NIRANJAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner with a prayer for the issuance of a writ of certiorari for quashing the communication by virtue of which the petitioner is superannuated from service. At the same time prayer has been made for the issuance of a writ of a mandamus directing the respondents to allow the petitioner to continue in service till the final disposal of the writ petition or till he attains the age of superannuation according to his date of birth recorded in his service book.

(2.) THIS petition emanates from the facts that the petitioner was employed as a sepoy under Army No. 9091776 in 12 Bn. JK Militia. He was enrolled as such on 23.6.1951 after serving the maximum period of 13 years in the aforementioned Battalion, he was discharged on 1.9.1964, on the basis of his date of birth shown in Annexure -B to the petition wherein his age has been shown as 23 years on the date of enrolment in service which comes to 23.6.1928 and the date of enrolment shown in Annexure PA is 23.6.1951. Thereafter the petitioner joined 2 Field Ordinance Dept. (FOD) under Army No. 6110 on 2.7.1965. At the time of entering into the new service the Army people got the petitioner medically examined and his date of birth was recorded in his service book according to the medical examination. Petitioner alleged that the army people revoked the date of birth shown in the discharge certificate, Annexure PI -A for not being reliable and instead recorded the date of birth on 5.7.1935 based on the medical examination. According to this date of birth, the petitioner was required to be superannuated in the year 1995 at the age of 60 years. Petitioner thereafter received a communication bearing No. 703/618/TIN dated 14.9.1989 by virtue of which the petitioner was being super annuated on 30.9.1989 on the basis of the date of birth shown as 23.6.1928 which was entered in the discharge certificate issued by the JK Militia department. Petitioner is aggrieved of this order of the respondents. According to him, respondents were bound to act upon the date of birth shown in the service record on the basis of medical assessment and not on the date of birth shown as 23.6.1928, which was based on the service record of the J&K Militia where he had served. According to him, the date of birth certificate, which shows his age as 23 years, was revoked by the respondents and that is why they got him medically examined to ascertain his date of birth. It is further alleged that the service of the petitioner had been terminated without conducting any inquiry in the matter. Even if the date of birth was disputed, respondents could not have acted on the previous date of birth to the detriment of the petitioner and without giving him an opportunity of being heard.

(3.) DETAILED counter has been filed by the respondents. Their case is based on the facts that the petitioner had served for one and a half decade in the J&K Militia from 1951 to 1964. After serving there for 13 years when he was discharged, he got himself enrolled in the 2 FOD. He concealed this fact from the authorities in the FOD at the time of entering into service that he was an ex -serviceman. When he was asked about the date of birth, he never revealed to the respondents that he was an ex -serviceman and had served the J&K Militia for 13 years. But, he took the plea that he does not have any date of birth certificate. He thus, concealed this fact that his date of birth in the discharge certificate was recorded as 23.6.1928. The respondents, therefore, relied on him and got him medically examined regarding the age. According to this medical assessment, his date of birth was fixed as 5.7.1935. After serving more than a decade in the FOD, petitioner, however, revealed that he was an ex -serviceman in J&K Militia 12 Bn. as a sepoy. Record office of the J&K Militia was accordingly asked to furnish details of pay which he received at the time of discharge. Record office, J&K Militia forwarded the statement of pay and service particulars of the petitioner wherein the age of the petitioner was shown as 23 years at the time of enrollment in J&K Militia, viz. 23.6.1951. Calculating thus the date of birth as per Army discharge certificate, was 23.6.1928. Regarding the correctness of the date of birth the petitioner was asked to produce the original army discharge certificate vide Circular bearing No. 703/Tnd/ 293/PIN dated 4.7.1980 but the petitioner showed his inability to produce the same on the plea that the original has been lost by him. However, according to the date of birth recorded by the J&K Militia as 23.6.1928, the petitioner was due to retire from service on 30.6.1988 after attaining the age of super annuation i.e. 60 years As the petitioner had willfully concealed the fact of his old service in J&K Militia, his case with regard to the correction of birth date was taken up with the higher authorities. The Army Headquarter consumed a year about to reach a final stand to be taken in the matter and directed that the petitioner be superannuated on the basis of the date of birth recorded in the discharge certificate issued by 12 Bn. J&K Militia which was recorded as 23.6.1928. As the petitioner had already crossed the date and had exceeded by one year in service in 2 FOD, so his excess period was regularised and was ordered to be super annuated. It has further been mentioned that all this unfortunate happening took place only because the petitioner concealed this fact that he was ex -serviceman and had served 13 years in J&K Militia before entering into the service of 2 FOD in 1965. It is only when the petitioner could not produce any certificate showing his date of birth that the respondents had to take recourse of getting him medically examined for the assessment of age. When his age was assessed, his date of birth as 5.7.1935 was recorded in his service book. But for at least a decade he remained silent and thereafter leaked out that he was an ex -serviceman and his date of birth recorded in the discharge certificate was 23.6.1928. The respondents relied on this documentary proof and brushed aside the previous date of birth recorded on the basis of eye test. Para 4 I have heard learned counsel for the parties and gone through the record.