IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.340/94 Rameshwar Prasad vs. State & Anr. Date of order : 18/11/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Anupam Agarwal for the petitioner. Shri Hemant Gupta, Addl. Govt. Counsel ) Shri B.K. Sharma ) for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner Rameshwar Prasad who retired from Municipal Board, Dholpur. Shri Anupam Agarwal, learned counsel for the petitioner has made two fold submissions. First submission is that the respondents themselves by order dated 27.1.1988 compulsorily retired the petitioner on the premise that he entered wrong date of birth in his service record. The order of compulsory retirement was challenged by the petitioner in D.B. Civil Writ Petition No.422/88, which was dismissed by the division bench vide its judgement dated 13.9.1988. Learned counsel therefore argued that the validity of that order dated 27.1.1988 having been upheld even by division bench of this Court, the petitioner would be deemed to have retired with effect from the date on which the said order was passed. The respondents have arbitrarily and illegally passed the order dated 15.12.1990 (Annexure-2) directing that the petitioner shall be deemed to have been retired from the services on 31.3.1983. It was argued that the date of birth of the petitioner could not be unilaterally changed by the respondents. According to the petitioner, his actual date of birth is 8.2.1933 and the respondents have illegally treated this date to be 12.3.1928. It was argued that even otherwise the respondents could not retire the petitioner retrospectively with effect from 31.3.1983 because the petitioner has actually served them even beyond 27.1.1988 for few months, albeit on the basis of stay order passed by that Court. Learned counsel argued that the question with regard to the fact whether those who retired on 1.10.87 from the services of the Municipal Board would be entitled to receive pension, is pending consideration before the division bench. The hearing of this petition be deferred till disposal of the matters involving this issue before the division bench. Shri Hemant Gupta, learned Additional Government counsel opposed the writ petition and argued that the order dated 15.12.1990 impugned in the present case was passed on the basis of observations made by the division bench in its order dated 13.9.1988 and keeping in view the fact that on verification of the record of the school from where his character certificate was produced by the petitioner, the correct date of birth of the petitioner was found to be 12.3.1928. The division bench in its judgement categorically observed that on the basis of this date of birth, the petitioner was liable to retire in March, 1983 itself on attaining the age of 55 years because at that time the age of superannuation was 55 years and amendment raising the date of superannuation came in September, 1984. The division bench however observed that there was no justification to further continue the petitioner in services. I have given my anxious consideration to the arguments aforesaid and perused the material on record. Though it is a fact that the respondent initially decided to compulsorily retire the petitioner by order dated 27.1.1988 but validity of that order was challenged by the petitioner himself before the division bench of this Court. A perusal of the aforesaid order would indicate that the communication of that order was also effected with all verification of the record, especially the school from where the petitioner got the character certificate showing his date of birth to be 12.3.1928. The division bench examined validity of that order in the context of the argument made. Arguments that were raised before it were considered by the division bench and it was held that the correct date of birth of petitioner was 12.3.1928. On that basis, the division bench observed that the petitioner on the basis of such date of birth would have retired in March, 1983 on attaining the age of 55 years because at that time the date of superannuation was 55 years and amendment raising the date of superannuation came in September, 1984. The division bench further observed that it was not an order under Order 244(2) of RSR. According to law once an employee attains the age of superannuation he automatically ceases to be in employment on the date he attains the age of superannuation irrespective of any order to the contrary in this regard. In the light of the view taken by the division bench, the consequence that flows therefrom is that Rule 244(2) has no application to such a fact situation. The action of the respondents in directing that the petitioner shall be deemed to have retired from services upon attaining the age of superannuation with effect from 31.3.1983, cannot be faulted. The Single Judge of this Court even otherwise is bound by the observations made and view taken by the division bench as aforesaid. Rule 3 of the Rajasthan Municipalities Employees (Pension) Rules, 1989 inter alia provides that such rule shall apply to all employees holding posts as on 1.10.1987 or thereafter under the control of the Board provided they opt for these rules. In the present case, the date of retirement of the petitioner being 31.3.1983, the petitioner cannot be held entitled to receive pension unless and otherwise, validity of that Rule is not under challenge in the present writ petition. However, at the same time, if division bench of this Court ultimately holds in favour of grant of pension to even those who retired from Municipal Services prior to 1.10.1987, the petitioner shall be at liberty to make a representation to the respondents. His case shall then be considered by the respondents in the like manner and the reliefs granted to the municipal employees whose cases are being considered by the division bench shall be similarly extended to the petitioner. With these observations, the writ petition is disposed of. (MOHAMMAD RAFIQ), J. RS/