IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10623 of 2000 For Approval and Signature: Hon'ble MR.JUSTICE D.C.SRIVASTAVA sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- RAMANLAL RANCHHODJI NAIK Versus DISTRICT EDUCATION OFFICER (PRIMARY) -------------------------------------------------------------- Appearance: MR CJ VIN for Petitioner RULE SERVED for Respondent No. 1 Shri R.C.Kodekar, A.G.P. for Respondent No. 2, 3 -------------------------------------------------------------- CORAM : MR.JUSTICE D.C.SRIVASTAVA Date of decision: 18/01/2001 ORAL JUDGEMENT 1. The facts giving rise to this petition briefly are as under : The petitioner joined services as Primary Teacher with the respondents on 10.1.1956 and served in that capacity till he was retired in 1987. The allegation of the petitioner is that his date of birth was incorrectly recorded as 1.2.1929 in his service record. Right from the date of joining he was making representation that his date of birth has been incorrectly recorded in his service record and in place of 1.2.1929 the correct date of birth as 20.9.1932 be recorded. The allegation of the petitioner is that the correspondence was going on for a long period of about 30 years. Still no action was taken and the petitioner retired in 1987. Special Civil Application No.6551 of 1986 was filed by the petitioner raising these grievances which was decided by this Court on 20.4.1996. The following order was passed in that writ petition : "In the result this writ petition succeeds and the same is allowed. The order Annexure : K dated 30th October, 1986 of the Taluka Development Officer, Gandevi, is quashed and set aside. The respondents are directed to consider the case for correction of the date of birth of the petitioner and pass appropriate orders within a period of two months from the date of receipt of certified copy of this order. The petitioner shall be entitled to all the consequential benefits flowing from correction of his date of birth. Rule made absolute in the aforesaid terms. No order as to costs." 2. Inspite of the above direction the date of birth of the petitioner was not corrected by the respondents and as such consequential benefits were also not given to him. Since the petitioner was made to retire on the basis of incorrect date of birth recorded in his service record and further because the order of this court quoted above was not complied with he made representation to the respondent to comply with the order of this Court. That was also not complied with. As such contempt proceedings were initiated by moving Misc. Civil Application No.401 of 1996. On 31.3.1997 the said contempt petition was withdrawn. Thereafter the petitioner filed another Special Civil Application No.7670 of 1997 before this Court which was dismissed as withdrawn with following observations : "Mr.N.R.Tandel, Ld. Advocate seeks to withdraw this petition with a view to enable the petitioner to move an appropriate representation with regard to consequential benefits as noted by this Court in its judgment dtd.20.4.1996 in Special Civil Application No.6557 of 1986 (Coram : S. K. Keshote, J.) and order dated 9.1.1997 passed by the concerned officer of the respondents. Permission to withdraw this petition granted. Disposed of accordingly." 3. The petitioner made another representation to the respondents for complying with the earlier order of this Court in Special Civil Application No.6551 of 1986, but again nothing was done by the respondents in the matter. It is stated that the respondents corrected the date of birth of the petitioner subsequently but did not give consequential benefits as ordered by this Court in Special Civil Application No.6551 of 1986. Monetary benefits were refused after correction of date of birth on the ground that since the petitioner had retired and he did not work he is not entitled to any monetary benefits on the principles of "No work No Pay". The grievance of the petitioner is that the principle of "No work No Pay" could not apply in this case because the petitioner did not voluntarily retire but he was made to retire as a consequence of incorrect recording of petitioner's date of birth in his service record. Accordingly he has prayed for a writ of mandamus firstly directing the respondents to act in true spirit in obeying the orders of this Court passed earlier and also to consider the latest representation of the petitioner which is pending. 4. No counter Affidavit has been filed by the respondents. As such Shri C.J.Vin for the petitioner and Shri R.C.Kodekar, learned A.G.P. for the respondents No.2 & 3 have been heard. None appeared on behalf of the respondent No.1 though this respondent is served. 5. In the absence of counter Affidavit the factual allegation made by the petitioner in his petition has to be accepted as correct. If the order of this Court passed in Special Civil Application No.6551 of 1986 is considered it follows that the respondents were directed to consider the case of correction of date of birth of the petitioner and pass appropriate orders within a period of two months from the date of receipt of certified copy of this order. This portion of the direction was complied with because the petitioner admits that his date of birth was subsequently corrected in his service record. Further observation was made by this Court in that very Special Civil Application that the petitioner shall be entitled to all the consequential benefits flowing from the correction of his date of birth. This direction was unnecessarily interpreted in its own manner by the respondents. It was clear direction that in case the date of birth of the petitioner is corrected by the respondents the petitioner shall be entitled to all the consequential benefits flowing from the correction of his date of birth. The principle of "No work No Pay" was unnecessarily introduced and applied by the respondent which is nothing but a hair spliting tendency in examining and complying the order of this Court. It was not a case where the petitioner himself abstained from the work or voluntarily retired. He was made to retire on account of incorrect entry of his date of birth and as such he is entitled to all the consequential benefits irrespective of fact that he did not work during the disputed period. Inaction of the respondents in sitting over the latest representation of the petitioner is also hardly appreciated. The representation should have been considered and allowed in view of clear direction of this Court in Special Civil Application No.6551 of 1986. 6. For the reasons stated above the petition succeeds and is hereby allowed. The respondents are directed to grant all consequential monetary benefits to the petitioner in consequence of correction of his date of birth in service record. The principle of "No work No pay" cannot be applied by the respondents. There shall be no order as to costs. The amount found due to the petitioner after considering the calculation submitted by him in latest representation and also after considering the calculation made by the office of the respondent No.1 (the net amount due) shall be paid to the petitioner within a period of two months from today. sd/- Date : January 18, 2001 ( D. C. Srivastava, J. ) *sas*