Civil Writ Petition No. 9201 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9201 of 2011 Date of decision: 30.05.2011 Ram Phal ...Petitioner Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. S.S. Kharb, Advocate for the petitioner. Ms. Shurti Jain, AAG, Haryana for the State. Mr. Kulvir Narwal, Advocate for respondents No. 2 and 3. RANJIT SINGH J. The petitioner has filed this writ petition for direction and for writ in the nature of certiorari for quashing the action on the part of the respondents retiring the petitioner forcibly 4 years prior to his due date of retirement. Notice of the retirement has been issued to the petitioner through letter dated 05.04.2011, Annexure P-8, which as per the petitioner has not been served upon him but had been pasted on the main notice board. The petitioner claims his date of birth to be 05.08.1955. The petitioner says that he had passed the primary examination and had studied up to 8th class. Thereafter, he had joined the services in Distillery unit as a Daily Wager Security Guard and on 16.12.1984. At that time, he had submitted his original school leaving certificate. On 13.05.1987, the services of the petitioner were Civil Writ Petition No. 9201 of 2011 2 made seasonal permanent when he submitted his joining report. In the year 2000, respondent No. 2 prepared the seniority list of the general and Cane department, showing him at serial No. 35 as a Security Guard. The petitioner was promoted as Security Guard Permanent on 18.09.2008. The petitioner would allege that respondent No. 3 in collusion with the officials of respondent No. 2 has forged and fabricated a document, showing in the strength register at page 162, an entry qua his appointment. As per the petitioner, he had never joined Army and has submitted an affidavit in this regard and as such no question would arise for settling his date of birth on the basis of military service. As per the petitioner, under the garb of forged and fabricated documents, the respondents want to forcibly retire him taking his date of birth to be 20.05.1951. Notice in this regard, referred to above, dated 05.04.2011 was statedly pasted on the main notice board. The petitioner served a legal notice on 14.07.2010. The petitioner had again obtained a duplicate School Leaving Certificate, copy of which has been annexed with the writ petition. The respondents have not replied to the legal notice. The petitioner initially filed the suit, which he says was done inadvertently seeking declaration and permanent injunction. Thereafter, the petitioner filed an application for seeking permission to withdraw the case with liberty to file the present writ petition. The suit was withdrawn. The petitioner has, accordingly, filed the writ petition. Notice of motion has been issued. Counsel for the respondents have filed a short reply on behalf of respondents No. 2 and 3. It is pointed out that benefit of seniority has been availed by Civil Writ Petition No. 9201 of 2011 3 the petitioner alongwith 22 security guards, who were appointed on the same day. The seniority was fixed on the basis of their date of birth, as per the rules. Now a wise method is statedly devised by the petitioner to take this benefit to serve more. It is pointed out that the Civil Court, Panipat has declined the prayer of the petitioner for interim stay. The appeal was filed against the said order, which was also dismissed. While dismissing the appeal, it was observed as under:- “ In view of above facts, vis-a-vis service rules, it appears that there is an unordinary delay at the hands of applicant-employee to move for correction of his date of birth. It was incumbent upon the applicant to resort for making correction in his date of birth within two years from the date of his joining, that is, 13.05.1987. Said statutory period elapsed on 13.05.1989. Even thereafter also there was a delay at the hands of applicant since he did not move for such correction when tentative seniority list was circulated. As such, case of applicant appears to be hit by principle of estoppel also. Hence, applicant does not appear to have prima facie case, balance of convenience in his favour and if ad interim injunction is declined applicant is not likely to suffer any irreparable loss. Due to these reasons, injunction application is dismissed.” Counsel for the petitioner has referred to Annexure P-5 to show that this is a school entry in the register, which has been forged Civil Writ Petition No. 9201 of 2011 4 and now used as tool to order of retirement of the petitioner much before his due date of retirement. As per the petitioner, these are the forged documents and forgery has been done by respondent No. 3. The petitioner has claimed his date of birth, as per school leaving certificate, which is issued on 25.10.2007. The petitioner, thus, has primarily raised disputed question of fact. These facts could have more appropriately gone into by the civil court in the civil suit, which the petitioner had filed. The civil court declined the interim relief to the petitioner against which he filed an appeal, which was also dismissed. Thereafter, the petitioner chose to withdraw the civil suit and has filed this writ petition. When asked about this, the counsel was candid enough to say that civil suit was withdrawn when the interim relief was declined. Such a move cannot be allowed in a fairness, equity and good conscious. It is highly inappropriate mode adopted by the petitioner to invoke the writ jurisdiction once he could not succeed in getting interim relief from civil court. The relief claimed in the civil suit having been declined, the petitioner cannot be permitted to change track and file this writ petition. Since the disputed questions of facts are being raised, these could have more appropriately been gone into in the civil suit. The petitioner is not properly advised to withdraw the civil suit and to file the writ petition once the prayer for interim order was declined. This action on the part of the petitioner cannot be appreciated. The writ petition is dismissed. May 30, 2011 (RANJIT SINGH ) rts JUDGE