IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP(T) No. 16633 of 2008 Date of decision: 01.12.2010 ________________________________________________________________ Ram Lal. .....Petitioner. Versus The State of H.P. & another. .....Respondents. Coram The Hon'ble Mr. Justice V.K. Sharma, J. 1 Whether approved for reporting? Yes. ________________________________________________________________ For the petitioner: Mr. V.D. Khidta, Advocate. For the respondents: Mr. Anil Jaswal, Deputy Advocate General for respondents No. 1 and 2. None for respondent No. 3. V.K. Sharma, J (Oral). The petitioner had initially joined the employment of respondents No. 1 and 2, particularly respondent No. 2, as Patwari in April, 1962 and was promoted as Kanungo in the year 1981 and had retired as such on 31.10.1998. According to him, at the time of his initial appointment as Patwari he had submitted age proof on the basis of which his date of birth was recorded in the service book as 10.10.1941. However, later on due to some error it was taken to be 10.10.1940. Thus, whereas in fact he was to retire on 31.10.1999, he was wrongly retired from service on 31.10.1998. On 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ...2... these averments the petition has been filed on the following prayers:: “7(i) That the impugned rejection/order dated 1.9.98 (Annexure A-13) and order dated 5.9.98 (Annexure A-14) whereby the applicant has been informed of his date of retirement i.e. 31.10.98 may kindly be quashed and set-aside. (ii) That the respondent is directed to consider the date of birth of applicant as 10.10.1941 instead of 10.10.1940 and retire the applicant accordingly on and w.e.f. 31.10.1999. (iii) That in the alternative if any wrong entry of date of birth has been made in the service record of applicant the same may be directed to be corrected as 10.10.1941. (iv) That the respondents be directed to allow the applicant to continue work and hold the post till 31.10.99 with all consequential financial and other benefits.” 2. Respondents No. 1 and 2 have taken the following stand vide paras 6(i), (iv) and (vi): “6(i) Contents of this para denied. It is submitted that there is no record regarding passing of 5th class examination in this office, nor the applicant has produced such type of certificate in this office as the applicant was originally appointed as Patwari in District Chamba. It is also denied that applicant has passed Middle Standard examination from the H.P. Territorial Council held in February 1960 under Roll No. 3297 from Govt. Boys Hr. Secondary School Chamba H.P. as the applicant has not produced original certificate issued by the H.P. Territorial Council whereas the applicant has produced a certificate issued by the Principal Boys Hr. Secondary School Chamba which has also been pasted on the Service Book issued only on 23.07.1983 i.e. after a lapse of about 21 years from the acceptance of patwari candidate. (iv) It is admitted that on 14.11.1984, revised tentative seniority list of Patwaries working in Lahaul Spiti district was issued wherein date of birth of applicant was shown 10.10.1940 on the ...3... basis of Patwar candidate register and service book maintained in Chamba District. The seniority lists were issued time to time i.e. for the year 1980-81, 83-84, 88-89, 96-97 and so on and the date of birth of official has been correctly shown 10.10.1940 based on records i.e. service book and copy of Patwar Candidate Register. (vi) Para admitted to the extent that final seniority list of Kanungos of Lahaul Spiti District up to 31.03.1997 was issued wherein date of birth of applicant was again shown 10.10.1940 correctly on the basis of Seniority lists issued earlier from time to time and as per entries in Patwar candidate register copy of which was received from Chamba. It is also admitted that applicant represented against the seniority list requesting herein to correct his date of birth. It is submitted that the applicant was initially appointed as patwari in Chamba district and as per patwari candidate register of Chamba District, date of birth of applicant has been shown 10.10.1940. Moreover, in a departmental examination form for Naib Tehsildar filed by the applicant on 1.2.83 the applicant has shown date of birth 10.10.1940 instead of 10.10.1941. Therefore, the representation of the applicant was rejected on the ground that applicant was originally appointed in Chamba District and the date of birth in the patwari candidate register, which is an important document, has been shown 10.10.1940 copy of which has been received from D.C. Chamba. The applicant has shown 10.10.1940 as his date of birth in a departmental examination form of Naib Tehsildar filled by himself and the typed certificate showing date of birth 10.10.1941 issued by the Principal Govt. Boys Hr. Secondary School Chamba has been pasted by the applicant in his capacity as Kanungo when the record was in his custody.” 3. The reply on behalf of respondent No. 3 in para 6(viii) is to the following effect: “6(viii) In reply to para 6 (viii) is is submitted that the replying respondent had not received any application dated 7.4.1997 for issue of Duplicate Certificate of Middle Standard Examination held in February 1960, under Roll No. 3297 in its office nor the examination of the applicant was conducted by this Board. I n fact the Board was ...4... Constituted in the year 1969 and has conducted its first examination in the year 1970. Thus the Board has no record of the examination of the applicant and as such no duplicate certificate can be issued.” 4. The records reveal that the contention raised by the petitioner has force in it. The reasons to arrive at this inference at the very outset are enumerated hereinafter. The three documents, viz., School Leaving Certificate dated 02.09.1998, Annexure A-1, Certificate dated 23.07.1983, Annexure A-2, issued by the Principal Government Boys Higher Secondary School, Chamba, to the effect that the petitioner had passed the Middle Standard Examination conducted by Himachal Pradesh Territorial Council held in February, 1960, under Roll No. 3297 and Seniority List of officiating patwaries of Chamba District, Annexure A-2/B, issued by the Deputy Commissioner, Chamba, unmistakably go to show that the date of birth of the petitioner is 10.10.1941. However, in the subsequent seniority list, Annexure A-3, dated 04.09.1980, there is no column for date of birth. However, in the next Seniority List, Annexure A-4, dated 14.11.1984, the date of birth of the petitioner came to be recorded as 10.10.1940. It appears that the mistake occurred at this juncture. Soon thereafter, the petitioner made representation, Annexure A-5, dated 20.01.1985, pointingout that his date of birth is 10.10.1941 and the same had been shown wrongly as 10.10.1940 in the Seniority List, Annexure A-4, dated 14.11.1984. However, the mistake continued to be reflected in the official records such as seniority lists etc. even thereafter till the petitioner was finally retired from service on 31.10.1998. ...5... 5. True it is that Certificate, Annexure A-2, is not the original Middle Examination certificate issued by the Himachal Pradesh Territorial Council which conducted the said examination in February, 1960 and instead has been issued by the aforesaid Principal, Government Boys Higher Secondary School, Chamba, on the basis of school records, wherein his date of birth was recorded as 10.10.1941, which fact also finds support and due corroboration from School Leaving Certificate, Annexure A-1, issued by the Head Master, Government High School, Triloknath (Lahul Spiti), from where the petitioner had passed 5th standard examination. There is no evidence to the contrary showing that the date of birth of the petitioner is 10.10.1940 and not 10.10.1941. 6. In view of the above, the petition is allowed. Consequently, Annexure A-13 conveying rejection of representation made by the petitioner for correction of his date of birth and Annexure A-14 whereby the process for retirement of the petitioner was initiated are quashed. However, though taking into consideration the fact that the petitioner was already retired from service as far back as 31.10.1998 neither he can be reinstated into service after such a long lapse of time nor orders with regard to payment of salary for the period between 01.11.1998 to 30.10.1999 can be passed on the principle of “no work no pay” yet, for the purpose of payment of gratuity and pension etc. he would be deemed to have retired from service on attaining the age of superannuation on and w.e.f. 31.10.1999 instead of 31.10.1998, alongwith consequential benefits, which shall be payable to him ...6... within six months from today, failing which interest @ 9% p.a. Shall also be payable. 7. In view of the above, the petition stands disposed of, so also the pending CMP(s), if any. (V.K. Sharma) Judge 1st December, 2010 (virender)