State of H. P. v. Raj Kamal (deceased through LRs. )
2016-04-13
MANSOOR AHMAD MIR, SANDEEP SHARMA
body2016
DigiLaw.ai
JUDGMENT : Mansoor Ahmad Mir, J. By the medium of this appeal, the appellants have challenged the judgment and order, dated 23rd August, 2010, passed by a learned Single Judge of this Court in CWP(T) No.6109 of 2008, titled Raj Kamal vs. State of H.P. and others, whereby the writ petition filed by the petitioner came to be allowed, (for short, the impugned judgment). The operative portion of the judgment is reproduced hereinbelow: “(1) the petitioner shall be treated to be in service till 5.12.1998 and his retirement will be w.e.f. the said date only. (2) No recovery shall be made from the petitioner by treating him to have retired on 31.1.1997 since there can be no retrospective retirement of an employee. (3) The petitioner shall be entitled to pension if otherwise admissible under the Rules w.e.f. 6.12.1998. (4) If pension and other retiral dues have not been paid to the petitioner the same shall be worked out and paid to him on or before 31.12.2010 along with interest @ 6% p.a. failing which the respondents shall be liable to pay interest @ 12% per annum from the date of the amount fell due till payment thereof.” 2. The dispute involved in the writ petition relates to the date of birth of the writ petitioner. It was claimed by the writ petitioner, in the writ petition, that his actual date of birth was 15th January, 1949, however, the Department had wrongly taken his date of birth as 15th January, 1939. It was further claimed that the Department had wrongly retired him from service with retrospective effect from 31st January, 1997, vide order dated 5th December, 1998. 3. The writ Court, after examining the rival contentions and the service book of the writ petitioner, held that there was interpolation in the service book of the writ petitioner, in the column of date of birth. Therefore, it was held that the date of birth of the petitioner was 31st January, 1939 and on that basis, the petitioner, on completion of the age of superannuation, was to retire on 31st January, 1997. However, the petitioner remained in service till the passing of the order, dated 5th December, 1998, whereby he was retired with retrospective effect from 31st January, 1997. 4.
However, the petitioner remained in service till the passing of the order, dated 5th December, 1998, whereby he was retired with retrospective effect from 31st January, 1997. 4. The writ petitioner has not questioned the impugned judgment in so far as it relates to the findings recorded by the writ Court qua interpolation in the service record. Thus, the said findings have attained finality. 5. Feeling aggrieved, the appellants/writ respondents have questioned the impugned judgment, on the grounds taken in the memo of the Letters Patent Appeal. 6. The writ Court has categorically recorded in the impugned judgment that there was interpolation in the date of birth, in the service book of the writ petitioner. Thus, the question arises is whether the writ petitioner can be allowed to reap the fruits of his own faults. 7. Keeping in view the fact that the petitioner has worked even after the date of his actual retirement (31st January, 1997) till the making of the order, dated 5th December, 1998, therefore, it would not be proper to effect recovery from him for the said period. However, it is made clear that the writ petitioner will be entitled to all service benefits on the last pay drawn as on 31st January, 1997, being his actual date of retirement. 8. During the pendency of the present appeal, the original writ petitioner has passed away and the present appeal is being pursued by his legal representatives. 9. At this stage, the learned counsel for the petitioner stated that all retiral benefits have not been released in favour of the petitioner and prayed that the respondents be directed to pay the interest on the delayed payment. It appears that payment was delayed because of the conduct of the petitioner himself, as discussed hereinabove, however, in the interest of justice, we deem it proper to grant interest at the rate of 6% per annum on the delayed payment, if any, from the date of the impugned judgment till realization. The benefits, as above, be released in favour the legal representatives of the writ petitioner, as per the Rules occupying the field, expeditiously. 10. The appeal is disposed of accordingly.