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2014 DIGILAW 222 (JHR)

Gazi Safdar Hayat Khan v. State of Jharkhand

2014-02-10

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
ORDER The present appeal is preferred against the order dated 11.09.2012 passed in W.P. (S) No. 4864 of 2012 whereby the writ petition filed by the appellant was dismissed mainly on the ground of latches and inordinate unexplained delay. 2. The appellant was recruited as Constable in the Department of Police in the year 1968 i.e. on 7.11.1968. After joining, the appellant passed the matriculation examination in the year 1970, wherein his date of birth was recorded as 7.06.1950. Thereafter, the appellant was selected as Writer Constable in the year 1974-75. The appellant was promoted as Assistant Sub-Inspector on 1.4.1981 and finally he was promoted on the post of Sub-Inspector on 20.08.1994. 3. By Memo No. 4894 dated 24.12.2009 (Annexure 11), the appellant was informed that as per his date of birth 7.6.1950, as mentioned in the service book, he is going to retire on 30.6.2010. However, an audit objection was raised regarding date of birth of the appellant and it was alleged that date of birth of the appellant was manipulated and audit objection was raised that his date of birth dated 7.6.1950 was stated to be a wrong entry. Based on the said audit objection, vide Annexure-2, dated 18.5.2010, the appellant was suspended on the ground that he had manipulated his date of birth. Vide Memo No. 2228 dated 30.5.2010 (Annexure 3) charges were framed against the appellant. Vide Memo No. 2268 dated 31.5.2010 (Annexure 4), the appellant was ordered to be retired from 30.11.2007 by considering his age as 21 years as on 7.11.1968 when the appellant entered into service. By Memo No. 3818 dated 25.6.2012 (Annexure 13), an order was passed for recovery of the amount paid to the appellant between the period December, 2007 and 30th April, 2010 and it was also ordered that recovery would be made form Gratuity/ Provident Fund/ Leave Encashment and other retiral benefits of the appellants. 4. Being aggrieved by the order under which the appellant was made to retire with effect from 30.11.2007, the appellant has filed W.P.(S) No. 4864 of 2012 seeking direction that his correct date of birth be treated as 7.6.1950. 5. 4. Being aggrieved by the order under which the appellant was made to retire with effect from 30.11.2007, the appellant has filed W.P.(S) No. 4864 of 2012 seeking direction that his correct date of birth be treated as 7.6.1950. 5. Pointing out that the order dated 31.5.2010 in and by which the appellant was ordered to be retired with effect from 30.11.2007 was challenged after two years in the year 2012, the learned Single Judge dismissed the writ petition on the principle of latches and inordinate unexplained delay. 6. Being aggrieved by the dismissal of the writ petition, being W.P.(S) No. 4864 of 2012, the appellant has filed this Letters Patent Appeal. 7. We have heard Mr. Awanish R. Mishra, learned counsel appearing for the appellant. We have also heard learned counsel appearing for the State of Jharkhand and Mr. S. Srivastava, for the Accountant General of Jharkhand. 8. By perusal of Annexure-2 dated 18.05.2010, it is seen that at the time when the appellant entered the service, his date of birth as on 7.11.1968 was recorded as 21 years, which means that the appellant's date of birth was then recorded as 1947. Subsequently when the appellant passed the matriculation examination in 1970, he has given his date of birth as 7.6.1950 and he has produced the matriculation certificate stating that his date of birth is 7.6.1950. If the matriculation certificate is to be taken into account, when the appellant entered into service in 1968, he could not have completed the 21 years of age. Such change in the date of birth as 7.6.1950 is not supported by any authentic document. The said date of birth 7.6.1950 also does not tally with the age of the appellant recorded in the Service Register when he entered the service. 9. As pointed out by learned counsel for the respondent nos. 1 and 2, the appellant has not produced any document to show that his date of birth is 7.6.1950. In this regard, learned counsel appearing for the State has drawn our attention to letter dated 9.4.2011 of Headmaster, Raj Senior Secondary School, Darbhanga, (Annexure-8 series) whereby the School has intimated the Superintendent of Police, Hazaribagh that the concerned record of the appellant was not available in the school. In this regard, learned counsel appearing for the State has drawn our attention to letter dated 9.4.2011 of Headmaster, Raj Senior Secondary School, Darbhanga, (Annexure-8 series) whereby the School has intimated the Superintendent of Police, Hazaribagh that the concerned record of the appellant was not available in the school. Learned counsel for the State further stated that the appellant himself had vide letter dated 19.7.2010 (Annexure C filed along with counter affidavit) given statement in writing accepting that his date of retirement may be taken as 30.11.2007. 10. In these facts and circumstances, when the appellant has not produced any documentary evidence to show that his correct date of birth is 7.6.1950 before the authority, the contention of the appellant that he was forcibly retired on 30.11.2007 cannot be accepted. Equally there is no merit in the contention of the appellant that the correct date of birth to be treated as 7.6.1950.Since the appellant himself gave statement in writing that his date of retirement be taken 30.11.2007 the appellant cannot contend that his age be taken as 7.6.1950. We do not find any error in the impugned order (Annexure 4 dated 31.5.2010). 11. In so far as the order of recovery dated 24.6.2012 (Annexure 13) ordering recovery of the salary for the period between December, 2007 and 30th April, 2010, learned counsel for the appellant submitted that the appellant had worked during the said period and therefore, the appellant is entitled for the salary and sought for appropriate direction to the respondents not to deduct the salary amount for the said period between December, 2007and April, 2010. In this regard, learned counsel for the appellant has also drawn our attention to the appellant's representation dated 26.5.2012 (Annexure 10) whereby he has prayed for payment of gratuity etc. 12. Even though the order of recovery is now not under challenge before this Court, considering the fact that the appellant had worked for the period between December, 2007 and April, 2010, we deem it appropriate that suitable direction be issued to respondent no. 2. 13. We direct the 2nd respondent to consider the representation of the appellant dated 25.6.2012 sympathetically keeping in view that he had worked between December, 2007 and April, 2010. 14. With the above directions and observations, this Letters Patent Appeal is disposed of.