SHEIKH NOOR-UD-DIN Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner seeks a writ of certiorari for quashing order No - 446/HE dated 5 -8 -1985. annexure G to the writ petition, issued by respondent No. 1 whereby the pay, allowances, emoluments, received by the petitioner from 1 -1 -1983 to 31 -3 -1984. allegedly on account of his over -stay in service, have been ordered to be deducted from his gratuity and pension ; also order No. PNR -11/86 -87/2532 -33 dated 4 -8 -1986, annexure H to the writ petition, of respondent No. 2 seeking the consent of the petitioner for deduction of Rs. 34,300.05 from his gratuity and pension, with further prayer for a writ of mandamus directing the respondents to disburse to the petitioner the pay of March and April. 1984 for the months he has rendered service.

(2.) TO put briefly, the case of the petitioner is that he entered the Government service as a teacher on 12 -8 -1953, was elevated to gazetted cadre on 1 -11 -1955 and confirmed as Lecturer on 31 -1 -1957. On preparation of his Service Book by respondent No. 1 and maintained by respondent No - 2 his date of birth was admitted as 18 -12 -1929, consequent to his production of Matriculation certificate, as per communication of Principal, A, S. College, Srinagar dated 12 -3 -1962. An extract of service card (copy annexure Bâ„¢ to the petition) was issued to him. The office of respondent No. 2 got gutted on 23 -2 -1977, along with his Service Book and petitioner was required to produce again proof of his date of birth to which be submitted the extract of service record, copy annexure Bâ„¢ to the petition, annexure Câ„¢ copy of seniority list of readers prepared by department in 1957 and annexure ËœDâ„¢ to the petition and copy of B.Ed certificate issued in 1954, signed by Vice -Chancellor of the Kashmir University indicating his date of birth 18 -12 -1929 and also the confirmation regarding the date of birth by respondent No 2 vide annexure E to the petition.

(3.) THAT the respondent No. 1 due to back door complaints of his colleagues, directed him to produce his original Matriculation certificate again, which was gutted in 1967, due to gutting of his house. The petitioner as well as the respondent approached the Punjab University, for original date of birth record, who showed inability to indicate the record of regarding the same The respondents appear to have relied on a Result Gazette issued in 1944, indicating date of birth of the petitioner as 18 -12 -1927 and not 18 -12 -1929. The petitioner pleaded with the respondent not to rely on the Result Gazatte but to accept his date of birth 18 -12 -1929 as per the documents produced and prepared by the respondents, which brought no fruit except on a telephonic message from respondent No. 1, he was relived from his duties with effect from 27th April, 1984 as per copy annexure F to the petition, with holding his pay for months of March and April, 1984. A show cause notice came be issued to the petitioner to explain why he should not be punished for having over -stayed in service, to which he projected the authentic record regarding his date of birth based on his original Matriculation certificate, but was ordered to be retired vide order No. 446 HE dated 5.8.1985 (annexure G to the petition) with effect from 1.1.1983, with the direction that pay and emoluments drawn by the petitioner from 1.1.1983 to March. 1984, be recovered from his gratuity. The respondent No 2 vide order No PNR -11/:6/87/2532 -33 dated 4.8.1986 (copy annexure H to the petition) sought his consent regarding recovery of Rs 34,30005 from his gratuity and pension. Therefore a writ of certiorari to quash both orders annexures G and H to the petition issued by respondents 1 and 2 regarding the recovery of allowances drawn by him from 1.1.1983 to March, 1994 from his gratuity and pension and seeking his consent for deduction of the amount indicated from his gratuity and pension being illegal, petitioner having rendered service to the respondent; and a writ of mandamus for directing the respondents to release the pay emoluments for the months of March and April 1984, together with pension, gratuity and other benefits on retirement with interest at the rate of 12% per annum