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Balbeer v. U.P. State Electricity Board & Others - WRIT - A No. 24151 of 2000 [2006] RD-AH 19231 (15 November 2006)


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Civil Misc. Writ Petition No. 24151 of 2000

Balbeer  Vs. U.P. Power Corporation and others

Hon'ble Prakash Krishna, J.

The petitioner who was serving as Class IV employee with the respondent by means of present writ petition sought quashing of the order, dated 31st August, 1999, Annexure-3 to the writ petition and also a writ of mandamus commanding the respondents to treat the petitioner in service till 31st August, 2001 and to pay his salary for this period and count petitioner's seven years of service from 1964 to 1971, rendered in Irrigation Department, U.P. and pay the balance amount of gratuity, full G.P.F. pension etc. with 24% interest per annum.

The petitioner was initially employed as Sweeper in the Irrigation Department of the State of U.P. at Obra (Mirzapur), which is now in district Sonbhadra. Year 1940 was recorded as his date of birth in the service wherein he had rendered service in the Irrigation Depart from 1964 to 1971. By means of letter dated 12th April, 1971, the petitioner along with 32 other persons joined the services of respondent Corporation, which was earlier known as U.P. State Electricity Board. The name of the petitioner finds place at serial no. 16. He was retired from the services on 31st August, 1979 treating his year of birth as 1939. Challenging the retirement on 31st August, 1999, the present writ petition has been filed  mainly on the pleas that he is an uneducated person and was entitled to continue in service for some time more as his year of birth has been recorded as 1940 in the service book maintained by the Irrigation Department, the erstwhile employer of the petitioner. In the counter affidavit it has been stated that on 18th August, 1977, the Medical Officer of Project Hospital Obra issued a certificate certifying the age of the petitioner to be 38 years on the date of certificate and accordingly, the date of birth of the petitioner came to be as  18th August, 1939 and thus, the petitioner was rightly superannuated on 31st August, 1999. There is nothing on record to show that the date of birth was wrongly recorded in the service book. Much emphasis has been laid on the appointment letter, dated 12th April, 1971, whereby the petitioner was offered appointment along with other persons who were also working in the Irrigation Department. In the said appointment letter it has been specifically stipulated that the appointment given by the respondents is a fresh appointment and any service rendered in the Irrigation Department shall not be counted for any purpose including the seniority.

Learned counsel for the petitioner made two fold arguments in support of the writ petition. He submitted that in the service book maintained by the Irrigation Department where the petitioner was initially appointed, the year of birth has been shown as 1940 vide Annexure-1 to the writ petition. The petitioner is an illiterate person and he is totally unaware as to how his date of birth has been recorded by the respondent Corporation on the basis of the medical certificate as 18th August, 1939. He further submitted that the original medical certificate is missing and no reliance can be placed upon the photo stat copy of the said medical certificate  issued by the Medical Officer of Project Hospital Obra, dated 18th August, 1977. It was further submitted that in any view of the matter, the service rendered by the petitioner in Irrigation Department should be counted for the pension purposes in view of the circular dated 27th October, 1995 issued by the respondent Power Corporation themselves , a true copy thereof has been filed as Annexure-7 to the writ petition. In reply the learned counsel for the respondents could not make any submission and he stood up like a mute spectator. Sri K.N. Rai, Advocate, holding brief of Nipendra Misra, Advocate, learned counsel for the respondent Corporation  was present, but he was not aware of the facts of the case, so much so he prayed for time to file counter affidavit, while as a matter of fact, counter affidavit was already filed by the respondent Corporation. He submitted that now Sri Nipendra Misra, Advocate is the Standing Counsel, therefore, he is not aware of the fact whether any counter affidavit has been filed by the respondents or not through its earlier counsel. This fact has been recorded in the order sheet dated 1st November, 2006, when the case was heard and judgment was reserved in the absence of any assistance rendered by the learned counsel for the respondents, as  there was no option left with  the Court except to reserve the judgment and consider the pleadings of the parties on record. Needless to say the quality of the judgment depends upon the quality of arguments advanced by the learned counsel for the parties. In the  absence of any effective assistance rendered by the learned counsel for the respondents the burden on Court increases unnecessarily.

The first argument raised by the learned counsel for the petitioner that the petitioner should have retired treating his date of birth as in the year 1940, which was recorded in the service book maintained by the Irrigation Department needs consideration. It is difficult to accept the said argument at this distance of time for the reasons more than one.  Indisputably, the petitioner was made to  retire by respondents on 31st August, 1999. The present writ petition was not filed immediately thereafter and was presented before the Stamp Reporter for reporting on 17th May, 2000. If the petitioner was in any way aggrieved by the action of the respondents, retiring from the service, before attaining the age of superannuation on 31.8.1989, the challenge should have been made within a reasonable time. The petitioner should have invoked the jurisdiction of this court soon after 31st August, 1999 and there is no plausible explanation for not filing the writ petition immediately thereafter. Secondly the respondent Corporation recorded 31st August, 1939 as the date of birth in the service record of the petitioner. The said recording was made on the basis of the medical certificate issued by Medical Officer of Project Hospital, Obra. May be the original certificate is presently not traceable but the fact remains  that in the service record of the petitioner 18th August, 1939 is recorded as his date of birth. The petitioner should have challenged the said recording of date of birth in the year 1977 when it was recorded or soon thereafter. The allegation that the date of birth was incorrectly recorded in the service book can not be entertained at the instance of an employee who failed to raise a dispute soon when the entry made in the service book, or soon thereafter. After retirement it does not lie in the mouth of such a employee to say that his date of birth was incorrectly recorded in the service record.

       In State of U.P. Vs. Smt. Gulechi AIR 2006 SC 4209, it has been held that the Court or the Tribunal must slow in changing the date of birth of a public servant when such dispute was raised by the public servant at the fag end of his career unless prima facie evidence of unimpeachable character is produced by the government servant.  

U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar Agnihotri AIR 2005 SC 2491 is an authority for the proposition that a correction in the entries made in the government records on the basis of which government servant get certificates can not be allowed to be changed just a few years before the retirement or at the fag end of his retirement. Reversing the judgment of the Allahabad High Court the Apex Court has followed besides its various earlier judgments including that of State of U.P. Vs. Smt. Gulechi, referred to above.                  

Apart from above on merit the petitioner has no case. In the service record of the petitioner maintained by the Irrigation Department, no definite date of birth has been recorded. Year 1940 has been mentioned as the year of birth. This itself shows that the year 1940 was recorded by way of estimate and on guess work. The medical certificate issued by the Medical Officer, Project Officer, Obra is also on the basis of physical examination of the petitioner, certifying that he was 38 years of old. This gives the date of birth of the petitioner as 18th August, 1939. This is also based on guess work by an expert and possibility of small variation can not be ruled out. I see not much difference in between 18th August, 1939 and the year 1940 is there. which obviously means 1st January, 1940. The precise date of birth can not be determined by medical examination or by physical appearance. Coupled with the fact that the petitioner did not apply for correction  in his date of birth in the year 1977 he can not be permitted to agitate the same after lapse of about 23 years.

The next point urged was that the petitioner is entitled for consideration of length of service rendered by him in the Irrigation Department for the pension purposes. Reliance has been placed upon a circular dated 27th  October, 1995 issued by the U.P. State Electricity Board (now known as U.P. Power Corporation). A fair reading of said circular clearly supports the contention of the learned counsel for the petitioner. It has been provided in the said circular that such employees and officers who were employed earlier with the Union of India, or the State Government or any such public sector organizations, Nigam/Corporation which were in the control of Union of India or the State Government, shall be entitled for pensionery benefit purposes  calculation of pension for the service rendered by them earlier with such government before joining the Corporation. In para 1 of the said circular three categories have been carved out. Category no. 2 deals with such Central Government employees/State Government employees or such employees who were working in the Public Sector Organizations under the direct control of State Government or the Central Government and were working on temporary post and have been permitted to join the U.P. State Electricity Board with the permission of the concerned Administrative Officer, such employees would be entitled for clubbing of the services rendered by them with the Union Government/State Government  or such organizations for the pension purposes. The said circular  was evidently issued with an object to give benefit to the State Government and the Central Government employees, who have earlier worked with such Government and thereafter have been appointed in the U.P. State Board / Corporation. At this juncture it is apt to consider the plea raised in the counter affidavit to the effect that the appointment  offered to the petitioner was a fresh appointment, as clearly stipulated in the appointment letter. No doubt the appointment of the petitioner was a fresh appointment and he was not entitled to claim any seniority on the basis of the service rendered by him in the Irrigation Department, but certainly in view of above Board's circular dated 27th October, 1995 he is entitled for addition of seven years of service rendered by him  i.e the Irrigation Department for the pension purposes only. A bare perusal of appointment letter filed as Annexure-CA 1 to the counter affidavit  would clearly show that the petitioner and other persons mentioned therein were taken by the respondent Board who were earlier working in the Irrigation Department . This suffice the condition laid down in the Board's circular dated 27th October, 1995. At least nothing has been shown in the counter affidavit for the non applicability of the aforesaid Board's circular dated 27th October, 1995. Reference has been made in para 11 of the writ petition which has not been seriously contested in the counter affidavit. In para 17 of the counter affidavit only this much has been stated that the reply of the contents of para 11 of the writ petition has already been given in the preceding paragraph.  It is difficult to find any relevant material thing from the averments made in the counter affidavit which may disentitle the petitioner to claim the benefit of Board's circular dated 27th October, 1995. In the absence of any pleading in this regard, this court is of the view that the service rendered by the petitioner in the Irrigation Department is liable to be counted for the purpose of calculation of pension. This view does not run counter to the terms and conditions as stipulated in the appointment letter of the petitioner.

Before parting with this case it may be noted that in para 18 of the counter affidavit of Narendra Kumar who was posted as Executive Engineer, it has been stated that some amount has been paid to the petitioner and the petitioner can collect the balance amount on any working day from the answering respondent/department. There are typographical errors in the said paragraph and the said paragraph is reproduced below as such.

"18. That in reply to the contents of paragraph no. 12 and 13 of the writ petition, it is stated that the sum amount has been paid to the petitioner and rest of the amount can be concluded by the petitioner from any working day from the answering respondent's department."

In para 15 of the rejoinder affidavit the petitioner has come out with a case that he went to collect the balance amount from the office of the respondent, but the remaining amount was not paid to the petitioner and he also gave an application in writing on 27th August, 2001 to the Executive Engineer OCC MD-1 Obra. There is no reason to doubt the said averment of the petitioner. The respondent should have shown a good gesture by tendering balance admitted amount along with the counter affidavit or by sending it through post by way of Bank draft or cheque payable to the petitioner instead of asking him to run from pillar to post  to get the balance undisputed  amount. The respondents being employers are duty bound to pay all the undisputed amount to its employee and more so in the case of retired employee who has spent best part of his life in serving the Corporation. The respondents therefore, may be   liable to pay them salary interest at the rate of 12% per annum on the balance amount from 1st January, 2000 till the date of actual payment. It shall be open respondent no. 1 to recover the said interest amount after fixing the responsibility of the erring official so that there may not be any loss to the public exchequer   and message should go to all such officers who are in habit of showing apathy towards  their duties that they may be held personally responsible to compensate the person who has suffered loss.

In view of above discussion, it is held that the petitioner is not entitled  for the relief (a) and (b), but entitled to the relief (c) and (d) as indicated above.  The writ petition is partly allowed. The petitioner is entitled to the following relief. :-

(i) The service rendered by the petitioner in the Irrigation Department  shall be counted in the service of the petitioner rendered with respondent Corporation for payment of pension and other post retrial benefits as provided by the Circular dated 27th October, 1995.

(ii) The petitioner shall be entitled to receive the balance admitted amount with interest thereon at 12% per annum for the period as indicated above.

In view of the above divided success of the parties no order as to cost.

Dt. November     2006



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