TEJ NARAIN PRASAD Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Petitioner was appointed as Road Roller Driver on 01.06.1970. Initially in the Service Book, Annexure 1 to the petition, his date of birth was recorded as 20th January 1947. Vide order dated 06.07.2002 passed by Executive Engineer, correction was made in the Column of date of birth, making date of birth of the petitioner as 20th January 1941 instead of 20th January 1947. A legal opinion was sought from the Government Pleader by the Executive Engineer, on the question of correction of date of birth of petitioner. Government Pleader, vide letter dated 05.05.2001 (Annexure 2), has opined that year of date of birth of the petitioner seems to be 1947 instead of 1941. A committee was also constituted to find out the correct date of birth of the petitioner. The Committee in its Report dated 17.02.2001, after examining all the materials made available before them, opined that year of date of birth of the petitioner seems to be 1947. It has further been observed by the Committee that if date of birth of the petitioner is taken as 1941, his initial appointment becomes illegal, in view of the fact, that he would have been 29 years of age on the date of appointment, while as per the prevailing Rules at the relevant time, maximum age limit prescribed was 25 years. Respondent no. 3 issued a letter dated 25.09.2001 (Annexure 4) informing the petitioner that he stood retired retrospectively w.e.f. 31.01.1999. Aggrieved by the order dated 25.09.2001, petitioner preferred a writ petition, W.P. (S) No. 5659 of 2003 before this Court, which was disposed of vide order dated 21.11.2003 with liberty to the petitioner to get his date of birth adjudicated by a competent Court of law. Thereafter, vide impugned order dated 19.12.2005 (Annexure 7), State Government has directed to recover the salary paid to the petitioner w.e.f. 1st February 1999 to September 2001, the period, petitioner was allowed to work despite reaching the age of superannuation on 31st January 1999. Petitioner has filed a civil suit for the adjudication of his date of birth. Civil suit was decreed by the Munsif-I, Bhagalpur vide Judgment dated 2nd January 2006 by observing that correct date of birth of the petitioner is 20th January 1947. Thereafter, petitioner has filed present writ petition seeking direction to grant monetary benefit to him for the period he was not allowed to work by passing illegal order dated 25.09.2001 and for quashing the order dated 19.12.2005, whereby recovery was directed to be made from the petitioner. I have heard Learned Counsel for the parties and I have perused the record.

(2.) Undisputedly, petitioner has joined the duties as Road Roller driver pursuant to the appointment dated 1st June 1970. Undisputedly, initially his date of birth was recorded as 20th January 1947. Undisputedly, Executive Engineer, without any notice to the petitioner, had made correction in the column of date of birth of the petitioner, making his date of birth as 20th January 1941 instead of 20th January 1947. Judgment passed by Munsif-I, Bhagalpur dated 2nd January 2006 has attained finality, in view of the fact that, there is nothing on record to show that judgment dated 2nd January 2006 passed by Munsif-I, Bhagalpur was ever set aside. Moreover, in view of the opinion given by the Government Pleader as well as the Committee constituted by the Department, date of birth of the petitioner seems to be 20th January 1947. Undisputedly, age of retirement of the petitioner had increased from 58 years to 60 years. If date of birth is taken as 20th January 1947, he would have retired in 2007. In view of undisputed facts, as narrated herein before, order impugned dated 25.09.2001 (Annexure 4) retiring the petitioner w.e.f. 31st January 1999 does not sustain in the eyes of law. Since, petitioner was to retire in 2007, therefore, order impugned dated 19.12.2005 (Annexure 7), whereby recovery was directed to be made from the petitioner, also does not stand in the scrutiny of law. Since, there is nothing on record to prove that petitioner remained unemployed and/or was not engaged gainfully during the intervening period, applying the principle no work no pay, direction should not be issued to make payment of full wages for the intervening period, however, since, petitioner was illegally made retired w.e.f. 31st January 1999, therefore, he is entitled for compensation for the period he was made to sit idle for no fault of him. In view of the discussion made hereinabove, present writ petition is allowed. Order dated 25.09.2001 (Annexure 4) as well as Order dated 19.12.2005 (Annexure 7) are hereby quashed. Petitioner shall be paid compensation to the tune of Rs. 2 lakhs for the period, he was not allowed to work. However, for the purpose of accounting the pension, petitioner shall be deemed on duty till the age of superannuation 31st January 2007. All the monetary benefits, after calculation, shall be released in favour of the petitioner within sixty days from the date of receipt of this order. Any amount deducted under the impugned order dated 19.12.2005 (Annexure 7) shall also be refunded to the petitioner within 60 days from the date of receipt of this order. Failing which, petitioner shall be paid interest on the amount found payable to the petitioner at the rate of 10% P.M. from the date of expiry of sixty days period till the date entire amount is paid to the petitioner.