- (1.) SUNIL Ambwani, J. Heard counsel for petitioner and learned Standing Counsel for respondents. Brief facts giving rise to this writ petition are that the petitioner was appointed as Assistant Clerk/librarian in Government District Library, Varanasi on 14-8-1959. Initially the post was in education department. Subsequently the department concerned was governed by the State Government and thus the petitioner became a State Government employee. A notice of retirement was given to the petitioner on 4-7-1997 by which he was informed that his date of birth is 1-10-1939 and that he will be retired on 30-9-1997. The petitioner was relieved on that date.
(2.) THE petitioner filed Writ Petition No. 26830/1997 challenging the age of superannuation and prayed for extending the retirement age for a further period of two years, as provided by service Rules applicable to education department. In the counter affidavit filed on behalf of respondents, it was alleged that the petitioner's date of birth is 1-10-1936 and not 1-10-1939. While dismissing the writ petition, this Court observed in its order dated 9-11-1998 that since the petitioner had worked upto 1997, on account of an entry in his service book, the salary drawn by him shall not be recovered and his retirement benefits including pension shall be determined by taking into consideration the three year's additional services rendered by him. THE District Inspector of Schools filed a Special Appeal No. 1093/2001 against the aforesaid order dated 9-11-1998. THE delay was condoned but the stay application was rejected on 30-10-2001. A contempt Petition was filed by the petitioner for compliance of the order dated 9-11-1998 in which notices have been issued. THE petitioner is receiving only provisional pension, so far and has filed this writ petition for writ of mandamus directing the respondents to pay full pension to the petitioner in accordance with law and to release all retiral benefits payable to him along with difference in between provisional pension and full pension with interest at the rate of 18%. THE petitioner is getting provisional pension. In the counter affidavit of Sri Chandrajeet Singh Yadav, District Inspector of Schools, Varanasi it is stated that the petitioner had appeared in the high school examination in the year 1952 with Roll No. 104991. In the certificate his date of birth is recorded as 1-10-1936. The petitioner has not denied this fact. The petitioner, however, continued to work even after 30-9-1994 upto 30-9-1997. The Special Appeal is pending for consideration against the order dated 9-11-1998 by which the petitioner was allowed to keep benefits of additional services and for shifting his date of retirement till he had worked. In para-7 of the counter affidavit, it is stated that the petitioner had actually handed over charge of post of Librarian after he was given a letter on 3-6-1998. It is also alleged that the petitioner has constructed a house on the Government land belonging to the Library in an illegal and unauthorised manner. He has also not handed over charge of the articles of library and according to the audit report a sum of Rs. 48,000/-is to be paid by him. The Court is surprised as to how the petitioner manipulated to continue to serve as librarian upto 1998. As a Government servant, and the date of birth admitted to him in the High School certificate he was to superannuate on 30-9-1994. It is apparent that a wrong date of birth was entered in his service book. The Writ Petition No. 26850/1997 was dismissed. The observations made in the judgment only permitted him to keep the amount of salary paid to him upto 30-9-1997. The Court while dismissing the writ petition could not have added the three year's service to be counted for pensionary benefits. Such an observation apparently was per incuriam, in ignorance and in violation of Fundamental Rule 56 which provides the retirement age to be 58 years, and Rule 3 of the U. P. Recruitment to Service (Determination of Date of Birth) Rules 1974 which provide that the date of birth entered in the High School certificate shall be deemed to be conclusive for all purposes, if the employee had passed High School examination before joining the service.
(3.) THE petitioner had initially disputed his date of birth but it appears that after a confirmation was received from U. P. Secondary Education Board, he gave up the plea and admitted that the date of birth recorded in the High School certificate is correct. The audit report has found that the petitioner is required to pay Rs. 48000/-towards the shortage of articles of library. The petitioner has constructed a house on the Government land. A report was submitted by the office of Finance and Accounts Officer/funds Controller/additional Director of Education, annexed as Annexure 8 to the writ petition in which these objections have been highlighted. Proceedings were initiated by the Revenue Department against the petitioner for eviction from the Government land. The petitioner has claimed that the house belongs to wife Smt. Suman Bala daughter of Sambhu Narain but is not in a position to produce or rely upon any document of title over the land. With regard to handing over the articles of the library, it is submitted that the list of articles handed over by the petitioner is not available and that no stock register is available to establish the allegations against the petitioner.;