(1.) Present petition has been filed by the petitioner for the following reliefs:
I. Issue a writ, rule order or directions in the nature of certiorari calling for records and quashing the certificate issued by Gram Panchayat Adhikari dated 18.01.03 and reply letter dated 27.10.05 (Annexure-4) issued by the respondent no. 3 and further to quash so called exparte inquiry as alleged in the said letter.
II. Issue a writ, rule order or direction in the nature of mandamus commanding and directing the respondents to release petitioner's post retiral benefits including pension, gratuity etc. forthwith including the arrears of said benefits accrued to the petitioner from the date of his retirement i.e. 31.12.02 with 12% interest per annum and further to direct the respondents to keep on making regular payment of post retiral benefits to petitioner month by month or as and when they fall due.
III. Issue any other order or direction, which this Hon'ble Court may deem fit and proper under the circumstances of the case.
IV. Award cost of the petition in favour of the petitioner.
Brief facts of the case, as narrated in the writ petition, are that petitioner was appointed as Jeep Driver on ad-hoc basis on 01.12.1983 in U.P. Jal Nigam (now Uttarakhand Pey Jal Nigam). At the time of his appointment, the date of birth of the petitioner was recorded as 22.12.1948. Subsequently, the services of the petitioner were regularized on the post of Work Supervisor in the year, 1989. The correct date of birth of the petitioner is 22.12.1944. Having knowledge of the fact that his date of birth has wrongly entered in the service book as 22.12.1948, the petitioner moved to the authorities to correct his date of birth from 22.12.1948 to 22.12.1944 in his service book. The competent authority, after looking into the documents produced by the petitioner at the time of his regularization, corrected the date of birth of the petitioner as 22.12.1944 in his service book. On the basis of this corrected date of birth, the petitioner was superannuated on his completing 58 years of age. After his retirement, the petitioner submitted all required documents for release of his post retiral benefits. The petitioner also submitted a copy of the Family Register for the purpose of completing the formalities. In the said Family Register, the date of birth of the petitioner was wrongly shown as 1936. Respondents, on the basis of the date of birth shown in the Family Register, withheld the pension and other retiral benefits of the petitioner. The petitioner submitted several representations before the respondent authorities for release of his post retiral benefits. In his representation, the petitioner submitted that the said Family Register, which was submitted by the petitioner before the authorities, was issued after his retirement and it was just for the verification of the family members of the petitioner. The date of birth entered in the Family Register of the petitioner was not correct at all, as such, entry which was made on the basis of speculation cannot be looked into for the purpose of the retirement of the petitioner. It was also mentioned in the representation of the petitioner that it is evident from looking into the date of birth entries mentioned in the Family Register that the date of birth of petitioner's son Balam Singh has been written as 1963 and date of birth of his grandson has been written as 19.06.1970, thus, the difference between the date of birth of father and son is only 7 years, therefore, such entries in Family Register are not reliable.
(2.) The respondent no. 3 filed counter affidavit and supplementary counter affidavit. He, in his counter affidavit, has submitted that at the time of entering the service, the petitioner mentioned his date of birth as 22.12.1948. The respondent no. 3, after the retirement of the petitioner, for the purpose of grant of pensionary benefits, enquired about the dependents of the petitioner. The petitioner submitted a certificate in which details of his dependants and their date of birth was mentioned. In the date of birth of the petitioner, some interpolation was found which created doubt and the respondents enquired into the matter. It was also found that if the date of birth of the petitioner stated in the Family Register is considered, then in that event, the petitioner has worked 8 years in excess, therefore, a First Information Report was registered on 25.04.2003. It is also mentioned in the counter affidavit that the question of date of birth involves disputed question of fact, which cannot be dealt with under Article 226 of the Constitution of India and the petition is not maintainable and is liable to be dismissed. In paragraph 4 & 5 of the counter affidavit filed by respondent no. 3, it is mentioned that the respondent no. 3 also asked the Village Development Officer, Tilwara to supply a copy of the Family Register mentioning the date of birth of the petitioner, so that the pensionary benefits may be computed in favour of the petitioner. The date of birth of the petitioner mentioned in the copy of the Family Register was shown as 1936. It is also mentioned in the counter affidavit that since the respondents have evidence regarding date of birth of the petitioner in the year 1936, no retiral dues can be paid to the petitioner. Paragraph nos. 4 & 5 of the counter affidavit are being reproduced below:
(4) That the contents of Paragraph nos.-3, 4 and 5 of the writ petition are incorrect, misconceived hence vehemently denied. The deponent states that at the initial time of service of the respondents the petitioner mentioned the date of birth 22.12.1948. The respondent no. -3 enquired with regard about the dependence of the petitioner for the purpose of paying the pensionary benefits. Consequently, the petitioner submitted a certificate stating the details of dependant and their date of birth. In the date of birth of petitioner, there was interpolation therefore a doubt was created and thus the respondents enquired into the matter.
If the date of birth stated in Family Register is considered then in that case the petitioner has worked 8 years in excess. In view of aforesaid facts and circumstances the department has no option but to lodge FIR dated 25.04.2003. A copy of the FIR is being filed herewith and marked as Annexure no. -1 to this Counter Affidavit.
Initially the matter was reported to Patwari on dated 25.4.2003 and thereafter at present the matter is before the regular Police. The question of date of birth involves disputed question of fact which cannot be gone through in exercise of before under article 226 of the Constitution of India. The writ petition is not maintainable and is liable to be dismissed.
The respondent no. -3 further vide letter dated 10.1.2003 wrote to Village Development Officer, Tilwara and requested to supply a copy of the Family Register in which the date of birth of petitioner is mentioned so that the pensionary benefits may be computed in favour of the petitioner. A copy of the letter 10.1.2003 written by respondent no. -3 to Village Development Officer, Tilwara is being filed herewith and marked as Annexure no. -2 to this Counter Affidavit.
Subsequently a copy of the Family Register which mentions the date of birth of the petitioner was supplied to respondent no. -3 by the said Village Development Officer. A perusal of family register reveals that the date of birth of the petitioner is 1936. A copy of the Family Register which mentions the date of birth of the petitioner is being filed herewith and marked as Annexure no. -3 to this Counter Affidavit.
(5) That with regard to the contents of Paragraph nos.-6 and 7 of the Writ Petition it is stated that certificate of Village Development Officer, Tilwara dated 7.1.2003 contains interpolation as regard the date of birth of the petitioner and most importantly it is not open for the petitioner at the fact of his service to allege that he has different date of birth. Since the respondents had credential evidence against the petitioner with regard that his date of birth is in the year 1936 as such no retiral dues at present can be paid to the petitioner. Assertion made to the contrary are denied.
(3.) In his additional counter affidavit, the respondent no. 3 has admitted that at the time of entering the service, the date of birth of the petitioner was entered as 22.12.1948. It is also admitted in the additional counter affidavit that on 06.09.2002, the petitioner wrote to the Executive Engineer, Construction Division, Uttarakhand Pey Jal Nigam, Rudraprayag, annexing a copy of the certificate issued by the Gram Panchayat, Sandar for correction of date of birth. In the said certificate, the date of birth of the petitioner was mentioned as 22.12.1944. On the basis of the letter written by the petitioner and certificate issued by the Gram Panchayat, Sandar, the documents regarding date of birth was corrected. It is also mentioned in the additional counter affidavit that after the retirement of the petitioner, the Gram Vikas Adhikari, Tilwara issued date of birth certificate on 18.01.2003, in which the date of birth of the petitioner was mentioned as 1936. Thus, the respondents came to the conclusion that petitioner had played fraud with the department and submitted a forged date of birth certificate at the time of induction in service and due to this reason, the post retiral dues of the petitioner have not been released. The petitioner also submitted medical certificate issued by the Chief Medical Officer in the year 1991, in which the age of the petitioner was shown as 48 years. The respondent no. 3, in his additional counter affidavit, further submitted that the alleged certificate of the Chief Medical Officer cannot be relied upon and the Jal Nigam is not liable to pay any pension, gratuity or provident fund to the petitioner, as he has not completed the qualifying service and has worked 8 years in excess.;