IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 3608/2008 Reserved on: 29.4.2011 Decided on: 05.05.2011 _____________________________________________ Manohar Lal Sharma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Ashwani K. Sharma, Advocate. For the Respondents: Mr. Vikas Rathore, Dy. Advocate General with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 to 4. None for respondents No.5. ____________________________________________________ Justice Rajiv Sharma, Judge. Petitioner was appointed as Physical Education Teacher in the Education Department on 31.8.1966. In his service book, the date of birth was recorded as 11.4.1948. His normal date of superannuation was 30.4.2006. However, vide Annexure A-1 dated 24.3.2006, he was retired retrospectively with effect from 30.4.2004. He made a 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 representation on 28.3.2006 to respondent No.2, however, the same till date, has not been decided. 2. Mr. Ashwani Sharma has vehemently argued that no inquiry has been held against the petitioner before the decision was taken to retire him on 30.4.2004 instead of 30.4.2006 vide Annexure A-1. According to him, petitioner has suffered civil and evil consequences. He then contended that in the petitioner’s service book, confirmation and seniority list issued from time to time, the date of birth of the petitioner has been recorded as 11.4.1948. He further contended that issuance of Annexure A-8 was also illegal, arbitrary whereby decision was taken to effect recoveries from the petitioner. He lastly contended that the pensionary/retiral benefits have also not been released to the petitioner. 3. Mr. Vikas Rathore has strenuously argued that petitioner has been retired on 30.4.2004 on the basis of Annexures R-I, R-II and R-III whereby the date of birth of the petitioner has been recorded as 11.4.1946. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner was appointed on 31.8.1966. In his service book, the date of birth has been recorded as 3 11.4.1948 vide Annexure A-3. There is a detailed procedure provided under S.R. 197, 198 and 199 the manner in which the service book is required to be prepared and attested from the competent authority. In the confirmation letter issued vide Annexure A-2, the date of birth of the petitioner has been recorded as 11.4.1948. In the final seniority list of C&V Teachers, issued on 1.6.1974, the date of birth of the petitioner has again been recorded as 11.4.1948. The petitioner has been directed to deposit a sum of ` 4,20,431/- on the basis of Annexure A-8 dated 17.4.2006. 6. Mr. Vikas Rathore has drawn the attention of the Court to Annexures R-I, R-II and R-II whereby the date of birth of the petitioner has been certified to be 11.4.1946 instead of 11.4.1948. These are the certificates issued by the Principal, Government Senior Secondary School, Darokha at Barial (Kangra), Principal, Government Senior Secondary School, (Mangwal) Pattittan and Principal, Government Senior Secondary School, Daroka at Barial, respectively. 7. It is not in dispute that no notice has ever been issued to the petitioner before the decision was taken vide Annexure A-1 to retire him with effect from 30.4.2004 though his normal date of retirement was 30.4.2006. 4 8. The Court is of the considered view that a regular inquiry was required to be held to determine the true date of birth of the petitioner. In the instant case no inquiry has been held against the petitioner and in view of this, the entry of date of birth recorded in the service book was required to be accepted. 9. Their Lordships of the Hon’ble Supreme Court in Hari Singh versus State of Bihar and others, (2000) 10 SCC 284 have held that in the absence of notice to the Government servant concerned of accepting a date of birth other than that recorded in his service book such an order was unsustainable. Their Lordships have further held that it amounts to violation of the principles of natural justice. Their Lordships have held as under: “2. The appellant entered government service and in the service-book his date of birth is recorded as 1-12-1943. On that basis he would have superannuated on 30-11- 2001. The competent authority however has passed an order retiring the appellant from service treating his date of birth to be 17-7-1936. This order is on the basis that when the appellant entered for training in 1961, his date of birth being 1943 he could not have got that training, inasmuch as he had not completed 19 years of age, as required under the rules. The learned counsel for the appellant however controverts this position, inasmuch as, according to him, it is only for a substantive appointment and not for training. We are not however delving into an inquiry on this aspect inasmuch as, in our opinion, the impugned order of the 5 Government cannot be sustained as concededly the Government never put the employee on notice to indicate that the date of birth as entered in the service- book is incorrect though it could have done so. Since no notice has been given to the employee concerned for accepting a date of birth other than the one entered in the service-book, the impugned order of retirement cannot be sustained. We set aside the impugned order altering the date of birth of the appellant. The appellant must be deemed to be continuing in service until duly superannuated in accordance with law.” 10. Petitioner has discharged his duties upto 24.3.2006. He had to superannuate, as per date of birth on record in the service book, on 30.4.2006. In view of this, the decision of the respondents to recover a sum of ` 4,20,431/- is harsh and oppressive. The respondents are estopped from making recoveries of ` 4,20,431/- from the petitioner. Petitioner has also been deprived of the pensionary/retiral benefits after the issuance of Annexure A-1 dated 24.3.2006. This Court on 7.11.2009 has passed interim order directing the respondent-State to at least release the provisional pension. Pension is not a bounty. 11. Petitioner has served the respondent- Department for about 40 years. It was utmost unfair on the part of the respondents to make recovery of salary and also to withhold the pensionary/retiral benefits. The action of the respondents to withhold the same was arbitrary. 6 12. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 13. Respondents were required to permit the petitioner to work upto 30.4.2006 on the basis of date of birth recorded in the service book, i.e. 11.4.1948. The action of the respondents of retiring the petitioner from retrospective date on the basis of Annexure A-1 is violative of Articles 14 and 16 of the Constitution of India. The action of the respondents to recover a sum of ` 4,20,431/- and to withhold his pensionary/retiral benefits is declared illegal. 14. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. 7 Annexures A-1 dated 24.3.2006 and Annexure A-8 dated 17.4.2006 are quashed and set aside. The petitioner will be deemed to have been retired from service on 30.4.2006. Respondents are directed to release the pensionary/retiral benefits to the petitioner with interest @ 9% per annum, if not already released, within a period of 8 weeks from the production of certified copy of this judgment by the petitioner. In normal circumstances, this Court could permit the respondent-State to hold inquiry to determine the date of birth of the petitioner; however, since the petitioner has already retired from service, it will be harsh and oppressive to order holding of inquiry against the petitioner. Moreover, the petitioner has already worked upto 24.3.2006 and he had to superannuate on 30.4.2006. Consequently, the matter is closed. No costs. (Rajiv Sharma), Judge May 05, 2011 *awasthi*