Allahabad High Court
Smt. Tara Devi vs State Of U.P. And Others on 6 May, 2013
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 30
Case :- WRIT - A No. - 8117 of 2011
Petitioner :- Smt. Tara Devi
Respondent :- State Of U.P. And Others
Petitioner Counsel :- Rajendra Prasad,Dinesh Rai
Respondent Counsel :- C. S. C.,J.N. Maurya
Hon'ble Amreshwar Pratap Sahi,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the respondent no. 1. A counter affidavit has been filed by Sri J.N. Maurya for the respondent Basic Shiksha Parishad who has also been heard.
The writ petition has been filed for quashing of the orders dated 28.12.2010 and 25.8.2010 whereby the petitioner has been treated to have retired from service in 2009 as per the date of birth recorded in the service record as 16.8.1949.
The contention of the petitioner is that this date of birth is wrongly recorded and that the correct date of birth of the petitioner is 16.8.1951. To support the stand, the petitioner contends that this date of birth has been verified by the respondents themselves in the G.P.F. Account Book and the Insurance Papers and as such they cannot take a different stand. Learned counsel further submits that the date of birth was informed to the petitioner as 1951 and that the petitioner accordingly would have retired in 2011 and not in 2009.
The petitioner was served with a notice of retirement on 25.8.2010 indicating that she has attained her age of superannuation on 16.8.2009 treating her date of birth as 16.8.1949 as recorded in the service record.
A further direction was issued for refund of the salary that was paid to her after 16.8.2009 upto the date of the passing of the impugned order.
It is this order which has been assailed in the present writ petition contending that there was no fault on the part of the petitioner nor there was any fraud or misrepresentation and as such this direction to recover salary is beyond the authority of the respondents.
The petition was entertained and an interim order was passed on 14.2.2011 directing the respondents not to recover the excess amount said to have been paid to the petitioner.
A counter affidavit has been filed on behalf of the respondents and the stand taken is that as per the entries in the service book of the petitioner, she had attained the age of 60 years on 16.8.2009, and therefore, she was not entitled to continue on the post nor entitled for salary. Any amount paid to her accordingly was rightly directed to be recovered.
The counter affidavit also brings on record the medical certificate on the basis whereof the service record indicates the date of birth as 16.8.1949.
On the issue of medical certificate, learned counsel for the petitioner contends that the petitioner was aged about 30 years as on 16.8.1979. It is urged that the word "about" as indicated in the said certificate can also be read to mean less than 30 years and which according to the petitioner could be read as 28 years. It is therefore urged that the medical certificate has been wrongly construed and the date of birth has wrongly recorded.
Having heard learned counsel for the parties, in the opinion of the court, the date of birth which has been recorded in the service book is after the medical examination of the petitioner herself way back in 1979. She has not challenged the said medical certificate or the contents thereof. Her service book was prepared in 1979 indicating her date of birth as 16.8.1949.
The petitioner does not appear to have tendered any evidence of her date of birth as 1951 when her service record was prepared several decades ago. In such circumstances, the recording of a date of birth in the G.P.F. Account Papers and Insurance Papers will not come to her aid, inasmuch as, the service record is the only record on the basis whereof the correct date of birth and its presumption can be raised. The rules in this regard are absolutely clear in so far as government service is concerned where the Determination of Date of Birth Rules has been framed and clearly provide that the service record date of birth shall be treated to be final. The contention for reading the word "about" so as to lower down the age cannot be countenanced as the said word qualifies the proximity of a higher age of 30 years and not lower down of 28 years. The word "about" progressively indicates nearness to 30 and not to a lesser age of 28 years.
Even otherwise, once the date of birth had been recorded as 16.8.2009 several decades ago without any challenge being raised by the petitioner, then she cannot alter the same or pray for reconsideration thereof at the fag end of her career. The service record therefore should be treated to be final for the said purposes and accordingly it is held that the date of birth as recorded in the service record is correct. The petitioner would therefore be entitled to retiral benefits treating her date of birth 16.8.1949.
So far as the excess payment is concerned, learned counsel for the petitioner is right in his submission that there was no fraud or misrepresentation on the part of the petitioner.
It is the respondents who continued the petitioner and took work from her and paid her salary. She did not misrepresent her date of birth nor is there any such charge against her. In the circumstances, the salary paid to her cannot be recovered and accordingly the impugned order dated 25.8.2010 to that extent has to be modified. The direction for any recovery as contained in the subsequent order dated 28.12.2010 also cannot stand the scrutiny of law.
The petition is therefore partly allowed with a declaration that the date of birth of the petitioner shall be treated as 16.8.1949. The impugned order for recovery of the alleged excess payment stands set aside.
The claim of the petitioner of pension and other post retiral benefits shall be calculated accordingly and her documents shall be prepared and the amount that she is entitled to receive shall be released within three months.
Order Date :- 6.5.2013
Sahu
