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2022 Supreme(Gau) 660
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Manish Choudhury, J.
Kabi Chandra Talukdar - Petitioner
Versus
The State of Assam, Guwahati and ors. – Respondents
W.P.(C) No. 702 of 2018
Decided On : 30-08-2022
Advocate Appeared:
For the Petitioner:Mr. S. Sharma, Advocate
For the Respondent: Mr. P. Nayak, learned Standing Counsel, Mr. A. Hassan, learned Standing Counsel
Point of Law : Merely because of the acceptance of date of birth of its employee in the service register, from holding an enquiry if there exists sufficient reasons for holding such enquiry and refixing his date of birth.
Headnote:
Constitution of India, 1950 - Article 226 - Retire from service – Superannuation - According to petitioner, when he joined the office of respondent no. 3, he submitted all his testimonials/certificates including High School Leaving Certificate [HSLC] Examination pass certificate for purpose of recording his educational qualification, date of birth, etc - It is case of petitioner that in original HSLC Examination pass certificate, his age was recorded as 17 years 3 months as but same was incorrectly recorded - According to petitioner, such incorrect recording of age was due to wrong information given by his parents at time of the petitioner's admission in primary school - It has been contended that petitioner's actual date of birth - By projecting correct picture, petitioner stated to have sworn an affidavit and submitted same before the employer. On the basis of the said affidavit, petitioner's date of birth was entered in his service book - Whether he wants to lead any evidence and asked to give any explanation about the evidence led against him
Finding of Court : Case herein is that employer of employee i.e. petitioner has sought to re-fix date of birth of petitioner by changing the same from, already recorded in the service book of the petitioner a long years earlier - As has been observed above, the State has authority and power to refix date of birth of a Government employee even though a different date was accepted by Government at time of appointment, but same can be done only after an enquiry - Any decision in relation to recovery on ground of alleged overstay in service by petitioner will abide by findings and decision arrived at such enquiry with regard to date of birth of petitioner - It is provided further that in event State respondents take a decision that there would be no further enquiry, then they should process matter of pension and other retirement benefits of petitioner by taking petitioner's date of birth as 02.03.1957 and thereafter upon finalisation, disburse entire dues to petitioner within a period of 2 [two] months from today.
Result : Writ petition stands allowed
JUDGMENT :
In this writ petition preferred under Article 226 of the Constitution of India, the petitioner invoking the extra-ordinary jurisdiction has sought for setting aside and quashing of an order dated 08.12.2016 passed by the respondent no. 4, whereby, the respondent no. 4 by re-fixing the date of superannuation of the petitioner as 31.01.2015 instead of 31.03.2017, as recorded in service book, has made the petitioner to retire from service on superannuation with immediate effect. By the said order, the petitioner was also directed to submit his pension papers for finalization of his pension, D.C.R.G., etc. The petitioner has also assailed a Communication bearing no. Pen-7/F/A-036888/IRRI/364/2016-17 dated 10.03.2017 issued by the respondent no. 6 wherein it is observed that the pay of the petitioner was to be re-fixed in the revised scale of pay on 01.01.1989 @ Rs. 1,165/-per month with the date of next increment as 01.01.1990. The petitioner has further challenged the Gratuity Payment Order [GPO] no. 71223984917 issued vide letter bearing no. PR-7/IRG/7/036888/2017 dated 21.11.2017 wherein it is observed that an amount of Rs. 8,84,078/-would be recovered from the D.C.R.G., arrear and future reliefs of the petitioner.
2. After serving as a casual employee in the office of the respondent no. 4, the petitioner came to be appointed as a Tracer against a transfer vacancy in the office of the respondent no. 3 in the scale of pay of Rs. 470-12-530-E.B.-12-E.B.-590-E.B.-15-680-20-800/-p.m. by an Office Order dated 30.12.1987. On receipt of the Office Order dated 30.12.1987, he joined in the post of Tracer by submitting his joining report on 07.01.1988 before the respondent no. 3. Pursuant to an Office Order dated 09.08.1989, the petitioner joined in the office of the respondent no. 4 on mutual transfer vice one Smti. Champa Borah. As per the Office Order dated 09.08.1989, the petitioner joined the office of the respondent no. 4 with the condition that he could not claim the benefit of his past services in his new place of posting for the purpose of seniority and he would be the junior-most in the office of the respondent no. 4.
3. The case that is laid, in brief, is that, according to the petitioner, when he joined the office of the respondent no. 3 on 07.01.1988, he submitted all his testimonials/certificates including the High School Leaving Certificate [HSLC] Examination pass certificate for the purpose of recording his educational qualification, date of birth, etc. It is the case of the petitioner that in the original HSLC Examination pass certificate, his age was recorded as 17 years 3 months as on 31.03.1972 but the same was incorrectly recorded. According to the petitioner, such incorrect recording of age was due to wrong information given by his parents at the time of the petitioner’s admission in the primary school. It has been contended that the petitioner’s actual date of birth is 02.03.1957. By projecting the correct picture, the petitioner stated to have sworn an affidavit on 02.08.1988 and submitted the same before the employer. On the basis of the said affidavit, the petitioner’s date of birth was entered in his service book as 02.03.1957.
4. I have heard Mr. S. Sharma, learned counsel for the petitioner; Mr. P. Nayak, learned Standing Counsel, Irrigation Department & Finance Department for the respondent nos. 1, 2, 3, 4 & 7; and Mr. A. Hassan, learned Standing Counsel, Accountant General [A & E], Assam for the respondent nos. 5 & 6.
5. Mr. Sharma, learned counsel for the petitioner has submitted that the petitioner continued in his service without any interruption till 06.12.2016. It was on 06.12.2016, the petitioner was suddenly asked by the respondent no. 4 to produce the original HSLC Examination pass certificate issued by the Board of Secondary Education, Assam [SEBA] to verify and decide about the date of superannuation of the petitioner. Having received the letter dated 06.12.2016, the petitioner had applied a
