IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. (SS) 1125 of 2008 Ummed Singh Negi. …...Petitioner Versus State of Uttarakhand and others ….Respondents Present : Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner. Mr. H.M. Raturi, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. (Oral) Heard Mr. M.C. Kandpal, Sr. Advocate assisted by Mr. S.S. Chaudhary, Advocate for the petitioner and Mr. H.M. Raturi, Standing Counsel for the State of Uttarakhand. Petitioner was initially appointed on daily rate basis in Public Works Department in the erstwhile State of U.P. Subsequently, he was made to work as a work charge employee and thereafter, in the year 1996, he was regularised in service. There were some disputes regarding date of birth of the petitioner. According to the petitioner, his date of birth is 01.08.1953 but according to the Department, petitioner’s date of birth is 05.03.1942, which was placed on service record as such on the basis of documents submitted by the petitioner himself. All the same, the petitioner stated that his initial date of birth was 01.08.1953 and it could not be changed. Vide order dated 25.04.2011, this court directed the Chief Medical Officer for determining the age of the petitioner. The medical report of the petitioner has been placed on record. According to which medical examination, petitioner is between 60-70 years as on 09.05.2011. 2 In other words, the medical report does not put any specific age on the petitioner but it is a broad approximate which does not help this Court in any manner in determining the present dispute. Since the respondents have passed an order on 16.9.2008 considering the date of birth of the petitioner to be 5.3.1942 the petitioner shall be considered to have reached the age of superannuation on 31.3.2002 and is retired from service. Since then, the petitioner has challenged the same. Earlier the petitioner had filed a writ petition being Writ Petition (S/S) No. 1788 of 2007 in which on 20.12.2007 notices were issued to the respondents (prior to passing the order dated 16.9.2008), wherein the learned Single Judge has passed the following orders: “Heard learned counsel for the petitioner. Notices on behalf of respondents are accepted by learned Standing counsel, who prays for and is allowed three weeks’ time to file the counter affidavit. List after three weeks. Meanwhile, if the petitioner is retired, the same shall be subject to the decision of this writ petition.” This writ petition has been dismissed as infructuous on 15.12.2008. From the counter affidavit it appears that initially when the petitioner was engaged in service in the year 1981 though on daily rated basis, his date of birth recorded was 5.3.1942 which has been accepted by the respondent in para 3 (ii). Subsequently when the petitioner’s services were about to be regularized he had to produce a certificate regarding his age for which the petitioner had produced his disability certificate dated 4.2.1993 whereby his age (in the year 1993) was 3 mentioned as 52 years). Thereafter the petitioner submitted another certificate as it is evident from para 3 (v) of the counter affidavit, in the year 1997 which depicted petitioner’s age as 44 years. Subsequently according to the respondents a complaint was made by the daughter-in-law of the petitioner before the authorities that her father in law is actually 72 years of age. On the basis of this report/certificate regarding the age of the petitioner, ultimately an order was passed by the respondent on 16.9.2008 treating the date of birth of the petitioner as 5.3.1942 and the petitioner stands superannuated from service on 31.3.2002. From the averments in the writ petition and the counter affidavit, it is clear that there is no certainty regarding the date of birth of the petitioner. Even the medical examination done on the petitioner does not help in this regard. The main contention though as it has been stated at the bar by Senior Counsel Sri M.C. Kandpal that since the petitioner was regularized in the year 1997 in order to get the pensionary benefit he must have put in at least 10 years of service. The counsel fairly submits that this is his main anxiety as of now. Considering the fact that since the dispute which has been raised regarding the date of birth of the petitioner has been to some extent at least on account of respondents themselves, and more particularly the fact that this dispute has been raised at the fag end of the services of the petitioner, certain benefit needs to be given to the petitioner. This Court on the basis of rival submission made before it is of the view that though the petitioner would be treated to have retired from service with effect from 31.3.2002, but for the work which the petitioner has already put in between 2002 to 2008 the salary during 4 this period shall not be recovered from the petitioner on the principle that the petitioner has already worked for this period. Further considering the very peculiar nature of the case and the facts and circumstances of the case and also on the basis of the consent given by learned Senior Advocate appearing for the petitioner Mr. M.C. Kandpal that he will be satisfied if at least minimum of the pension be given to the petitioner treating 10 years of service as 10 years of “qualifying service” in a regular establishment, it is hereby directed that while calculating the pension of the petitioner it will be done on the basis of calculating 10 years of service in the regular establishment and the same shall be fixed and given to the petitioner along with post retiral benefits. Impugned order dated 16.9.2008 to this extent is hereby set aside. With the aforesaid observations, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 25.07.2011 SKS