Dafedar Ram Singh vs Union Of India And Ors.
2008 Latest Caselaw 1966 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI



%                               Date of decision:6.11.2008


+      WPC No. 3552/1989


       DAFEDAR RAM SINGH                     ..........Petitioner
                     Through: Mr.M.G.Kapoor, Advocate


                                    Versus


       UNION OF INDIA & ORS.                    .........Respondents

                      Through:       Ms.Sonia Mathur, Adv. with
                                     Mr.Pankaj Pasad, Adv. with
                                     Maj. S.S.Pandey.


     CORAM:
     HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
     HON'BLE MR. JUSTICE MOOL CHAND GARG


1.     Whether the Reporters of local papers
       may be allowed to see the judgment?            No

2.     To be referred to Reporter or not?             No

3.     Whether the judgment should be                 No
       reported in the Digest?


SANJAY KISHAN KAUL,J (ORAL).

1. The petitioner was initially enrolled in the Territorial Army on

13.1.1965 and was subsequently re-enrolled in the KUMAON Regiment of the

Regular Army on 28.2.1966. The petitioner was re-mustered in the Armoured

Corps in June, 1968. The petitioner earned his promotion as a Dafadar on

1.1.1982 and as per the petitioner was entitled for a further promotion to a

Naib Risaldar. The vacancy for the Naib Risaldar arose on 18.1.1989 and a

proposal was stated to have been sent in February/March on 1989. This

proposal was, however, not accepted by the Records Office on account of the

fact that the date of birth of the petitioner was 13.1.1947 and the petitioner

was, thus, over age by 5 days. The petitioner made a representation to the

Records Office on 5.6.1989 followed up by a statutory complaint dated

11.7.1989. There was no result and the petitioner was discharged on

20.7.1989 retrospectively from 30.6.1989. The statutory complaint filed by

the petitioner was returned as unattended on 27.7.1989. The petitioner

thereafter filed the present writ petition.

2. The controversy in the present case revolves around the date of

birth of the petitioner. The date of birth of the petitioner is recorded as

13.1.1947 at the time of enrollment in the Territorial Army on the basis of his

apparent age as the petitioner had not produced any document in proof of

his age. However, at the stage when the petitioner got re-enrolled in the

Regular Army soon thereafter on 28.2.1966 the date of birth is recorded as

7.4.1947, that too also as apparent age. It may be noted that the case of the

petitioner is that his age should have been recorded as 7.4.1948 but there

are over-writings in the record to show that it was 7.4.1947. This date of

7.4.1947 is recorded in not only the records at the stage of the regular

enrollment of the petitioner in the Army but also in various service

documents including pay book, identity card, service and casualty form,

sheet roll etc.

3. The facts set out by the petitioner in the statutory complaint

show that the petitioner was advised to produce his school leaving certificate

(hereinafter referred to as SLC), if any. The petitioner did produce an SLC

showing the date of birth as 2.6.1948. However, the fact remains that the

record was never corrected.

4. In the counter affidavit in the present writ petition there was a

categorical denial by one Capt. J.R. Yadav, Record Officer, Armoured Corps to

the effect that the petitioner had never produced the SLC. This was found

contrary to the record as the petitioner produced the original letter dated

18.8.1989 received by him from the Record Office returning the SLC to the

petitioner. The directions were thus passed on 6.3.2002 for Capt. J.R. Yadav

to remain present and file his affidavit. The said Capt. J.R. Yadav had sought

to explain the position by stating that when he looked at the record the SLC

was not there and he was not aware that the same had been returned back

to the petitioner. To say the least, this explanation is unsatisfactory. It was

the duty of the Record Office to have correctly checked the records.

5. We have had the benefit of seeing the original record produced

before us where the comments of the Department in relation to the statutory

complaint of the petitioner are available even though the statutory complaint

was returned unattended. This is one more unfortunate incident in the

present case as it was the duty of the concerned officer to have dealt with

the statutory complaint of the petitioner to come to a conclusion as to what

should be the correct date of birth and the consequence thereof. The

comments show that there was no entry existing in the field service

documents relating to the enrollment of the petitioner with the Territorial

Army. This would show that there is no proof of the date of birth of

13.1.1947 even as recorded with the respondents and the respondents have

throughout proceeded on the basis of the date of birth of 7.4.1947.

6. In our considered view the most material aspect is that the

respondents themselves have accepted the date of birth as 7.4.1947 and

there is nothing to show that the petitioner was older than that age. The

only question was whether the date of birth of the petitioner was required to

be corrected when he produced the SLC which after due verification was

returned to the petitioner. Since the SLC was called for and verified,

normally the date of birth at that stage ought to have been corrected to the

one set out in the SLC of 2.6.1948. We are not required to delve further into

this matter for the reason that in so far the grievance of the petitioner is

concerned, even if the date of birth of the petitioner is taken as 7.4.1947

which was recorded with the respondent, the petitioner was not over age at

the relevant date for promotion to the post of Naib Risaldar.

7. The result of the aforesaid is that the petitioner has been

improperly deprived of his promotion to the post of Naib Risaldar and further

promotions subject to fitness. Petitioner was entitled to serve further till the

date specified for retirement as Naib Risaldar.

8. The question of further promotions of the petitioner would,

however, have been dependent on the fitness of the petitioner and in

assessing as to what relief ought to be granted to the petitioner, certain

uncertainties have to be kept in mind. We, thus, consider it appropriate to

direct that the petitioner should be treated as having continuity in service till

the retirement age of a Naib Risaldar and would be entitled to pay and

allowances for the period he has been unable to serve due to the illegal

action of the respondent. We are not granting any further relief in respect of

any additional promotion which could have come the way of the petitioner if

he had actually served as Naib Risaldar but we have balanced the equities

by granting full pay and allowances to the petitioner for the period which he

would have served as a Naib Risaldar even though he has not actually

served for the said period. The pension of the petitioner would naturally

have to be revised in the rank of Naib Risaldar.

9. A writ of mandamus is issued directing the respondents to treat

the petitioner as having retired from service as a Naib Risaldar at the age

specified for such retirement taking the date of birth of the petitioner as

7.4.1947 and to re-work out the pensionary benefits of the petitioner to the

post of Naib Risaldar taking into consideration the extended service for the

said post. The arrears be remitted to the petitioner within a maximum

period of 3 months.

10. The petition is allowed in terms aforesaid with costs quantified

at Rs.5000/-.

SANJAY KISHAN KAUL,J

MOOL CHAND GARG,J NOVEMBER 06, 2008 vg