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2020 DIGILAW 280 (UTT)

Darpan Singh Bafila v. State Of Uttarakhand

2020-07-20

SHARAD KUMAR SHARMA

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JUDGMENT Sharad Kumar Sharma, J. - The brief facts of the case are that the petitioner, who admittedly, has got his qualification upto 3rd standard, having passed the same from Government Primary School, Jabulkathal, Berinag, is said to have filed an application for being appointed as an Assistant (Sahyogi), for which, the petitioner contends that since he was Class-III, and that he was holding the requisite qualifications to be appointed as Assistant (Sahyogi), apart from the above qualifications, he claims that he was having the knowledge of reading and writing Hindi. 2. As per the pleadings of the Writ Petition, the petitioner was initially appointed by respondent No. 4, on 8th December, 2008, as Sahyogi and an appointment letter was issued in his favour, being letter No. 1175/Stha0/2008-09 dated 8th December, 2008. As would be apparent from the terms of the letter of appointment that the petitioner was appointed, as a daily wager, on a wages of Rs.100/- per day, it was by way of an arrangement and all the labour laws, as applicable to the said class of recruits, were made applicable. 3. Subsequently, with the passage of time, the daily wage, which was being initially paid to the petitioner at the rate of Rs. 100/- per day was increased to Rs. 300/- per day. On 18th June, 2016, the respondent No. 3, directed the office of respondent No. 4, to send the certificate of all the daily wagers, who were working including the petitioner, to the Head Office, for its verification and in pursuance to the said official correspondence No. 331/Stha0/Daniki Karmachari/2016-17 dated 18th June, 2016, the petitioner submitted an application to the Block Education Officer, Berinag, submitting thereof that since he had passed only 3rd standard, from the Government Primary School, he may be provided with an opportunity to furnish the school leaving certificate. On the said application, the Block Education Officer, Berinag on 11th July, 2016, directed to the Headmaster of the Government Primary School, to issue a transfer certificate in favour of the petitioner, as demanded by him. 4. On the said application, the Block Education Officer, Berinag on 11th July, 2016, directed to the Headmaster of the Government Primary School, to issue a transfer certificate in favour of the petitioner, as demanded by him. 4. In response to the said correspondence made by the Block Education Officer, the Head Master of the Government Primary School, Jabulkathal, Berinag, from where the petitioner alleges that he has completed his 3rd standard, has responded back the correspondence dated 11.07.2016, whereby, it was informed that since the requirement, which has been sought for pertains to the document prior to 1966, the same is not available in the school records, hence expressed his inability to provide those documents, as with the passage of time, it had been weeded out. 5. An employee working in a Government Department, he has to submit his documents with regard to the proof of his date of birth, which can be either from the date as given in the birth certificate issued by the competent authorities or by the school leaving certificate, which could be taken as to be the proof with regard to the date of birth of an employee. The Department of Medical and Family Welfare, under Section 12/7 of the Registration of Birth and Deaths Act, 1969 and the Rules framed thereunder called as the Uttarakhand Registration of Birth and Death Rules, 2003, the Aadhar Card, and the voter ID card. In relation to the official records of the office of respondent No. 4, the date of birth of the petitioner is shown to have been recorded as 1st December, 1965. The petitioner in support thereto to prove his date of birth has also placed reliance on the horoscope, which has been prepared by the local Pandits in order to fortify his date of birth as to be 1st December, 1965. 6. The petitioner in support thereto to prove his date of birth has also placed reliance on the horoscope, which has been prepared by the local Pandits in order to fortify his date of birth as to be 1st December, 1965. 6. Being dissatisfied with the explanation given by the petitioner for recording the date of birth of the petitioner as to be 1st December, 1965, the respondents had issued an official communication dated 3rd August, 2016, addressed to the Branch Manager, Pithoragarh District Cooperative Bank Limited, in which, it was mentioned that the petitioner was called upon to furnish the requisite and relevant documents in order to establish his actual date of birth, because as per the records available with the respondents, it was observed that since the petitioner's date of birth is shown to be 60 years, hence, he would be attaining the age of superannuation, but however, before taking any action of removal of the petitioner from the services, an enquiry was directed to be conducted by the Branch Manager, District Cooperative Bank, Pithoragarh, in relation to the date of birth of the petitioner. 7. The contention of the petitioner is that the respondent No. 4, instead of making any enquiry as directed and intended by the order dated 3rd August, 2016, and without giving any opportunity of hearing to the petitioner to have his say with regard to the aspect of determination of date of birth, without issuance of any show cause notice, and thereby holding him to have attained the age of superannuation, without passing any written order, orally terminated the services of the petitioner on the ground that since he has already attained the age of 60 years, he would superannuate from his services, the petitioner contends that this act is arbitrary and violative of principles of natural justice. 8. 8. The only ground which the petitioner has agitated in the in the Writ Petition, so far it relates to the impugned order dated 3rd August, 2016, it was on the ground that the entire action of stoppage of work w.e.f. 5th August, 2016, would be bad because it happens to be in apparent dereliction of principle of natural justice and also bad from the view point that the determination made pertaining to the age of the petitioner, it was not rightly determined as per law, as he would not attained the age of superannuation on 5th August, 2016, calling upon him to superannuate from the job. 9. The Writ Petition was preferred, the respondents were called upon to file their counter affidavit. The respondent Nos. 3 and 4 have filed the counter affidavit on 17th July, 2017, wherein, the Secretary/General Manager of the District Cooperative Bank Pithoragarh, had submitted that as per the records available, the petitioner had already superannuated from the services after attaining the age and on the basis of the determination being sought for to be made with regard to the date of birth, it is not permissible to be made at this fag end of service, particularly, when there was no material placed on record by the petitioner to substantiate his age in accordance with the correspondence of 3rd August, 2016, when, he was called upon to place document to prove his date of birth. 10. The respondent Nos. 2 and 3 have placed on record the letter No. 1131/Prasha0/Sikayat/2016-17 dated 5th September, 2016, whereby the Secretary / General Manager, has addressed to the District Assistant Registrar, and in the said correspondence thus made on 5th September, 2016, in para 4, it has been recorded that as far as the date of birth of the petitioner is concerned in accordance with the family register and other available document on record, his date of birth apparently seems to be of 12th June, 1956, the copy of which, is annexed with said correspondence and hence, on the basis of the said date of birth, he would be attaining the age of superannuation, and hence, there was no necessity for him to be continued in the job. The relevant part of the said correspondence dated 5th September, 2016, is quoted hereunder : image1 11. The relevant part of the said correspondence dated 5th September, 2016, is quoted hereunder : image1 11. The argument extended by the learned counsel for the petitioner for challenging the impugned action was on the premise that he was not heard prior to the passing of the impugned order is absolutely untenable for the reason being that if the impugned order dated 3rd August, 2016, itself, is taken into consideration for the purposes of determining the correct date of birth, the relevant documents were being called upon from the petitioner in order to enable the petitioner to have a say into the matter, and accordingly, an endorsement was made in the note clause of the impugned correspondence dated 3rd August, 2016, wherein, the petitioner was called upon to place the document of his proof of date of birth. image2 12. From the counter affidavit, which was filed by the respondents, it seems that despite of having received the said correspondence, the petitioner has not made any effort to adduce the document and bring evidence on record before the competent authority to prove his date of birth to be that of 1965, as claimed by him. Since the petitioner himself has not availed the opportunity, which was provided to him, to establish his case before the competent authority, when the enquiry was being conducted, no benefit of his own laxity could be taken by the petitioner, and consequently, the logic assigned by the respondents, which were based upon the document on record holding thereof that in accordance with the family register, which was made available by the petitioner himself, the date of birth since stood recorded to be date of birth as 12th June, 1956, it was appropriately held that petitioner has already attained the age of superannuation and retired him from the services. 13. 13. Since the petitioner himself has not made any effort to place his case to the contrary, the impugned order dated 3rd August, 2016, holding thereof that the petitioner has already attained the age of superannuation, determining the date of birth as to be of 12/06/1956, it was based upon the family register, which was supplied by the petitioner, himself, hence, no error could be pointed out in the impugned action taken by the respondents of dispensing the services of the petitioner, since having attained the age of superannuation, which does not call for any interference by the Writ Court under Article 226 of the constitution. 14. Consequently, the Writ Petition lacks merit and the same is accordingly dismissed.