IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1040 of 2005 Decided on : March 16, 2009 Smt. Vishwa Rani …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. R.B. Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Ms Shilpa Sood, Advocate, vice Ms Ranjana Parmar, Advocate. For the Respondents : Mr. P.K. Sharma, Additional Advocate General, with Mr. Ramesh Thakur, Assistant Advocate General. Per Surit Singh, Judge( Oral ) This writ petition, under Articles 226 and 227 of the Constitution of India, has been filed for judicial review of order dated 13th October, 2004, passed by the then State Administrative Tribunal, whereby Original Application filed by the petitioner for release of extra terminal benefits, in respect of the service of her late husband Makhan Lal Sharma, has been dismissed. 2. Relevant facts may be stated thus. Late Makhan Lal Sharma was the husband of the petitioner. He joined Indian Army in the year 1963 and his date of birth was recorded by the Army authorities, in his service-book, as 2nd February, 1946. It appears that he joined the Army after passing matriculation examination. He was discharged from the Army in the year Whether reporters of the local papers may be allowed to see the judgment? …2… 1970. Thereafter, he was appointed as a Clerk in the Education Department of Himachal Pradesh. He got some promotions, while serving the Education Department. When he was Superintendent Grade-II and posted in Government Senior Secondary School at Nadaun, an enquiry was initiated by the Director (Education) as to the genuineness of the date of birth of said Makhan Lal Sharma, because there was a complaint that his date of birth was 2nd February, 1940 and not 2nd February, 1946, as shown in the service records maintained both by the Indian Army and the Education Department of Himachal Pradesh. Admittedly, the enquiry was being held behind the back of Makhan Lal Sharma. In other words, he was not made party to the enquiry, though he was called upon to produce certain papers, like his middle and matriculation examination certificates. Enquiry report was submitted on 13th October, 2001 and on the same day Makhan Lal Sharma died. As per enquiry report, there had been interpolation in the record maintained by the schools, where Makhan Lal Sharma studied and through that interpolation his year of birth had been changed from 1940 to 1946. It was only on the basis of this alleged interpolation in the records maintained by the schools that the Enquiry Officer reported that date of birth of Makhan Lal Sharma was 2nd February, 1940 and not 2nd February, 1946, as reflected in the records. 3. After the death of Makhan Lal Sharma, the present writ petitioner, being his widow, applied for terminal benefits, like death-cum-retirement gratuity, family pension and ex-gratia …3… amount, etc. The Department made the payment of death-cum- retirement gratuity and also sanctioned family pension, treating the deceased (Makhan Lal Sharma) having superannuated before his death, i.e. on 28th February, 1998, on completing the age of 58. 4. Aggrieved by the action of the respondents and the Education Department, writ petitioner approached the then State Administrative Tribunal, by filing Original Application. She sought issuance of direction to the respondents to treat the deceased in service on the date of his death, i.e. 13th October, 2001, and to pay the death-cum-retirement gratuity, ex-gratia amount and also to grant family pension accordingly. Learned Tribunal has dismissed the Original Application, mainly on the ground that the deceased, by playing fraud, got his date of birth changed in the records of the schools he studied in and that since fraud vitiates everything, petitioner is not entitled to any relief. It is this order, judicial review of which has been sought, by means of the present writ petition. 5. We have heard the learned Additional Advocate General and the Advocate appearing vice counsel for the petitioner and also gone through the record. 6. For a number of reasons, petitioner cannot be denied the terminal benefits, due on account of the service rendered by her husband Makhan Lal Sharma to the respondents. The first and the foremost reason is that the enquiry was conducted without associating Makhan Lal Sharma and thus without affording him an opportunity to defend himself at the enquiry. …4… This was a sort of preliminary enquiry and regular enquiry was yet to be conducted, on the basis of findings of preliminary enquiry, but before that could have been done Makhan Lal Sharma expired. Moreover, the fact, which was established in the course of the enquiry, was that there had been interpolation in the records maintained by the schools, as regards the date of birth of deceased Makhan Lal Sharma. Enquiry was confined only to the records of the schools. Enquiry Officer did not make any further probe to find out as to what was the actual date of birth of Makhan Lal Sharma. Simply for the reason that there had been interpolation in the school records, with regard to the year of birth of Makhan Lal Sharma, it could not have been said that he was born in a year other than that mentioned in his service-books, maintained both by the Indian Army and the Education Department of Himachal Pradesh. Entries in the service-books were supposed to have been made by the Army and the Education Department, on the basis of some documents. Normally entry in the service-book, with respect to date of birth, is made on the basis of matriculation examination certificate, which is considered to be almost conclusive proof of date of birth. 7. As a matter of fact, from the fact that Makhan Lal Sharma passed matriculation examination in the year 1962 or 1963, it does appear that he was born in the year 1946 and not 1940. Learned Tribunal has placed reliance upon a transfer certificate issued on 31st October, 1962, per which Makhan Lal Sharma was a student of 10th class on that date, meaning …5… thereby that he was 16 years old, when studying in 10th Class if his year of birth was 1946. Normally, children are got admitted to the schools, by their parents at the age of five or six. The fact that Makhan Lal Sharma was student of 10th standard in 1962 suggests that at the time of admission his age was equal to the normal age at which children are admitted to the school. Had his year of birth been 1940, that would have meant that he was admitted to the school at the age of 12, which is not a common thing. There is every likelihood that at the time of admission to the school, his father, may be owing to illiteracy or some other mistake, happened to get his year of birth recorded as 1940, instead of 1946, or it is also quite likely that on account of some clerical mistake the school authorities recorded the year of birth as 1940, instead of 1946 and the mistake was rectified at the time Makhan Lal Sharma filled in the form for appearing in Matriculation Examination. 8. In any case, as noticed hereinabove, merely on the basis of alleged interpolation in the school record, it cannot be conclusively said that Makhan Lal Sharma’s year of birth was 1940, especially when in his service-books, prepared both by the Indian Army and the Education Department of Himachal Pradesh, his date of birth is recorded as 2nd February, 1946, supposedly on the basis of matriculation examination certificate. 9. For the foregoing reasons, we allow this writ petition, set aside the order dated 13th October, 2004, of the then State Administrative Tribunal, and direct the respondents to grant all terminal benefits to the petitioner, treating her husband late …6… Makhan Lal Sharma to be in service on the date of his death, i.e. 13th October, 2001 and his date of birth as 2nd February, 1946. The direction given hereby be complied with by 30th June, 2009. ( R.B. Misra ), J. March 16, 2009(sd) ( Surjit Singh ), J.