POOSA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Art. 226 of the Constitution challenging the order of the Assistant Engineer, Irrigation, Jodhpur Sub-division, dated December 15, 1969 (Ex. 3), directing that the petitioner Poosaram be retired from Government Service with effect from December, 15, 1969 on attaining the age of superannuation i. e. 58 years. The petitioner was employed initially as a driver in the Public Works Departments of the former State of Jodhpur in the year 1933. On the amalgamation of the former States to form the United State of Rajasthan, the petitioner was appointed as a workcharge driver in the Irrigation Department of the Rajasthan State. By an order of the Assistant Engineer, Irrigation Department, Jodhpur sub-Division dated June 23, 1969, the petitioner was intimated that his services would be terminated with effect from July 1,1967 on his completing the age of 55 years. However, on the petitioner's representation, this order appears to have been withdrawn and the petitioner was allowed to continue in the service of the Irrigation Department. Thereafter, on December 15, 1969, the Assistant Engineer again passed on order (Ex. 3) retiring the petitioner with effect from the date of that order on account of his attaining the age of superannuation, namely 58 years.

(2.) THE case of the petitioner is that his date of birth was September 1, 1918 and that he did not complete the age of 58 years on December 15, 1969 and as such, the order of his retirement (Ex. 3) was illegal and invalid. He has further submitted that his service book has been interpolated by the respondents.

(3.) RULE 9 of the Rajasthan Public Works Department ( Buildings & Roads ) including, Gardens. Irrigation, Water Works and Ayurvedic Departments' Workcharge Employees' Service RULEs 1964 (hereinafter called 'the RULEs'), by which the petitioner was governed, provides that where the date of birth is not recorded in the service record or where the service record is not available, the date of birth entered in the Municipal Birth Register or School Leaving Certificate/high School Certificate/horoscope prepared at the time of birth as the case may be, shall be accepted as the date of birth in all cases in which intimation regarding date of birth on the basis of the above mentioned record has been furnished by the employee. As, in the case of the petitioner, his service record is available, the date of birth as entered in the service record must be accepted as the correct date of his birth. I have already observed above that the alteration in the entry relating to the date of birth in the Service book of the petitioner has not been signed or even initialled by any person and further, the respondents have been unable to throw any light whatsoever regarding the circumstances in which the aforesaid alteration was made, it would be proper, in my view, to accept the original entry made in the service book of the petitioner, namely September 1, 1914, as his correct date of birth. Thus, the petitioner did not attain the age of 58 years on December 15, 1969, taking September 1, 1914 as the correct date of his birth and therefore, the order of the Assistant Engineer Ex. 3 is invalid and illegal. As the petitioner had not attained the age of superannuation till then, his removal from service was contrary to the rules governing his service conditions and amounted to his removal from service within the meaning of Article 311 of the Constitution. Admittedly, no disciplinary proceedings were taken against the petitioner and as such, he could not have been removed from service until he attained the age of superannuation, namely 58 years, in accordance with the rules.