RAM KHELWAN PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) By means of this writ petition, under Article 226 of the Constitution of India, the petitioner has prayed that the orders dated 30th April, 1996 and 23rd November, 1996, Annexures-2 and 3 to the writ petition, passed by respondent No. 2. Executive Engineer, Minor Lift Canal Division, Jaunpur be quashed and the date of superannuation of the petitioner be treated for the purposes of obtaining pensionary benefits as 28th February, 1997. Counter and rejoinder-affidavits have been exchanged.

(2.) The petitioner was appointed as class IV employee on the post of Chaukidar under the establishment of Minor Lift Canal Division, Jaunpur in the year 1969. He was confirmed on the said post in the year 1973. In the service record of the petitioner, his date of birth had been recorded as 3rd November, 1994. The age of superannuation for class IV employee is 60 years and therefore on the basis of the said date of birth, the petitioner was to retire on 30th November, 1994.

(3.) It is alleged that the petitioner was not knowing about his correct date of birth and consequently he made a representation after receiving a notice of retirement on 13.9.1993. Sri Ashok Kumar, the then Executive Engineer, Minor Lift Canal Divisions, Jaunpur referred the petitioner for medical examination by the Chief Medical Officer. After taking into consideration the report of the Chief Medical Officer. Jaunpur, Sri Ashok Kumar. the then Executive Engineer passed order on 21.2.1994. a copy of which is Annexure-1 to the writ petition to the effect that the notice dated 13.9.1993 issued to the petitioner shall stand partially amended, inasmuch as the petitioner shall retire on 4.2.1997, meaning thereby the date of birth of the petitioner was accepted as 4.2.1937 instead of the year 1934. In pursuance of the said order the petitioner continued to work from 1st December, 1994, onwards. Subsequently, the successor of Sri Ashok Kumar. Executive Engineer passed an order, Annexure-2 to the writ petition, on the basis of the date of birth incorporated in the service record of the petitioner, i.e., 3.11.1934 that he shall be deemed to have been superannuated on 30.11.1994. This order was passed on 30.4.1996 by Sri Dinesh Kumar, Executive Engineer after obtaining the opinion of the District Government Counsel (Civil), Jaunpur. Accordingly, the petitioner was relieved on 30.4.1996. Subsequently an order was passed on 23rd November, 1996. Annexure-4 to the writ petition that since the petitioner had continued to work after the date of superannuation which was 30.11.1994. a sum of Rs. 51,074 as being the amount of salary for the period 1.12.1994 to 30.4.1996 shall be recovered from the petitioner from out of the amount of leave encashment, gratuity as well as provident fund.