IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4096 of 2008. Reserved on: 22.11.2010. Decided on:13.12.2010. ____________________________________________________ Bhag Singh. …Petitioner. -Versus- State of H.P. and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. V.B. Verma and Mr. Bhupender Thakur, Advocates. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The material facts necessary for adjudication of this petition are that the petitioner was appointed as Beldar on daily wage basis in the year 1978. He was conferred work charge status w.e.f. 01.01.1994 vide Annexure R-A, dated 31.01.1995. As per condition No. 5 of Annexure R-A, he was required to produce the original certificate regarding his date of birth, i.e., School Leaving Certificate, Certificate from the Secretary of the Gram Panchayat or from Municipal Council concerned, duly attested by the Magistrate 1st Class of the area alongwith attested copy for record in office. It appears that the petitioner could not furnish his actual date of birth at the time of issuance of Annexure R-A. The respondent-State presumed that since he has not produced the date of birth certificate, he has attained the age of 60 years and 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. - 2 - was terminated. He assailed his termination by filing O.A.(M) No. 36 of 1996 before the learned erstwhile Himachal Pradesh Administrative Tribunal. The same was directed to be treated as representation to the F.C.-Cum-Secretary (IPH) on 16th February, 1996. He decided the same on 15.06.1996. The Court, in order to ascertain the date of birth of the petitioner, had also directed the Deputy Commissioner, Mandi to file a supplementary affidavit. He filed the same on 16th October, 2010. 2. Mr. V.B. Verma, learned counsel for the petitioner has strenuously argued that as per the horoscope, the date of birth of his client was 16th September, 1943. He has also referred to the affidavit, Annexure-RC, dated 11.04.1991. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the petitioner could not produce any proof of his date of birth when called upon as per condition No. 5 of Annexure R-A and his termination was valid. He has justified the order issued by the Financial Commissioner-Cum-Secretary (IPH) on 15.06.1996. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. Petitioner started working as daily waged Beldar w.e.f. 1978. He was conferred work charge status w.e.f. 01.01.1994 vide order dated 31.01.1995. As per Annexure R-A, the condition No. 5 was imposed upon the petitioner, which reads thus: “5. He will have to produce the original certificate regarding date of birth i.e. school leaving certificate as from the Secretary of the Gram Panchayat concerned Municipal birth certificate which would be duly - 3 - attested by the Magistrate 1st Class of the area alongwith a attested copy for record in office.” I 6. The petitioner informed the Assistant Engineer, I. & P.H., Sub-Division, Sarkaghat on 23.02.1995 that the record of his date of birth was not available in Gram Panchayat Paonta, hence, he could not produce his date of birth certificate and, therefore, he may be deployed on daily rated basis. 7. Mr. V.B. Verma, learned counsel for the petitioner has strenuously argued that the name of the petitioner was not entered in the birth register. The certificate to this effect was issued on 12th July, 1996. The Financial Commissioner-Cum- Secretary (IPH) has relied upon Annexure R-D, whereby the date of birth of the petitioner has been mentioned as 60 years and according to the note appended thereto, he was 46 years as on 31.03.1978. Petitioner has also relied upon Annexure P-E, dated 16.11.1996, whereby his approximate age has been shown about 58 years. In sequel to the directions issued by this Court, as noticed above, on 28.09.2010, the Deputy Commissioner Mandi has filed the supplementary affidavit. According to paragraph No. 2 of the supplementary affidavit, the record regarding registration of birth and death of Gram Panchayats, Paunta and Fatehpur, Development Block Gopalpur, District Mandi from 1930 to 1945 was perused and no entry of the date of birth of the petitioner was found. However, he has also annexed with the supplementary affidavit a copy of the Parivar register for the year 1994-95, Annexure R-1, wherein the date of birth of the petitioner has been shown as 1933 and of his wife as 1941. - 4 - 8. Mr. V.B. Verma, learned counsel for the petitioner has also relied upon the instructions issued by the State Government vide Annexure P-D with regard to the date of birth. It is mentioned in paragraph No. 7.1 thereof that if the exact date is not known, an approximate date could be given. If the Government servant is unable to state his date of birth but can state the year, or year and month of birth, that could be treated as the date of his birth and if the Government servant is only able to state his approximate age, his date of birth is to be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. 9. Now, what emerges from the material placed on record is that the petitioner claims his date of birth to be 16.09.1943 as per horoscope and he has mentioned this date in his affidavit dated 11.04.1991. No records of birth and death register as per Annexure P-A and supplementary affidavit filed by the Deputy Commissioner, Mandi were available w.e.f. 1930 to 1945. The date of birth shown as per Annexure R-D is 1933. However, age of the petitioner was determined by a duly constituted Medical Board to be about 58 years as per Annexure P-E, dated 16.11.1996. The respondents could not presume that since the petitioner has failed to produce the School Leaving Certificate from the school concerned and birth certificate from the concerned Panchayat, he had attained the age of 60 years. It was necessary for the respondent-State to comply with the instructions issued as per Annexure P-D. His approximate age could be entered into the records at the time of conferment of work charge status to him vide letter dated 31.01.1995. Petitioner was appointed as daily - 5 - waged Beldar in the year 1977. It could be presumed that his age at the relevant time was about 20 years. He was regularized in the year, 1995. Thus, at the most, he had attained the age of 45 years at the time when he was conferred work charge status. According to paragraph No. 7.1(b) of the instruction, the date of birth of the petitioner could be assumed to be the approximate age after deducting the number of year representing his age from his date of appointment to be about 45 years. 10. The material which has been gathered against the petitioner, has not been supplied to him. If the material had been supplied to him, he could give the explanation and could prove his date of birth. No un-due importance could be given to Annexure R-B, dated 23.02.1995, whereby the petitioner had merely stated that he was not in a position to supply the birth certificate. It could be for the simple reason that the petitioner had never gone to the School. In the Gram Panchayat concerned, no record of birth and death was kept between 1930 to 1945 as per the supplementary affidavit filed by the Deputy Commissioner, Mandi. It is in these circumstances that he had agreed to continue to work on daily wage basis. 11. Accordingly, in view of the observations made hereinabove, the petition is disposed of with a direction to the Principal Secretary (I & PH) to examine the matter in depth after hearing the petitioner, in the light of the observations made hereinabove, more particularly, by referring to Annexure P-A, dated 12.07.1996, Annexure P-E, dated 16.11.1996, the supplementary affidavit filed by the Deputy Commissioner, Mandi and the instructions issued vide Annexure P-D, within a period of - 6 - one month from the date of production of a certified copy of this judgment by the petitioner. It is made clear that in case the petitioner’s date of birth is found to be 1943, he shall be entitled to all the consequential benefits, including conferment of work charge status and other retiral benefits, in accordance with law. No costs. (Rajiv Sharma) Judge December 13, 2010. (bhupender) - 7 - `