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2021 Supreme(HP) 376
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Gurdas Ram - Appellant
Versus
State Of Himachal Pradesh - Respondent
Civil Writ Petition No. 7778 of 2019
Decided On : 17-08-2021
Vijay Bhatia, Advocate, Desh Raj Thakur, Advocate, Narender Thakur, Advocate
The determination of the correct date of birth and its impact on the petitioner's retirement and entitlement to basic pay.
Headnote:
Retirement - Regularization of Services - Industrial Employment (Standing Orders) Central Rules, 1946 - [Chowkidar Services] - [Industrial Employment (Standing Orders) Central Rules, 1946] - [Summary: The court discussed the regularization of the petitioner's services and the determination of his date of retirement. The court relied on the Industrial Employment (Standing Orders) Central Rules, 1946 and the Pariwar Register to establish the petitioner's date of birth and dismissed the petition.]
Fact of the Case:
The petitioner challenged the communication that reflected his date of retirement as 30.6.2016 and sought to continue in service until 30.6.2022. The petitioner's services were initially appointed on a part-time basis and later sought conversion to daily waged Chowkidar. The petitioner's date of birth was disputed, and the court had to determine the correct date of birth.
Finding of the Court:
The court found no merit in the petitioner's claim regarding his date of birth and dismissed the petition. The court acknowledged that the petitioner is entitled to the basic pay of the post in question.
Issues: Regularization of services, determination of date of retirement, and dispute over the petitioner's date of birth.
Ratio Decidendi: The court relied on the Industrial Employment (Standing Orders) Central Rules, 1946 and the Pariwar Register to establish the petitioner's date of birth and dismissed the petition.
Final Decision: The petition was dismissed, and the petitioner was entitled to the basic pay of the post in question.
JUDGMENT
Sandeep Sharma, J. - Being aggrieved with the issuance of communication, dated 20.4.2016 (Annexure A-1), issued under the signatures of Deputy Commissioner, Una, District Una, Himachal Pradesh, whereby respondents while regularizing the services of the petitioner as Revenue Chowkidar in Patwar Circle, Rajali Banyala, reflected his date of retirement as 30.6.2016, petitioner approached the erstwhile H.P. Administrate Tribunal by way of Original Application No.3078 of 2016, which now stands transferred to this Court after abolishment of erstwhile H.P. Administrate Tribunal and stands registered as CWPOA No.7778 of 2019, praying therein following reliefs:-
"(i). That the impugned office order dated 20.04.2016(Annexure A-1) may kindly be quashed and set-aside and the respondents may kindly be restrained from retiring the applicant from the services on 30.06.2016.
(ii). That the respondents may kindly be directed to allow the applicant to continue in service till he attains the age of superannuation i.e.30.06.2022.
(iii). That the respondents may further be directed to regularize the services of the applicant w.e.f. 01.04.2012 with all consequential benefits like arrears etc."
2. Certain undisputed facts as emerge from the record are that the petitioner was initially appointed as Chowkidar at Patwar Circle, Rajali Banyala on part time basis in the year 1990. Since, despite petitioner having rendered ten years services on part time basis, respondents failed to convert his part time services into the contract as per the policy, dated 27.2.2004 formulated by the Government of Himachal Pradesh, he filed CWP No.9451 of 2011, titled as Gurdas Ram Vs. State of H.P. & another, seeking therein direction to the respondents to convert his part time services into contract in terms of the policy framed by the Government of Himachal Pradesh. Aforesaid writ petition having been filed by the petitioner came to be decided on 4.11.2011, whereby direction was issued to the second respondent/competent authority to look into the matter and take appropriate action in the case of the petitioner, on verification of facts, in the light of the policy, within a period of four months from the date of production of copy of the judgment.
3. On the basis of aforesaid judgment, petitioner represented to the competent authority for conversion of his services from part time to daily waged Chowkidar, but fact remains that no action, if any, ever came to be taken at the behest of the respondents for good five years after passing of aforesaid judgment by Division Bench of this Court in CWP No.9451 of 2011.
4. Vide order dated 20.4.2016 (Annexure A-1), Deputy Commissioner, Una, District Una, H.P., regularized the services of the petitioner as Revenue Chowkidar in the pay Band of Rs.4900-10680 +1300/- Grade Pay with effect from the date joining was accepted, but since in the aforesaid communication date of retirement of the petitioner was shown to be 30.6.2016, he approached court of law in the instant petition, praying therein to restrain the respondents from retiring him from the service on 30.6.2016. Petitioner claimed in the petition that his date of birth has been shown wrongly as 01.07.1958, whereas he was born in the year 1964. Learned Tribunal below while issuing notice to the respondent-State vide order dated 30.06.2016, restrained the respondents from superannuating the petitioner from the service till further orders and since then on the strength of the afore order passed by learned Tribunal, petitioner is continuing to serve the Department.
5. Since, there was a dispute interse petitioner and the respondents qua Date of Birth of the petitioner, allegedly, respondents No.2 and 3, asked the petitioner to get opinion from the Medical Board with regard to his age. Medical Board comprising of Chief Medical Officer, Una and two more doctors opined that age of the petitioner is 44 to 46 years (Annexure A-2) and as such, petitioner claimed before the authorities t
