- (1.) SUDHIR Agarwal, J. Heard Dr. Dharmesh Chaturvedi, learned Counsel for the petitioner and Sri R. K. Tiwari, learned Standing Counsel for the respondents.
(2.) THE grievance of the petitioner is that his date of birth was admitted by the respondents as 15-12- 1942 yet illegally he was earlier retired on 30-4-1999 and thereafter accepting error in retiring him premature, he was treated in service and paid arrears only up to 30-6-2000 though he was entitled for payment of salary till 31-12-2000. He further contended that he is working in the work charge establishment since 1984 and was regularized in the year 1996, therefore is entitled for retiral benefits having worked for more than 10 years and reliance is placed on a Single Judge judgment of this Court in Ram Pratap Shukla v. State of U. P. & Ors. , 2006 (2) LBESR 492 (All) : 2006 (4) ADJ 709. On the contrary learned Standing Counsel contended that the work charge service does not qualify for pension and therefore the petitioner is not entitled for pensionary benefits having rendered service of less than 10 years after his appointment on regular establishment. He further contended that since there was a doubt over his correct date of birth, therefore, as per the provisions of the PWD Manual and Government Order No. 41/2/69/niyukti (Kha), dated 20-8-1971 his date of birth was treated as 1-7-1942 and therefore he was retired on 30-6-2000 and all the dues payable to him had already been paid as detailed in para 8 of the counter-affidavit. I have heard learned Counsel for the parties and perused the record. The facts, which are undisputed, as emerged from the respective pleadings are that the petitioner was engaged as Jeep Driver in work charge establishment under Provincial Division, PWD, Mainpuri on 1-5-1984. Vide order dated 16-4- 1996 passed by the Superintending Engineer Etah/mainpuri Circle PWD, Agra he was appointed on regular establishment though on temporary basis in the pay scale of Rs. 950-1500. The medical report submitted by the C. M. O. , Mainpuri on 1-5-1996 verifying his fitness mentions his age approximately as 55 years. The Executive Engineer on the basis of the said report treated his date of birth as 1-5-1941 and accordingly vide order dated 18-8-1999 notified his date of retirement as 30-4-1999. The petitioner represented against the aforesaid order of retirement claiming that his correct date of birth is 15-12- 1942 which was already mentioned in various records of the department including seniority list and challenged his retirement w. e. f. 30-4-1999. It appears that an inquiry was made into the complaint of the petitioner whereafter the Senior Staff Officer in the office of Engineer-in-Chief, U. P. , PWD, Lucknow vide order dated 18-11-2000 informed the Executive Engineer, Provincial Division, PWD, Mainpuri that the correct date of birth of the petitioner is 15-12-1942 and therefore for the loss suffered, if any, by the petitioner, he should be compensated and appropriate action be taken accordingly. The aforesaid letter has been placed on record as Annexure-5 to the writ petition. Again a letter dated 20-6-2001 was issued by the office of Engineer-in-Chief, U. P. , Lucknow directing Executive Engineer concerned to make necessary payment to the petitioner at the earliest. However, the Executive Engineer even thereafter proceed to treat date of birth of petitioner as not known and on the basis of report of C. M. O. , Mainpuri, acted under Article 14 of Civil Service Regulations (in short 'csr') read with Government Order dated 20- 8-1971 and taking his date of birth as 1-7-1942 treated him to have retired on 30-6-2000 and passed order for payment of arrears of salary till June, 2000 only. The petitioner even thereafter represented for payment of salary for the period of July, 2000 to December, 2000 but no action has been taken by the respondents whereafter the present petition has been filed. From the aforesaid pleadings and record it appears that the Executive Engineer after regular appointment of the petitioner mentioned his date of birth on the basis of the medical certificate without any information or notice to the petitioner. On the representation made by him it is also not disputed that an inquiry has been conducted by the higher authorities wherein the correct date of birth of the petitioner has been found to be 15-12-1942. The letter of the Engineer-in-Chief placed on record as Annexure-5 to the writ petition has not been disputed by the respondents in the counter-affidavit and it is evident therefrom that on inquiry the correct date of birth of the petitioner was found 15-12-1942 and the said finding arrived thereunder has not been disputed. Even a subsequent inquiry appears to have been conducted by the Assistant Engineer under the order of the Executive Engineer and his report has been placed on record as Annexure-3 to the counter-affidavit wherein also it is mentioned that the correct date of birth of the petitioner is 15-12-1942. In this view of the matter particularly after the order of Engineer in Chief dated 18-11-2000 which categorically stated that the correct date of birth of the petitioner is 15-12-1942 and issued directions to the Executive Engineer to make payment of the due amount to the petitioner, in my view it was not open to any subordinate authority to take a view different thereof and therefore the petitioner was entitled to continue in service till 31-12-2000 and for payment of salary till then. The order of the Senior Staff Officer office of the Engineer-in-Chief does not admit of any ambiguity and is reproduced hereunder :
(3.) IT is not the case of the respondents that the aforesaid letter is forged or fictitious or has not been issued by the office of the Engineer-in-Chief. That being so, in my view, it was not open to an authority subordinate to the Engineer in Chief to take a different view and not to make payment of salary to the petitioner treating him as retired on 31-12-2000. Regulation 14 of CSR and the Government Order dated 20-8-1971 therefore in the facts and circumstances of the case have no application at all and the Executive Engineer has clearly erred in law by purporting to exercise his powers thereunder. The date of birth of the petitioner was correctly known to the authorities and on the inquiry made by them it was found 15-12-1942 and therefore the said provisions have no application. Now coming to the second aspect of the matter regarding post retiral benefits, in my view the petitioner having been brought on the regular establishment only on 16-4-1996, if his service is counted till 31-12-2000, it is only 4 years and 8 months and odd which is much less than the minimum 10 years of service which would qualify for pensionary benefits and therefore he is not entitled for any pension. The submission of the learned Counsel for the petitioner that the service rendered in work charge establishment would also qualify for pension does not merit any substance for the reason that Article 370 of CSR expressly exclude any service rendered in a work charge establishment from qualifying service. Article 370 of CSR is reproduced as under: "370. Continuous temporary or officiating service under the Government of Uttar Pradesh followed without interruptions by confirmation in the same or any other post shall qualify except - (i) periods of temporary or officiating service in non- pensionable establishment; (ii) periods of service in work-charged establishment; and (iii) periods of service in a post paid from contingencies. ";