NATHUN CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, the petitioner has initially challenged the validity of the order dated 2.4.1993 of the Deputy Collector (Establishment) addressed to the Executive Officer, Bihar Municipality, Bihar Sharif, contained in Annexure -1, wherein it is stated that a complaint was received from one Mahendra Prasad that even after the retirement of the petitioner he was continuing in the service of the Municipality under verbal orders of the Special Officer. As such, he asked the Executive Officer to inquire and submit a report. The petitioner has alleged that after receipt of the said letter, the Executive Officer verbally restrained him from putting his signature on the attendance register and has also restrained the petitioner from working as Tax Collector which compelled him to file the present writ petition.

(2.) A counter -affidavit has been filed on behalf of the Executive Officer of the Municipality (respondent No. 3) in which it has been pleaded that the petitioner completed his 40 years of service in the Municipality on 26.1.1993 and therefore, he was superannuated with effect from 31.3.1993. With respect to the said date a typographical error has occurred in the statement made in paragraph 5 of the counter -affidavit and according to the learned Counsel for the Municipality it should be read as 31.1.1993. It is further stated that it is a matter of record that the petitioner has joined the service in the Municipality in the month of January 1953 as will be borne out from the seniority list prepared in the month of June 1989, photo copy whereof has been annexed as Annexure 'C'. According to the case of . the respondents, as per the direction of the State Government dated 28th May, 1990, contained in Annexure 'B' the employees under the Municipality are to retire on completion of 40 years of service in the absence of entry date of their birth in the service book. It is further stated that the stand of the answering respondent is further fortified from the pay bill of April wherein the name of the petitioner finds place at serial No. 5, a photo copy whereof has been annexed as Annexure 'D' Thus, according to the case of the respondents, from Annexures 'C' and 'D' it is nanifestly clear that the petitioner joined the service under the Bihar Municipality on 26.1.1953 and therefore, completed 40 years of service on 26.1.1993 on which date he retired from the service of the Municipality. The respondents have also stated that the Executive Officer under Memo No. 441 dated 10.5.1993, contained in Annexure 'E', directed the petitioner to hand over the charge of Tax Daroga to the then acting Tax Daroga, namely, Sri Awadhesh Chandra Sinha which the petitioner refused to accept as was reported by the peon. Thereafter, respondent No. 3 requested the petitioner to deposit the collected tax amount failing which prosecution will be launched against him vide letter dated 27.7.1993 which was received by him on the same day. A photo copy of the said letter has been annexed as Annexure 'F'.

(3.) A rejoinder has been filed on behalf of the petitioner in which he has denied that he joined the Municipality as Ward Jamadar on 26.1.1953. According to him, at that time after the death of his father, he was engaged in the Municipality as Daily Labourer and was not an employee in the establishment of the Municipality. It is claimed by him that he joined the service of the Bihar Municipality some time in the year 1960 or 1961 as Ward Jamadar and was later transferred as Tax Collection Peon in the year 1975. Finally, he assumed the charge of Tax Collector under the orders of the Executive Officer from one Sri Umapati Verma and vide order contained in Memo No. 1756 dated 18.11.1982 he was deputed to work on probation as Tax Collector in Ward No. 2. He was appointed as Tax Collector vide order dated 5.2.1983. According to the petitioner, as per the normal age of superannuation is provided in Rule 73 of the Bihar Service Code and Rule 5(g) of the Bihar Municipal Officers and Servants Pension Rules, 1927 an employee is to retire from the job when he attains the age of 58 years and not before that. According to him, his date of birth is 4.7.1942 as has also noticed in thetransfer certificate issued to him on 6.1.1953 by Sri Ram Janki Secondary School, Gurusharanpur, Patna, A photo copy whereof has been annexed as Annexure -9 to the rejoinder -affidavit. In support of his date of birth, he has also relied upon the certificate of Hindi Vidyapath, Deoghar, Bihar for passing of Preveshika Examination in the vear 1983 which is equivalent to the Matriculation Examination. A photo copy whereof has been annexed as Annexure 9/1.