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2010 Supreme(Gau) 694
GAUHATI HIGH COURT
B.K.Sharma,H.Baruah, JJ.
Tochimong Yimchunger -Appellant
Versus
State of Nagaland -Resopndent
W.A. No. 10(K) of 2009
Decided On : 09-09-2010
Advocate appeared for the Appellant:Ms.Z.Zhimomi, Advocate appeared for the Respondent: Ms.Lucy
Headnote:
CCS (Pension) Rules 1972 - Rule 13 - Pensionary and other retirement benefits - Retired from service - Petitioner had occasion to file instant writ petition when he was released from service purportedly on attaining age of superannuation age of years - Same was done by order For a ready reference - petitioner was enrolled as Constable Village Guard - He was promoted to post of Jamadar and thus aforesaid release order was passed while he was holding promotional post of Jamadar Village Guard - Pursuant to aforesaid release order petitioner was granted leave encashment for days and his case for GIS was sent to Addl. Chief Secretary and Commissioner by letter - It was also intimated that according to petitioner he had joined in Village Guards service and his date of birth and accordingly when he had joined service he was below fifteen years of age - Thereafter Dy. Commandant Village Guard by his letter submitted details of service records of petitioner with reference to his service and confirmed that his date of birth – Held, Above points which have come to our notice will have to be answered by respondents upon hearing petitioner-appellant - It is not possible for us to arrive at any positive findings in absence of stand disclosed by respondents - Matter will have to be decided necessarily on basis of records which have also not been produced before us - However Single Judge has passed impugned judgment and order on basis of said letter which petitioner-appellant has denied to have been voluntarily written and fact that petitioner-appellant would have been under aged when he entered service - While doing so Single Judge did not deal with above aspects of matter - Let entire exercise be carried out by competent authority of respondents as expeditiously as possible but at any rate not later than October - Said decision shall be arrived at after hearing petitioner and on perusal of relevant materials - Appeal disposed of
This writ appeal is directed against the judgment and order dated 20.5.09 passed by the learned Single Judge in WP (C) 175(K)08 dismissing the writ petition and thereby upholding the decision of the respondents that the petitioner (appellant herein) retired from service on attaining the age of superannuation of57yearsw.e.f. 30.6.05. Be it stated here that the retirement age in the State of Nagaland is either 60 years of age or 35 years of service, whichever is earlier. On that basis on completion of 35 years of service, the appellant claims that he was prematurely made to retire w.e.f. 30.6.05 instead of 31.12.2010, on which date he would complete 35 years of service. Be it also stated here that there is no dispute that in the Service Book, the date of birth of the petitioner stands recorded as 15.6.1961 and the same has not been altered till date. The petitioner/ appellant would attain the age of 60 years on that basis on 15.6.2021.
2. The petitioner had occasion to file the instant writ petition when he was released from service w.e.f. 7.10.2005 purportedly on attaining the age of superannuation age of 57 years w.e.f. 30.6.2005. Same was done by order dated 7.10.2005. For a ready reference, the order is quoted below:-
"Government of Nagaland Office of the Deputy Commandant Village
Guards
Kiphire: Nagaland" No. VG/KPE/EST-4/2005-06/1061 -1066
Dated Kiphire, the 7th Oct./2005. RELEASED ORDER
Shri Tochimong, Jamadar (VG) of Zimkiur Village is hereby released from this establishment on 07.10.2005 (AN) on attaining the Superannuation Age of 57 years w.e.f. 30.06.2005. vide Addl. Chief Secretary & Commissioner, Nagaland, Kohima Sig. No. VG-87/97 dated 5.10.05, even his Office Order No. VG-87/97/1825 Dated 29.9.2005.
Sd/-
(Thsandong Yimchunder) Deputy Commissioner, Village Guard."
3. The petitioner was enrolled as Constable Village Guard on 1.1.1976. He was promoted to the post of Jamadar in 2004 and thus the aforesaid release order was passed while he was holding the promotional post of Jamadar, Village Guard.
4. Pursuant to the aforesaid release order, the petitioner was granted leave encashment for 36 days and his case for GIS was sent to the Addl. Chief Secretary and Commissioner by letter dated 2.12.2005.
5. After the aforesaid development, the petitioner sworn an affidavit in which statement was made that in some of the seniority lists, his date of birth was wrongly entered as 1.7.1948 instead of 15.6.61. According to the petitioner he had submitted the said affidavit to the authority. By letter dated 18.9.06 addressed to the Additional Chief Secretary. Nagaland by the Commandant Village Guard. Tuensang, it was intimated that no records relating to appointment of the petitioner were available in the office and that he was promoted to the post of Jamadar w.e.f 12.8.04 after the particular bifurcation. It was also intimated that according to the petitioner he had joined in Village Guards' service on 1.1.1976 and his date of birth is 15.6.1961 and accordingly when he had joined the service, he was below 15 years of age. Thereafter, Dy. Commandant, Village Guard, Kiphire, by his letter dated 29.7.2007 submitted details of service records of the petitioner with reference to his service and confirmed that his date of birth is 15.6.1961.
6. The petitioner filed the writ petition on 20th Oct, 2008 with the following prayer:-
"In the premises aforesaid, it is most respectfully prayed that your Lordships would graciously be pleased to admit this petition, called for records and issue rule calling upon the respondents to show cause(s) as to why a writ in the nature of Certiorari and/or Mandamus and/ or any other appropriate writ or direction should not be granted and upon cause/causes being shown be pleased to make the rule absolute in the following term:
(a) Quash and set-aside the impugned release order bearing No. VG/KPE/EST-4/2005-2006 dated 7th Oct., 05, forcefully releasing the Petitioner from service permanently
