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2013 DIGILAW 47 (HP)

GULABA RAM v. STATE OF HP

2013-01-08

DEEPAK GUPTA, KULDIP SINGH

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JUDGEMENT DEEPAK GUPTA, J. 1. THIS appeal is directed against the judgment dated 6.3.2009 passed by a learned Single Judge of this Court in CWP(T) No. 3395 of 2008. 2. BRIEFLY stated the facts of the case are that the appellant, hereinafter referred to as the petitioner, was working as peon in the Education Department of the Himachal Pradesh. When he was granted employment his year of birth in the official record was recorded as 1940. In such eventuality the petitioner was to retire in the year 2000. It appears that some complaint was received in the office of District Education Office, Bilaspur that the date of birth as given by the petitioner was false. It was also averred that as per the record of the Gram Panchayat his date of birth was 1.7.1934. The complaint was forwarded to the Director of Education, H.P. Shimla and on scrutinizing the case vide letter dated 22.4.1994 it was directed that Gulaba Ram be retired from service on the basis of date of birth recorded in the Gram Panchayat record and consequently he was ordered to be retired w.e.f. 30.6.1994 on attaining the age of superannuation i.e. 60 years. The petitioner represented against this order and filed O.A. No. 684 of 1994, which was directed to be taken as representation and in the meantime the petitioner was permitted to continue to work as peon. It appears that before the departmental authorities the petitioner claimed that his date of birth is 24.3.1945 and therefore, he was entitled to be retired on 31.3.2005. The representation was disposed of by the Additional Secretary (Education) on the ground that since the petitioner was unable to produce any certificate that his date of birth was 25.3.1945 reliance should be placed on the certificate issued by the Gram Panchayat, Patta on 22.3.1992 wherein the year of birth was shown as 1934. The Additional Secretary held that the Panchayat record showing the year of birth to be 1940 was wrong and incorrect. The representation was rejected. 3. THEREAFTER the petitioner filed O.A. No. 1019 of 1996 before the H.P. State Administrative Tribunal which on abolition of the Tribunal vide notification issued by the Central Government was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008. The original application was registered as CWP (T) No. 3395 of 2008. The original application was registered as CWP (T) No. 3395 of 2008. The learned Single Judge dismissed the petition mainly on the ground that the petitioner himself is not sure of his date of birth. In the earlier O.A he had claimed his date of birth to be 24.3.1945 but this was rejected and now he claimed that his date of year was 1938. On this ground alone the petition was rejected. 4. IT may be true that the petitioner was not aware of his exact date of birth or may have even taken a false plea with regard to his date of birth but the fact is that even the State was not sure what is the exact date of birth of the petitioner. The record relied upon by the Additional Secretary is only a certificate issued on the basis of the Pariwar Register, which has no sanctity in the eyes of law. Now, the petitioner has annexed another certificate that a male child was born to Dhani Ram on 9.2.1994 Vikrami, which according to the petitioner corresponds to the year 1938. The learned Single Judge lost sight of the fact that initially in the service record of the petitioner his date of birth was shown to be 1940. This should have been presumed to be correct unless the State itself placed on record cogent evidence to show that he was not born in the year 1940. Both the years i.e. 1940 as originally claimed by the petitioner and the year 1934 as claimed by the State are based on entries in the Pariwar Register, which have virtually no value in the eyes of law. Now, the petitioner wants to produce a certificate issued by the Medical Officer that he was born in the year 1938. It is not for the Court to decide such a contentious matter. The petitioner in any event has attained the age of superannuation. We are of the view that the proper course would be to permit both the parties to lead evidence and establish their claims. 5. It is not for the Court to decide such a contentious matter. The petitioner in any event has attained the age of superannuation. We are of the view that the proper course would be to permit both the parties to lead evidence and establish their claims. 5. THEREFORE, we allow the appeal, set-aside the order of the learned Single Judge and dispose of the petition with a direction to the Director Elementary Education to decide the case with regard to the date of birth of the petitioner within three months from the date of production of the certified copy of this judgment before him. He shall before deciding the matter permit both the petitioner as well as the State to produce documents and lead evidence in support of their claims. The appeal is disposed of in the aforesaid terms. No order as to costs.