1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.824 OF 1994. Dr.Shaikh Mohammadbashir, S/o Shaikh Ismail, Age 60 years, Occ.Medical Practitioner, R/o Nasheman, Chaittanyanagar, Ahmednagar. ... Petitioner. Versus 1. The State of Maharashtra. 2. The Director of Ayurved, Khanna Construction, Dr.Thadani Road, Worli, Bombay-48. 3. The Assistant Director of Ayurved, Sasoon Hospital, Compound, Pune-1. 4. The Ayurved Shastra Seva Mandal Vishram Bagh, Ahmednagar. ... Respondents. ... Mr.A.V.Patil, advocate holding for Mr.V.S.Bedre, advocate for the petitioner. Mr.K.B.Choudhary, Additional Govt. Pleader for the State. Mr.S.L.Bhapkar, advocate for the Respondent No.4. ... 2 CORAM : B.R.GAVAI AND : S.V.GANGAPURWALA,JJ. Date : 10.06.2010. ORAL JUDGMENT (Per B.R.Gavai,J.) 1. The petitioner has filed the present petition for direction to the Respondent Nos.2 to 4 to pay the salary for the period between 1.4.1992 to 30.11.1992. 2. The petitioner was appointed as lecturer in Respondent No.4 College. As per the entry in the service book, the petitioner's date of birth is shown as 17.3.1933. However, the petitioner was served with notice by the Respondent No.4 dt.16.1.1992, thereby informing the petitioner that his services would stand retired on 3l.3.1992. It appears that thereafter the petitioner made a representation to the Respondent No.4 pointing out that since as per the service book, his date of birth is 17.3.1933, his date of retirement would be 3l.3.1993 and not 1990. From the communication ordered by 3 Respondent No.4 dated 30.3.1992, it appears that petitioner was permitted to continue in the service on the condition that the salary of the petitioner would not be the responsibility of the Respondent Management. Subsequently, the petitioner stood voluntarily retired on 30.11.1992. Since the salary for the period 1.4.1990 to 30.11.1992 has not been paid, the petitioner has filed the present petition. 3. Mr.Patil, learned counsel appearing on behalf of the petitioner submits that since the petitioner's date of birth was registered as 17.3.1933, he was entitled to be continued in service till 31.3.1993. He submits that not only the Respondent No.4 has rectified the error of withdrawing the retirement notice dated 16.1.1992 but have also taken the work from the petitioner for the aforesaid period. He, therefore, submits that the Respondents are bound to pay the salary to the petitioner for the period for which he has actually worked. 4. Mr.Bhapkar, learned counsel appearing 4 on behalf of the the Respondent, on the contrary submits that the petitioner can not be permitted to take advantage of his own wrongs. He submitted that the petitioner has incorrectly recorded the date of birth in the service book as 17.3.1933, whereas in fact, it was 1932. He further submits that vide communication dated 30.3.1992, it was made clear that the petitioner was permitted to resume his duties on the condition that in the event the Government does not grant approval, liability for payment of salary would be of Respondent No.4. He submits that since the Respondent Nos.2 and 3 have refused to grant sanction for the same, no fault would be found with the Respondent No.4. 5. Mr.Choudhary, learned Additional Govt. Pleader, on the contrary submits that from the record available with the Respondent No.3 it was noticed that the date of birth of the petitioner as recorded in the School Leaving Certificate was of 1932 and that he had incorrectly recorded the said date as 1933 in the service record. The learned Additional Govt. Pleader further submits 5 that while pay fixation as per UGC scale was being done, the petitioner himself has given information that his date of birth was 1933. It is submitted that a person who has worked beyond period of his superannuation, is not entitled to any salary, much less the Government be burdened with such payment. 6. Undisputedly, the petitioner has served the Respondent from 1.4.1992 to 30.11.1992. Undipsutedly, nobody else was working on the post on which the petitioner was working, during that period. It is nobody's case that the salary has been paid to other employee for the said period. If the petitioner has worked for the aforesaid period, he can not be denied the salary for the aforesaid period. Even otherwise, when the date of birth was shown as 1933 in the service record, the petitioner was entitled to be continued in the service till 1993. If the Respondent No.4 or the Respondent Nos.2 and 3 found that the date of birth was incorrectly recorded in the service book, in law they were required to issue notice to the petitioner prior to effecting the 6 necessary change and only after giving opportunity to the petitioner, the entry in the service record could have been changed. Admittedly, the same had not been done. Since the salary has not been paid by the State of the post which was occupied by the petitioner to any other person, we do not find any additional burden would be cast upon the State if the payment is directed to be made. We find that this requires to be done particularly, when no fault would be found with anyone i.e. the petitioner, management and the State. 7. In that view of the matter, we find that the claim of the petitioner deserves to be granted. We therefore, make Rule absolute by directing the Respondent No.4 to submit fresh bills to the Respondent No.3 towards the salary of the petitioner for the period 1.4.1992 to 30.11.1992. However, in the peculiar facts and circumstances, we are not inclined to direct payment of interest. It is further directed that the petitioner would be deemed to have been retired from service from 3l.11.1992 and all 7 other ancillary benefits including pension and Provident Fund would be calculated on the basis of the same. The Respondent No.4 shall submit the bills within a period of two (2) months from today and on receipt thereof the Respondent Nos.3 and 2 would do the necessary within a period of three (3) months from the receipt of the bills. (S.V.GANGAPURWALA,J.) (B.R.GAVAI,J.) asp/office/wp82494