IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 17426 of 2006 Between: A. Chengalaryulu, S/o. A. Venkatapathi, R/o. H.No.228, Madurlane, Tirupathi, Chittoor Dist. ..... PETITIONER AND 1 The Commissioner of Endowments, Endowments Department, Buggulkunta, Hyderabad. 2 The Regional Joint Commissioner, Multi Zone-II, Endowment Department, Tirupathi, Chittoor Dist. 3 The Executive Officer & Assistant Commissioner, Sri Buggamutt, Tirupati, Chittoor Dist. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of "Writ of Mandamus" declaring the action of the respondents in not paying the leave encashment, group insurance and gratuity which I am entitled to as per A.P. Fundamental Rules and subsidiary Rules by 31.07.2006 as bad arbitrary, contrary to established rules and practice apart from order or orders. Counsel for the Petitioner:MS.M.VIDYAVATHI Counsel for the Respondent No.: GP FOR ENDOWMENTS WRIT PETITION NO : 23109 of 2002 Between: A.Chegalarayulu S/o A.Venkata Pathi Sri.Buggamutt, Tirupathi R/o 228, Madur Lane, Tirupathi, Chittoor Dist. ..... PETITIONER AND 1 The Commissioner of Endowments Endowments Dept., Bugulla Kunta, Hyderabad. 2 The Regional Joint Commissioner Multi Zone II Endowments Dept., Tirupathi. 3 Executive Officer & Asst.Commissioner Sri Buggamutt Tirupathi. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the order of the 5th Respondent vide RC.No.65/2002 dt.7.11.2002 retiring the petitioner from service and order for recovery of the amounts paid from 1.8.2000 as bad, arbitrary and contrary to the provisions of the Constitution of India apart from the violation of principles of natural justice and consequently direct the respondents to allow the petitioner to continue in service till the petitioner date of superannuation as per the entry made in service register i.e. 15.7.2006 as per law and pass. Counsel for the Petitioner:MS.M.VIDYAVATHI Counsel for the Respondent No.: GP FOR ENDOWMENTS The Court made the following : COMMON ORDER: These two writ petitions are filed by A.Chengalarayudu, assailing the action of the respondents in retiring him from service on the forenoon of 7.11.2002 on the ground that he has already crossed the age of 58 years by 31.7.2000. He has also assailed the action of the respondents in not paying the leave encashment, group insurance and gratuity for the period he worked from 31.7.2002 to 31.7.2006. More precisely, the relief sought for in W.P.No.2319 of 2002 is as follows: “The Hon’ble Court may be pleased to suspend the operation of the order of the 3rd respondent vide RC.No.65/2002 dated 7.11.2002 regarding retiring him from service.” The relief sought for in W.P.No.17426 of 2002 is as follows: “To issue a writ, order or direction more particularly one in the nature of “Writ of Mandamus” declaring the action of the respondents in not paying the leave encashment, group insurance and gratuity, which he is entitled to as per A.P. Fundamental Rules and Subsidiary Rules by 31.7.2006 as bad, arbitrary, contrary to established rules and practice apart from violation of Articles 14,16 & 21 of Constitution of India”. The petitioner joined in service as Record Assistant. He got promotion as Junior Assistant on 17.7.1989 and thereafter, Senior Assistant on 09.09.1999. He has been working as Superintendent in the office of Sri Buggamutt, Tirupathi since 10.12.1991 as per the order of the Commissioner, vide proceedings in D.Dis.No.12/55996/99. According to him, his date of birth, as per Service Register is 15.7.1948 and his date of retirement is 15.7.2006. The third respondent-Executive Officer-cum-Assistant Commissioner, Sri Buggamutt, Tirupati, issued a notice, dated 19.9.2002 to the petitioner, calling upon to produce proof of his educational qualifications and connected records. An enquiry was conducted with regard to his date of birth and the enquiry revealed that his date of birth as 15.7.1942. Thereupon, the third respondent issued proceedings, dated 07.11.2002 notifying the date of retirement of the petitioner on 7.11.2002. The proceedings, dated 07.11.2002 read as hereunder: “Sub: Endowments Department-Establishment-Non- Gazetted - Sri A. Chengalarayulu, Superintendent on retirement office of the Bugga Math, Tirupati-Chittoor District-Refund of Salary and other dues to the Mutt-Regarding orders-issued. Ref: RC.No.12/54191/2000 dt.6.11.2002 from the Commissioner, Endowments Dept., A.P., Hyderabad. In pursuance of the orders received in the reference cited, it is hereby ordered to recover the salary paid from 1.8.2000 to 31.10.2002 and the excess amount paid as already ordered due to erroneous fixation of pay and promotion to the cadre of Superintendent from Sri A.Chengalarayulu, Superintendent under orders of Retirement”. As per the proceedings, dated 7.11.2002 the petitioner retired from service on the forenoon of 7.11.2002. The petitioner has filed W.P.No.23109 of 2002 assailing the proceedings dated 7.11.2002 and he has also sought for interim relief suspending the operation of the order the third respondent vide R.C.No.65/2002 dated7.11.21002 pending disposal of W.P. This Court by order, dated 19.11.2002 granted interim relief. The respondent filed vacate stay petition in W.V.M.P.No.3543 of 2002. The vacate stay petition was dismissed on 30.01.2002. The petitioner retired from service on 31.7.2006. Thereafter, he filed W.P.No.17426 of 2006 assailing the action of the respondents in not paying the leave encashment, group insurance and gratuity as per the Andhra Pradesh Fundamental Rules and Subsidiary Rules, for the period from 31.7.2002 to 31.7.2006. The first respondent filed counter affidavit. It is stated in the counter affidavit that the proceedings, dated 07.11.2002 is preceded by an enquiry, wherein the petitioner has participated. Paras 4 and 5 of the counter affidavit in W.P.No.23109 of 2002 read as follows: “Basing on the directions given by the 2nd respondent dated 18.9.2002 the 3rd respondent has issued a notice to the petitioner in RC.No.65 of 2002, dated 19.9.2002 directing the petitioner to place certain connected records in support of his claim that his date of birth is 15.7.1948 as entered in his service register, failing which necessary action would be taken against him. At the time of verification of the service register the 3rd respondent found that the entries made by the petitioner in the service register with regard to fixation of scale of pay are wrong as also his date of birth. In fact the date of birth of petitioner mentioned in the service register is 15.7.1948 which does not tally with the date of birth of T.C. issued by the Head Master in which the petitioner studied basing on the request made by the 2nd respondent. Finally, enquiry was conducted and reasonable opportunity was given to the petitioner and a report was submitted to the 1st respondent who is the Commissioner of Endowments Department in his R.C.No65 of 2002, dated 22.10.2002. In turn the 1st respondent taking into consideration the report of the 3rd respondent, the 1st respondent in his R.C.No.12/54191/02, dated 6.11.2002 directed the 3rd respondent to issue retirement orders immediately to the petitioner and report compliance, and he also further directed the 3rd respondent to recover the salary and other dues paid to the petitioner since 1.8.2000 by initiating criminal action against the petitioner in this regard. Accordingly, in pursuance of the orders of the 1st respondent dated 6.11.2002, the 3rd respondent issued proceedings dated 7.11.2002 in his R.C.No.65 of 2002, retiring the petitioner from service with effect from 7.11.2002 and also further ordered for recovery of salary paid to the petitioner from 1.8.2000 to 31.10.2002”. Heard the learned counsel for the petitioners and the learned Standing Counsel appearing for the respondents. The learned counsel appearing for the petitioner submits that the date of birth as per Service Register is 15.07.1948 and therefore, the date of retirement is 31.7.2006. A further submission has been made by the learned counsel that whatever enquiry conducted with regard to the date of birth of the petitioner, it cannot be given effect to without notice to the petitioner. Per contra, the learned counsel appearing for the respondents submits that the enquiry was conducted in the presence of the petitioner and he was given opportunity and basing on the enquiry report, proceedings came to be issued on 7.11.2002 retiring him from service with effect from 7.11.2002. The counter affidavit filed on behalf of R-1 indicates that the proceeding, dated, 7.11.2002 is preceded by an enquiry, wherein the petitioner has been permitted to participate. It is explicit from the enquiry report that the date of birth of the petitioner is 15.7.1942. The petitioner having participated in the enquiry, cannot be permitted to contend that the correction of date of birth in the Service Register is arbitrary. Since the petitioner continued in service by virtue of the interim orders passed by this court, the said service rendered by him cannot be counted for any purpose. However, the petitioner is not liable to return the salary received by him for the period he worked from 31.07.2002 to 31.7.2006. Accordingly, both the writ petitions are disposed of with the above observations, upholding the proceedings issued by the third respondent, dated 07.11.2002. The petitioner is not liable to return the salary received by him for the period he worked from 31.7.2002 to 31.7.2006. No order as to costs. _________________________ B.SESHASAYANA REDDY J., Dt.20.02.2009 tjs