B. L. Hansaria. J. —

The petitioner is a highly qualified Chemical Engineer. He has to his credit a Ph. D. degree in Chemical Engineering from London University in addition to some other diplomas such as, Post Graduate Diploma in Fuel Technology, Corporate Member­ship of Institute of Fuel, London. He has done research work not only in London but in other Research Laboratories also, such as, Central Research Laboratory of Mining Association of West Germany; National Laboratory of West Germany and National Laboratory, Gov­ernment of France. Such a highly qualified person who had served this State also for a pretty long time is fighting for his pensionary benefit after he had given his best during his hey days. It was held in D. S. Nakara vs. Union of India, (1983) 1 SCC 305 that pension cannot be regarded as bounty. It is a well earned property and this Court as custodian of the fundamental and legal rights of the people would do all that is possible and admissible to see that a person like the petitioner is not denied the pensionary benefit.

2. The petitioner entered the service of the State as Assistant Professor of Chemistry in the HRH Prince of Wales Institute of Engineering and Technology, Jorhat. This was in 1949. Thereafter, he went to London sometime in 1955 for higher studies specially in Chemical Engineering. This was allowed by the Principal of the Institute. The extra ordinary leave granted for this purpose was however for 2 years but the petitioner overstayed aid returned back only in I960. He then found that his post which he was occupying prior to going on leave had been occupied by somebody else. He made several representations to the Government and ultimately at the intervention of the then Chief Minister Shri B. P. Chaliha, he joined the Regional Research Laboratory at Jorhat. Thereafter, he was brought back to the State service and he joined the Assam Engineering Institute as Head of the Department in the year 1968. Ultimately, he came to be superannuated on 31. 5. 77. If the service is counted only from 1968 onwards, the petitioner rendered about 9 years of service which is short by one year for the purpose of pension inasmuch as for earning pension a minimum service of 10 years is said to be required.

3. The petitioner's case is that he would have served the Govern­ment for the necessary qualifying period if his date of birth would not have been taken as 1. 6, 22 but would have been reckoned as 1.8.22, These two months difference is material because the age of retirement on superannuation was enhanced from 55 years to 58 years with effect from 1.7.77. The Government however did not accept 1.8,22 as the date of birth of the petitioner because as per the Matricu­lation Certificate the date of birth came to be reckoned as 1. 6.22. The petitioner's case is that as per the admission register of the school where he had studied the date of birth was 1.8.22. In this regard the petitioner made a representation on 14. 10. 68 which was not acceded to. Prom the facts enumerated in the judgment of the learned Administrative Tribunal we find that this matter was not pursued further by the petitioner.

4. Sitting as a writ Court we are not inclined to entertain the grievance of the petitioner relating to the date of birth because the employer had acted on the date of birth as recorded in the Matriculation Certificate and the service records which were duly verified by the petitioner. This being the position, we do not think if the petitioner can be given any relief in this regard because of anomaly in the date of birth. But then the other contention advanced by Shri Das has impressed us. The same is that the petitioner had obtained his lien on the post he was holding before he went to London for higher studies. That the petitioner was holding his lien on the post has been averred in para 4 of the writ petition which has not been countered in the affidavit filed on behalf of the res­pondents 2 to 4. We therefore accept the posi

Click Here to Read the rest of this document