IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 4949 of 2008. Decided on: 07.05.2010. Saran Dass. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Petitioner: Ms. Archana Dutt, Advocate. For the Respondents: Mr. Anil Jaswal, Deputy Advocate General. Rajiv Sharma, Judge: Material facts necessary for adjudication of this petition are that the petitioner was appointed as Sweeper in the respondent-department in the year 1956. He was retired on 21st December, 1995 as per Annexure PA/1. The case of the petitioner, in a nutshell, is that he was to retire in the year 1996 and the action of the respondent retiring him on 21.12.1995 is against law. The case of the respondents, in a nutshell, is that a complaint was received from one Shri Jaspal whereby he has alleged that the date of birth of the petitioner was 24.8.1931 and on that basis he should have retired with effect from 24.8.1991 after attaining the age of 60 years. The respondent-State has enquired into the matter as per Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Annexure R-2/A and came to the conclusion that the date of birth of the petitioner was 24.8.1931 and he should have retired on 24.8.1991. 2. Ms. Archana Dutt, leaned counsel for the petitioner has strenuously argued that her client was regularly appointed employee. She then contended that in the present case regular inquiry was required to be held to ascertain the exact date of birth of the petitioner after associating him. She then contended that though the petitioner has to retire on 31.8.1991, but fact of the matter is that her client has worked upto 21.12.1995 and this period is required to be counted for the purpose of pensionary benefits. Mr. Anil Jaswal, learned Deputy Advocate General has argued that the case of the petitioner is under consideration of the State Government since 1996, however, final decision could not be taken till date. 3. I have heard the learned counsel for the parties and gone through the pleadings carefully. 4. It is not disputed that the petitioner was appointed as Sweeper on regular basis. He was to retire as per the entries made in his service record in the year 1996. A complaint was lodged by one Shri Jaspal against the petitioner on 21.7.1995. The respondents have not held any regular inquiry against the petitioner to ascertain his exact date of birth. The respondent-State merely on the basis of school certificate Annexure R-2/A has come to an abrupt conclusion that the date of birth of the petitioner was 24.8.1931 and he had to retire after attaining the age of 60 years on 24.8.1991. The Court is of the considered view that a regular inquiry ought to have been instituted against the petitioner as per Central Civil Services (Classification, Control and Appeal) Rules, 1965. In this case merely issuing the show cause notice dated 31.10.1995 was not - 3 - sufficient. Petitioner ought to have been given opportunity to lead his evidence to establish that his date of birth has been correctly recorded in the service record. 5. The matter is required to be considered from another angle. Petitioner has worked till 21.12.1995 undisputedly. Petitioner has made representations on 20.11.1996, 6.1.1997 and 18.2.1997 and had also issued legal notice in September, 1997 seeking pensionary benefits. The matter was taken up through the Divisional Commissioner, Mandi with the State Government vide letter dated 16.3.1996 for condoning the period between 1.9.1991 to 21.12.1995. Thereafter, the matter has been taken up by the Deputy Commissioner, Hamirpur with Sub Divisional Officer (Civil) on 18th March, 1997. The Divisional Commissioner, Mandi has again taken up the matter for condoning the period with effect from 1.9.1991 to 21.12.1995 with the State Government vide letter dated 23..3.1998. However, no decision has been taken till date by the respondent-State. 6. Fifteen years have elapsed from the retirement of the petitioner with effect from 21.12.1995 and he has not been paid any pensionary benefits including pension and gratuity etc. Twelve years have gone by after the matter was taken-up by the Divisional Commissioner, Mandi with the State Government on 23.3.1998. In this case the respondent-State should have granted the petitioner pension at least by counting his qualifying service upto 31.8.1991 and thereafter the disputed period could have been settled later on. Petitioner has not been paid the retrial benefits only for the reason that the decision could not be arrived at by the State Government for 15 long years whether the period with effect from 1.9.1991 to 21.12.1995 is to be condoned or not. Pension is property and not a - 4 - bounty. It has been given the status of Fundamental Right under Article 21 of the Constitution of India. 7. In view of the above discussion, since no regular inquiry was held by the respondents to ascertain the exact date of birth of the petitioner, the action of the respondents retiring the petitioner with effect from 21.12.1995 is declared unconstitutional and illegal. Petitioner has worked upto 21.12.1995. In view of the peculiar facts and circumstances of the case, the petitioner will be deemed to have retired on the basis of the date of birth recorded in his service record on 31.8.1996. The principle of “no work no pay” shall not apply in the present case since the petitioner has been prevented from discharging his duties of the post of Sweeper on the basis of letter dated 21.12.1995. He is held entitled to the salary with effect from 21.12.1995 till the actual date of his retirement, i.e. 31.8.1996. 8. No other point was urged. 10. Accordingly, in view of the observations made hereinabove, the writ petition is allowed. Respondents are directed to release and pay the pensionary benefits to the petitioner within a period of ten weeks from today after counting the length of service from 1958 to 31.8.1996. This amount shall carry interest @ 9% per annum. There shall, however, be no order as to costs. (Rajiv Sharma) Judge. May 07, 2010. (sck).