D.S. SANDU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant (original plaintiff) filed a suit, being Special Civil Suit No. 68 of 1974, in the Court of the learned civil Judge, Senior Division, Baroda, for a declaration that the action of respondent-defendant State Government to retire the plaintiff as from 6-9-1972 was illegal, unauthorised and void and in violation of the principles of natural justice, because the plaintiff had a right to continue on the post up to 17-10-1974. He also prayed for a mandatory injunction directing the defendant-State Government to treat him in service till 17-2-1974, and in the alternative he prayed for a decree for Rs. 13,949/-, being the emoluments which he would have received if he had continued on the said post till 16-10-1974.

(2.) The facts of the case are, that the plaintiff joined the services of the erstwhile Baroda State as a Constable in the State Police Force on 6-9-1934 after having passed his matriculation examination in Amritsar District. Since he had no birth-certificate with him at the time of his recruitment, his age was noted as 20 years, and the State Government has come out with the case that the date of birth of the plaintiff entered in his service book was 6-9-1914, which appears to have been fixed by deducting 20 years from the date when he joined the service. It is the case of the plaintiff that he had no birth-certificate with him at that time. Thereafter he was selected in a post belonging to the Personal Department of the Ruler of the Baroda State. The said Department was known as 'the Khangi Department' (private department). According to the plaintiff, he produced his Birth Certificate on 1-10-1935 when he joined the Private Department of the erstwhile State of Baroda. On the strength of the said Birth Certificate, his birth date was noted in the records of the then Baroda State as 17-10-1916, and he was given the service book by the said State. Initially on the basis of the Birth Certificate date 22-10-1916 was entered in the second service book, but that was a mistake because 22-10-1916 was the date when the information was given to the officer who maintained the Register of Births and Deaths and, therefore, that date was corrected to 17-10-1916. Since his services were transferred to the bilingual state of Bombay on the merger of the State of Baroda, he continued to be in service of the Bombay State and thereafter on bifurcation of the State of Bombay, his services were allocated to the State of Gujarat. His second service book (described by the learned trial Judge in his judgment as 'the duplicate service book') was returned to him in year 1966. According to the plaintiff he had no knowledge that in the service book which was in possession of the State Government the date of his birth mentioned was 6-9-1914, and the same was not changed in year 1935 when he produced his Birth Certificate before the concerned officer of the Private Department of the erstwhile Bombay State, it is further contended by the plaintiff that during his tenure as a Police Constable and thereafter as Police Sub-Inspector and Police Inspector, gradation lists were published from time to time by the respective State Governments. At that time the age of superannuation was 55 years, and in the column showing the date of superannuation, it was notified that he was due to retire on 17-10-1971. He has further contended that when he received the intimation from the Accountant General's Office that he was completing 58 years of age on 6-9-1972, he for the first time came to know that there was some discrepancy or fallacy in respect of his birth date. He, therefore, made a representation to the office of the Accountant General stating that his Birth date is 17-10-1916, and he is due to retire not in 1972 but in 1974.

(3.) The plaintiff appears to have produced some evidence to convince the office of the Accountant General. The plaintiff has very strongly relied upon the letter dated 2-4-1973, Ex. 23, written by the office of the Senior Deputy Accountant General, Gujarat, to the Under Secretary to the Government of Gujarat, the material portion of which reads :