Smt. Kamlesh vs Govt. Of Nct & Anr.
2015 Latest Caselaw 3139 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.3898/2015

%                                                           20th April, 2015

SMT. KAMLESH                                              ..... Petitioner
                          Through:       Mr. Ajay Dabas, Advocate.

                          Versus

GOVT. OF NCT & ANR.                                        ..... Respondents

                  Through:               Mr. Jayendra, Advocate for
                                         respondent No.1.
                                         Mr. Sujit Kumar Singh, Advocate for
                                         respondent No.2.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

C.M. No.6962/2015 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

+ W.P.(C) No.3898/2015 and C.M. No.6961/2015 (stay)

2. By this writ petition filed under Article 226 of the Constitution

of India, the petitioner who in the year 1996 got compassionate appointment

with Delhi Electric Supply Undertaking (DESU), now represented by the

respondent no.2/Tata Power Delhi Distribution Ltd, which is the successor

entity, impugns the action of the respondent no.2 in taking her year of birth

as 1955 and not 1959 as the petitioner claims, and thus retiring the petitioner

on 31.3.2015.

3. I note that there were earlier legal proceedings between the parties as

a result whereof pursuant to orders of this Court, a medical board was

constituted, and this medical board gave its report in the year 2011 showing

that as in the year 2011 petitioner would be of 50 years plus or minus five

years i.e there was no certainty as to the exact year of birth of the petitioner

and petitioner should be either 50 years or 55 years or 45 years at the time

when the medical report was prepared. Therefore, this medical report was

not conclusive with respect to the date of birth of the petitioner being 1959

as claimed by the petitioner.

4. In fact, during the hearing of the case counsel for the petitioner has

drawn the attention of this Court to the ration card of the petitioner's family

filed at pages 74 and 75 of the paper book and which itself shows that in the

year 1988 petitioner's age was 33 years. Therefore, if in the year 1988

petitioner was 33 years of age, the year of birth of the petitioner would be

1955, as per the ration card document of the petitioner herself.

5. Petitioner has already retired on 31.3.2015 and since there is no

clinching evidence in favour of the petitioner and in fact there are disputed

questions of facts, hence this Court under Article 226 of the Constitution of

India cannot grant the relief by holding that the petitioner's year of birth is

1959 and not 1955 and which later year was stated by the petitioner herself

at the time of getting compassionate appointment and as also confirmed in

the public record being the ration card as stated above.

6. Counsel for the petitioner points out a document at page 71

being the pension papers issued by the erstwhile Delhi Electricity Supply

Undertaking (DESU) and with whom petitioner had got compassionate

appointment in the year 1996 showing the year of birth of petitioner as 1959.

7. I find that there are disputed questions of facts which require

trial in this case and therefore the writ petition is not an appropriate remedy.

Accordingly, while dismissing this writ petition liberty is given to the

petitioner to file a suit for claiming the reliefs which are claimed in this writ

petition. Writ petition is accordingly dismissed subject to the aforesaid

observations.

APRIL 20, 2015                                      VALMIKI J. MEHTA, J
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