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2010 Supreme(Ori) 354
2010 (Supp.-II) OLR — 987
A.S. NAIDU, J.
Parikshita Bala...Petitioner
Versus
Orissa Council of Sports & another...Opp. Parties
W.P.(C) No. 14008 of 2005
(Date of Judgment : 24.6.2010)
For Petitioner:M/s. G.K. Mishra & Associates.
For Opp. Party No.1:M/s. Bijaya Ku. Dash & Associates
Headnote:SERVICE - Petitioner challenging his retirement date - Petitioner's claim that in the Service Book his date of birth was 11.6.1938 - Subsequently changed to 11.6.1935 - Recording of the date of birth made in the Service Book has been tampered or overwritten - No endorsement as to when such interpolation or correction was made - Date of birth entered in the Service Book cannot be altered at a later date without giving any opportunity to the petitioner to explain the same - In the present case held, without initiating any proceeding and without conducting any enquiryt or asking the petitioner to show cause, suo motu the date of birth was changed by the authorities - Petitioner a Class IV employee and is a poor man - He was made to retire three years early - Petitioner shall not be entitled to any salary, but then he shall be entitled to service benefits for the period from 1995 to 1998.
Before issuing notice of retirement it was incumbent upon the authorities, who are the custodian of the same, to ascertain as to when and how the date of birth ap¬pearing in the service book was tampered and thereafter take action for retirement. The petitioner has in fact obtained school leaving certificate as well as other materials, revealing that his date of birth in fact was 11th June 1938 and not 11th June 1935. The said documents have been discarded only on the ground that they were obtained at a latter date. The authorities should have taken little more pain to ascertain the correct date of birth of the petitioner specially in view of the fact that the same was tampered in the service book. They lost sight of the fact that the entry in the school records were made long back, only the copy of such recording was obtained after the dispute commenced. (Para - 10)
JUDGMENT
A.S. NAIDU, J. : The petitioner was serving as a watchman in the establishment of Orissa Council of Sports. It is alleged that erroneously the petitioner was made to retire on 30th Janu¬ary 1995 after completion of twenty six years of service. Accord¬ing to the petitioner his date of birth being 11th June 1938, his year of retirement should have been 1998. Being aggrieved by the said action the petitioner has approached this Court, inter alia, praying to direct the opposite party-authorities to pay arrear salaries of the petitioner in the revised scale of pay from 1st July 1995 to 30th June 1998 together with leave salary, gratuity and other retirement benefits including monthly pension with interest @ 9 per cent per annum.
2. The scenario of facts reveal that the petitioner was duly recruited and appointed as a watchman in the year 1969 in the establishment of opposite party No.1, Orissa Council of Sports. He was discharging his duties to the best of his ability and there was no blemish in his service career. On 25.1.1995 opposite party No.1 intimated the petitioner that he is going to retire from service on attaining the age of superannuation w.e.f. 30.6.1995. The petitioner received such information and filed a representation before the authority stating that his date of birth being 11th June 1938, he will attend the age of sixty years on 30th June 1998. Thus, the notice issued intimating the peti¬tioner to retire from service w.e.f. 30th June 1995 is not cor¬rect. The authorities however did not take any steps to rectify their mistake. Consequently, the petitioner approached the Orissa Administrative Tribunal in O.A. No. 549(C)/1995.
3. While matter stood thus, it is alleged, after conduct¬ing preliminary enquiry the authorities were satisfied that the year of birth of the petitioner was 1938 and not 1935. The Minis¬ter, who was the Vice Chairman of Orissa Council of Sports, assured the petitioner that justice shall be done to him. On the basis of such assurance the petitioner withdrew O.A. No. 549(C)/1995 which was pending before the Tribunal. It is alleged that though the petitioner has approached the authorities on several occasions no action was taken, as such he has approached this Court.
4. After receiving notice, a counter affidavit has been filed by opposite party No.1 admitting that the petitioner was serving as a watchman in the establishment of opposite party No.1 and that he retired from service w.e.f. 30th June 1995 on attain¬ing the age of retirement. It is averred that in the service book the date of birth of the petitioner has been mentioned as 11th June 1935. Accordingly, due notice was issued to the petitioner on 25th January 1995 and he was made to retire after observing all paraphernalia. The claim of the petitioner that his date of birth is in fact 11th June 1938 and not 11th June 1935 is stoutly denied. The averment that the petitioner had filed a representa¬tion enclosing school leaving certificate and other documents and prayed to rectify the date of birth is admitted by opposite party No.1 in their counter affidavit. But then, it is stated that on the basis of the materials produced before the authority at the time of recruitment, the date of birth of the petitioner was reflected in the service book as 11th June 1935. The school leaving certificate which the petitioner had produced along with representation was issued fifty years after he left the school and two years after his retirement from service. The certificate issued by the Officer-in-charge, Pattamundai P.S. that the date of birth of the petitioner was 11th June 1938 on the basis of horoscope produced before him, was issued in the year 1993. All the documents having been obtained after the dispute commenced, it is stated the same cannot be relied upon. The averments with regard to the fact that Hon’ble Minister considered his case and a decision was taken to pay him all arrear benefits is stoutly denied in the counter affidavit. I
