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2012 DIGILAW 56 (ORI)

T. Dhruva Varma v. State of Orissa

2012-01-30

I.MAHANTY, PRADIP MOHANTY

body2012
JUDGMENT PRADIP MOHANTY, J. In this writ application, the petitioner challenges the order dated 06.10.2009 passed in O.A. No. 2003 (C) of 1998 by the Orissa Administrative Tribunal, Cuttack Bench, Cuttack and prays to issue writ of mandamus directing the opposite parties to release the pension and other retiral benefits on the basis of the last pay drawn by him on 30.06.1997. 2. The case of the petitioner in brief is that he joined as untrained Primary School Teacher on 19.01.1956. At the time he entered into government service his date of birth was entered in the service book as 02.05.1933 instead of 27.06.1939. Subsequently, he passed the matriculation examination conducted by the Andhra University and submitted the matriculation certificate before the authorities. Coming to know from the matriculation certificate that the actual date of birth of the petitioner is 27.06.1939, the authorities on 15.02.1970 corrected the wrongly recorded date of birth, i.e., 02.05.1933 as 27.06.1939 in the service book of the petitioner. The petitioner passed E.T. Examination conducted by the Board of Secondary Education, Orissa, Cuttack in the year 1971. While working as Headmaster of Golabanda Primary School, the petitioner attained the age of superannuation and retired from government service with effect from 30.06.1997 treating his date of birth as 27.06.1939. The petitioner submitted his pension papers in the month of July, 1997, but the Controller of Accounts, Orissa returned the same with a direction to submit the original school leaving certificate, original Andhra Matriculation certificate and the government order approving the correction of date of birth. The petitioner made a representation contending inter alia that the original school leaving certificate was submitted to the authorities at the time of initial appointment in the year 1956 and the government order approving the correct date of birth is not with him. He, however, submitted a duly attested photo copy of the original matriculation certificate. According to the petitioner the correction of the date of birth was made in the year 1970 and he retired from service after attaining the age of 58 years and as such there was no justification in not releasing the pension and other retiral benefits in his favour. 3. According to the petitioner the correction of the date of birth was made in the year 1970 and he retired from service after attaining the age of 58 years and as such there was no justification in not releasing the pension and other retiral benefits in his favour. 3. The case of the opposite parties in their counter before the Tribunal was that the petitioner was that the petitioner was made to retire from service with effect from 30.06.1997 taking into consideration his date of birth as 27.06.1939 recorded in his service book. His pension papers were submitted to the Controller of Accounts, Bhubaneswar, who on verification of the service book of the petitioner raised an objection that the date of birth of the petitioner has been corrected from 02.05.1933 to 27.06.1939 with reference to matriculation certificate issued by the Andhra University. They further contended that the service boo of the petitioner was opened on 02.01.1958 by the then Secretary, District Board, Ganjam and the date of birth of the petitioner was recorded as 02.05.1933. The petitioner had put his signature in the said service book admitting the entries recorded by the then Secretary, District Board, Ganjam as correct. The Secretary must have verified the educational qualification in support of the date of birth of the petitioner. The petitioner passed matriculation examination conducted by Andhra University in the year 1961. After a lapse of about 12 years, i.e., 15.12.1970 the date of birth of the petitioner was changed as per the matriculation certificate issued by Andhra University in the year 1961. Their further case is that the opposite parties conducted an enquiry which revealed that the petitioner was admitted in R.C.M.M.E. School, Gopalpur on 18.04.1947 and left the school on 01.06.1951 after passing Class-VII. From the transfer certificate issued by the then Headmaster R.C.M.M.E. School, Gopalpur and counter signed by the D.I. of Schools, Berhampur it is evident that the date of birth of the petitioner is 02.05.1933. Thereafter, the petitioner took admission in Khallikote Collegiate High School, Berhampur on 18.07.1951. From the extract copy of the admission register produced by the Headmaster of Khallikote Collegiate High School it appeared that the date of birth of petitioner is 02.05.1933. Thereafter, the petitioner took admission in Khallikote Collegiate High School, Berhampur on 18.07.1951. From the extract copy of the admission register produced by the Headmaster of Khallikote Collegiate High School it appeared that the date of birth of petitioner is 02.05.1933. If the date of birth of the petitioner is taken as 27.06.1939, the petitioner was aged about sixteen years six months and twenty-three days on the date of his appointment recorded in the Andhra matriculation certificate is false and fabricated and hence the correction made by the then authorities in the year 1970 is also not maintainable. 4. The Tribunal after hearing the parties and considering the documents available before it disposed of the O.A. with the observation that the date of retirement of the petitioner be treated as 30.06.1991 and his pension and other retiral benefits be released on the basis of the last pay drawn by him on 30.06.1991 but the salary which he had received from 30.06.1991 to 30.06.1997 should not be recovered from him. 5. Shri Rao, learned counsel for the petitioner submitted that the date of birth recorded in the service book of the petitioner was not in his custody and after he produced the Andhra matriculation certificate the date of birth was corrected in the year 1970 as 27.06.1939. He further submitted that when the petitioner was allowed to continue till he attains 58 years treating the date of birth as 27.06.1939, his pension should not have been withheld. Therefore, he prays this Court to direct the opposite parties to finalise the pension treating his date of birth as 27.06.1939. In support of his submission he relies upon the decisions in Gangadhar Magual v. State of Orissa and others, 2010 (II) OLR 592 , Smt. Gelli Dei v. Orissa Lift Irrigation Corporation Ltd. and others, 2007 (II) OLR 320 and Kailash Singh v. State of Bihar and others, 2005 (II) OLR (SC) 375. 6. Mr. Mohapatra, learned counsel appearing for the School & Mass Education Department, on the other hand, submitted that there was no government order regarding correction of the date of birth of the petitioner and the same was made in the year 1970 as per the Andhra matriculation certificate when the petitioner had joined the service in the year 1956 and the service book of the petitioner was opened in the year 1958. He further submitted that if the date of birth of the petitioner is taken as 27.06.1939, the petitioner was aged about 16 years 6 months and as such he could not have entered into government service being under aged. He also submitted that after the pension papers were returned from the Controller of Accounts an enquiry was made and it came to light that the date of birth of the petitioner was rightly recorded as 02.05.1933 at the time when he entered into service and subsequently it was manipulated as 27.06.1939. Therefore, the writ petition is liable to be dismissed. In support of his submission he placed reliance on the judgment of the apex Court in Dr. (Miss) Binapani Dei v. State of Orissa and another, AIR 1971 Ori. 170 . 7. Perused the records and the decisions cited by the parties. Undisputedly the petitioner joined as an untrained Primary School Teacher on 19.01.1956. His service book was opened on 02.01.1958. The date of birth of the petitioner was entered at that time as 02.05.1933. He put his signature in the said service book much after the passing of matriculation examination. The petitioner has passed matriculation examination from Andhra University in the year 1960. Subsequently, the date of birth of the petitioner has been corrected as 27.06.1939 as per Andhra matriculation certificate with one endorsement appears to have been made on 15.02.1970 and other made on 15.02.1972. The petitioner was superannuated on 30.06.1997. An enquiry was conducted and the opposite parties collected the school leaving certificate and the extract of the admission register from two different schools behind the back of the petitioner. The facts of this case are different and distinguishable from the facts of cases cited by the respective parties and therefore are of no utility. 8. In view of the above undisputed facts and since the enquiry was conducted behind the back of the petitioner and the Tribunal relying upon the documents such as school leaving certificate and the extract of the admission register collected during the course of such enquiry passed the impugned order, this Court by following the principles of natural justice sets aside the impugned order of the Tribunal so far as it relates to determination of the date of retirement of the petitioner as 30.06.1991. But, however, the order of the Tribunal that no recovery shall be made from the petitioner is upheld. But, however, the order of the Tribunal that no recovery shall be made from the petitioner is upheld. The Director, Elementary Education, Orissa (Opposite party No.2) is directed to hold a fresh enquiry to determine the actual date of birth and date of retirement of the petitioner. It is made clear that during enquiry opposite party No. 2 shall issue notice to the petitioner by registered post and shall also give him opportunity to adduce rebuttal evidence, if any, and cross-examine all of them who will be examined on behalf of the Department. The petitioner shall produce the original matriculation certificate during the course of enquiry. The enquiry shall be completed within a period of four months from today. On completion of the enquiry and determination of the date of birth and consequently the date of retirement of the petitioner, the pension papers shall be immediately submitted to the Controller of Accounts and within two months thereafter the pension and other retiral benefits shall be released to the petitioner. 9. In the result, the writ petition is allowed in terms of the directions as indicated above. In the circumstances, there will be no order as to costs, I. MAHANTY, J. I agree, Petition allowed.