1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR WRIT PETITION NO. 3321 OF 1997 K. G. Nangardhane, Adult, Head Master, Nagar Parishad Vidyalaya, Pavani, District Bhandara. ........ PETITIONER // VERSUS // 1. Chief Officer, Municipal Council, Pavani, District Bhandara. 2. Education Officer (Secondary), Zilla Parishad, Bhandara. ....... RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. S. S. Joshi, Adv. for Petitioner. Mr.G. Y. Gharote, Adv. for respondent no.1. Mr.D.P.Thakre, A.G.P. for respondent no.2. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- 2 CORAM : A. H. Joshi and R. K. Deshpande, JJ. DATE : 13.1.2010. ORAL JUDGMENT (per R. K. Deshpande, J) : 1. Heard Mr. S. S. Joshi, Adv. for Petitioner, Mr.G.Y.Gharote, Adv. for respondent no.1 and Mr. D. P. Thakre, Assistant Government Pleader for respondent no.2. 2. This petition challenges the communication dt. 7.10.1997 issued by the Education Officer (Secondary), Zilla Parishad, Bhandara to the Chief Officer, Municipal Council, Pavani, Tq. Pavani, District Bhandara informing him that the petitioner completed the age of superannuation of sixty years on 2.5.1996 and in spite of it, he has been continued in service thereafter. He further informs that the salary bills of the petitioner are released from 2.5.1996 onwards and therefore, an action should be initiated for recovery of said amount. 3. The facts leading to the case in hand are as under : The petitioner entered the service of Nagar Parishad on 23.7.1962 and at that time, his date of birth was recorded in the service 3 record as 30.8.1937. The petitioner claims that he was confirmed employee prior to 1965 and he was entitled to continue in service till completion of age of 60 years on 30.8.1997. The petitioner alleges that, at the instance of one Mr. Parate, dispute was entertained in respect of the date of birth of petitioner and by the impugned order dt. 7.10.1997, the Education Officer has held that the petitioner's date of birth was 2.5.1937 and therefore, he should have been retired upon completing the age of 60 years w.e.f. 2.5.1996. Thus, by the impugned order, recovery of salary paid is sought from the petitioner for the period from 2.5.1996 till 30.8.1997, although the petitioner actually performed his duties till 30.8.1997. In support of his claim, the petitioner has relied upon the communication dt. 26.8.1997 issued by the Deputy Director of Education, Nagpur region, Nagpur informing the Chief Officer, Municipal Council, Pavani that the petitioner completes his age of 60 years on 30.8.1997. 4. This petition was admitted on 23.12.1997. By an order dt. 15.12.2000, this Court directed that all pensionary/terminal benefits be paid to the petitioner provisionally on the basis as if he had retired on 2.5.1996 and so far as the question of payment of terminal benefits amount is concerned, that period was kept open to be decided at the time of final hearing. It is not disputed that the petitioner has actually worked on the post of Head Master till 30.8.1997. According to the petitioner, he 4 attained the age of 60 years on 30.8.1997. 5. Respondent no.1/Municipal Council, Pavani filed its reply, in which it is admitted in specific terms that, at the time of admission of petitioner in service on 23.7.1962, his date of birth was recorded as 30.8.1937 in his service book. It is further stated that this date of birth is in consonance with the date of birth of the petitioner as recorded in the original register of Municipal Council kept for recording the births in the locality. It is also not disputed that, the age of superannuation so far as the petitioner is concerned, it is 60 years and if his date of birth is taken as 30.8.1937, then he was rightly retired w.e.f. 30.8.1997. It is, however, stated that the date of birth of petitioner as per the Dakhal Kharij register is 2.5.1936 and it was on the basis of letter of the earlier principal Mr.Parate that the impugned communication dt. 7.10.1987 seems to have been issued. Although the Education Officer (Secondary), Zilla Parisahd, Bhandara is party to the present petition, neither any affidavit nor any reply is filed. 6. The only dispute involved in the present petition is regarding the date of birth of petitioner whether it is 30.8.1937 or 2.5.1936. At the time of entry of petitioner in service on 23.7.1962, the entry taken in his service book in respect of his date of birth was 30.8.1937. The same is 5 supported by the entry recorded in the date of birth register maintained by the Municipal Council. Thus, the entry in the service book is on the basis of primary evidence of entry in the date of birth register maintained by the Municipal Council. In view of this, the stand that the date 2.5.1936 is the date of birth of petitioner alleged in the impugned communication loses all its significance. The date of birth of the petitioner has to be accepted as 30.8.1997. It is not in dispute that the petitioner was entitled to be continued in service till the age of 60 years. In view of the fact that the date of birth of petitioner was 30.8.1937, he was rightly continued in service upto 30.8.1997. The order dt. 7.10.1997 of the Education Officer (Secondary), Zilla Parishad, Bhandara is, therefore, clearly illegal and is, therefore, set aside. 7. In the result, the instant Writ Petition is allowed. The respondents are directed to release the salary of petitioner till 30.8.1997, if not already released. If the salary is already paid till 30.8.1997, the same shall not be recovered. The respondents are further directed to grant the petitioner all consequential benefits including continuity in service till 30.8.1997, fixation and payment of pension and other benefits as if the petitioner was continued in service till the age of 60 years upto 30.8.1997. This entire exercise to be carried out within a period of four months from today. 6 8. Rule is made absolute in the above terms. There shall be no order as to costs. JUDGE JUDGE jaiswal