to the petitioner even after his retirement on 30.6.97, when nothing was done and the benefit of superannuation was not granted to him, he submitted representation and in the process of fixing his pension and other benefits, the respondents have taken the impugned action treating the date of birth to be 3.6.1936'. It is the case of the petitioner that his date of birth is not 3.6.1936', but it is 3.6.1939' and in support thereof he has placed reliance on a school leaving certificate issued to the petitioner on 14.5.1956 Annexure P/8. It is the case of the petitioner that his original service book was missing from the department and, therefore, when the departmental authorities asked for submission of documents to prepare a duplicate service book, petitioner submitted the relevant documents i.e . the school leaving certificate Annexure P/8 and, therefore, the duplicate service book was prepared treating his date of birth to be 3.6.1939' and accordingly he was permitted to work upto 39.6.1997, when he was superannuated. Interalia contending that the action of the respondents in now treating the date of birth of the petitioner to be 3.6.1936', on the basis of the date of birth entered in the gradation list, available with the department, is illegal and unsustainable. Contending that case of the petitioner for grant of pensionary benefit should be finalized treating him to have retired on 30.6.1997 and directing the respondents to treat his date of birth to be 3.6.1939', petitioner has filed this writ petition. 3. Contending that case of the petitioner for grant of pensionary benefit should be finalized treating him to have retired on 30.6.1997 and directing the respondents to treat his date of birth to be 3.6.1939', petitioner has filed this writ petition. 3. Shri A.P. Singh, learned counsel for the petitioner, taking me through the documents and the material available on record, particularly the duplicate service book, the qualification of the petitioner and the certificate Annexure P/8, tried to emphasize that once the certificate shows that date of birth of the petitioner is 3.6.1939', the action of the respondents is unsustainable. 4. Shri S.S. Bisen, learned counsel for the respondents, has refuted the aforesaid and points out that as the service book of the petitioner was missing, the duplicate service book was got prepared on the basis of the documents submitted by the petitioner i.e Annexure P/8. However, while finalizing the pension claim of the petitioner, the certificate Annexure P/8 was found to be doubtful, because it was shown to be issued on 14.5.1956, whereas it could not be issued on the said date. It is the case of the respondents that on enquiry and on going through the service records, it was found that in the gradation list, available with the department, petitioner's date of birth is shown to be 3.6.1936 and accordingly treating the date of birth of the petitioner to be 3.6.1936', he is retired with effect from 30.6.1994 and the consequential action taken. Accordingly, respondents contend that the certificates produced by the petitioner and the entries made in the duplicate service book are not acceptable and in treating the date of birth of the petitioner to be 3.6.1936', respondents have not committed any error. It is further stated by learned counsel for the respondents that the petitioner has also not produced any material to show that the entries made in the gradation list, filed by the respondents' alongwith the return, are incorrect or cannot be relied upon. 5. I have heard learned counsel for the parties and perused the records. 6. From the records it is seen that in the gradation list, maintained in the Department, the date of birth of the petitioner is shown as 3.6.1936'. 5. I have heard learned counsel for the parties and perused the records. 6. From the records it is seen that in the gradation list, maintained in the Department, the date of birth of the petitioner is shown as 3.6.1936'. The petitioner wants this Court to hold that his date of birth is 3.6.1939' on the basis of the school leaving certificate issued to him vide Annexure P/8 and the consequential entry made on the basis of the same in the duplicate service book. If the school leaving certificate Annexure P/8 is perused, it is seen that it is a certificate pertaining to the education undertaken by the petitioner in Poorva Madhyamik Vidyalaya, Khuyar in District Sidhi. The petitioner is shown to have been admitted to the school on 14.1.1946 and left the school on 1.7.1954, and the certificate is issued to the petitioner on 14.5.1956. The certificate shows that it is issued by the Education Department by the State of MP. The petitioner has filed an affidavit to show that his date of birth is 3.6.1939'. It is also stated in the affidavit that at that point of time in the year 1956 no mark-sheets were issued and it was only the school leaving certificate which was issued to the petitioner. Respondents have categorically come out with a case that the said certificate Annexure P/8 could not be issued in the year 1956. I find much force in the aforesaid contention of the respondents. The State of Madhya Pradesh itself was created on 1.11.1956 and, therefore, it is impossible for an Education Department of the State of Madhya Pradesh to have issued a certificate five months before its creation on 14.5.56, when the State itself was created on 1.11.1956 it is not at all possible for a certificate to be issued in the name of the State of Madhya Pradesh as Annexure P/8. Admittedly, the certificate Annexure P/8 is issued after it was printed when the State of MP was created and in all probability it was issued on a request made by the petitioner, as a duplicate certificate much after the year 1956. In that view of the matter, I am not inclined to accept the case of the petitioner that the date of birth indicated in the certificate Annexure P/8 is correct. In that view of the matter, I am not inclined to accept the case of the petitioner that the date of birth indicated in the certificate Annexure P/8 is correct. Document Annexure P/8 for the reasons indicated hereinabove, is a doubtful document and no benefit of the aforesaid document can be given to the petitioner. 7. Apart from the aforesaid document and an affidavit, there is no material available on record to show that the date of birth of the petitioner is 3.6.1939. That being so, the respondents are correct in relying upon the date of birth indicated in the gradation list and in treating the petitioner's date of birth to be 3.6.1936' and consequently treating him to have retired on 30.6.1994, respondents have not committed any error. Accordingly, the action of the respondents in treating the date of birth of the petitioner to be 3.6.1936' and retiring him with effect from 30.6.1994 is upheld by this Court and the same does not warrant any interference. 8. However, as the petitioner had discharged his duties from 30.6.1994 upto 30.6.1997 and the State Government had utilized the services of the petitioner during the aforesaid period, interest of justice requires that the salary paid to the petitioner during the aforesaid period should not be recovered. That apart, for all other purposes i.e. for grant of post retrial benefits and other consequential retrial benefits petitioner would be deemed to have retired on 30.6.1994. Accordingly, respondents are directed to calculate the pensionary benefits treating the petitioner to have retired with effect from 30.6.1994, and pay the same to him within a period of two months from the date of receipt of certified copy of this order. 9. Petition stands allowed to the extent indicated hereinabove and disposed of without any order so as to costs. __________