- (1.) Petitioner joined as a driver in the Punjab Home Guards on 1.10. 1986. He is an Ex-serviceman who had served in the Army prior to joining the civil employment.
(2.) It is the petitioner's case that his services were wrongly terminated in the year 1986. He challenged this order of termination in Civil Court at Gurdaspur wherein he succeeded and the order of termination was set aside. He was reinstated and continued in service till he was prematurely retired on account of week eye sight on 3.8.1999. He filed Civil Writ Petition No. 14912 of 1999 challenging the order of premature retirement and also prayed for an alternative appointment. The said writ petition was decided on 16.1.2002 by this Court by passing the following order :- "No exception can be made to the order of retirement of the petitioner on account of weak eye-sight, being a driver. We have gone through the pleadings of the parties. In our view, it will be appropriate to accommodate the petitioner for an alternative job, if permissible under the, law. That being so, the only direction that we issue in this case is that the Government shall consider the case of the petitioner for alternative appointment in accordance with rules. Let this exercise be done within two months from today." The petitioner claims that as a result of the order passed by this Court reproduced above, he was reinstated on 10.4.2002 against the post of driver. He continued as such upto 13.9.2002 when an order was made retiring him w.e.f. 28.2.2002. The said order is reproduced hereunder :- "In compliance with the order dated 16.1.2002 passed by the Punjab & Haryana High Court and in compliance with the letter dated 21.1.2002, issued by the Department of Home & Justice, you have been reinstated after pre-mature retirement and you joined the department on 17.4.2002. After this, your service book was examined on 3.7.2002. In the Service Book, your Date of Birth recorded under your signature is 20.4.1945, however, no certificate of the Date of Birth has been attached. On that very day, you were asked to give the proof of it so that by affixing its copy in the Service record, the service record could be completed. Regarding this, a letter No. E- 4/PHG/02/2322 dated 3.7.2002 was issued, but you have not given any proof of your Date of Birth and gave reply in writing on 5.7.2002 that you do not have any certificate regarding it. You are an ex-serviceman, therefore, you were asked to present the Discharge Book which was presented by you and a copy of the Discharge Book after verification was kept in record in which your Date of Birth is recorded as 5.2.1944. You are also informed that there is 14 months difference between the recorded Date of Birth in service book and Date of Birth recorded in the Discharge Certificate. You could not explain anything. It is a serious matter. Then the matter was brought in the knowledge of the Divisional Commander, P.H.G., Jalandhar who is the competent authority to take a decision on it. After taking a decision, a letter No. PHG/02/7/20747 dated 12.9.2002 was attached mentioning that Sh. Santokh Singh was appointed as Driver against reserved category on the basis of his Military Qualification and Date of Birth. Because according to the academic certificate produced by you, your Date of Birth is recorded as 20.4.1945. In view of this, you could not be appointed because you were over aged according to the rules. Therefore, you were appointed Driver by keeping in view the military certificate as correct. Therefore, your retirement is to be made on the basis of the Date of Birth entered in the Army Discharge Certificate. Therefore, in view of the directions of the Hon'ble Director General of Police-cum-Commandant General, Punjab Home Guards and Director Civil Defence, Punjab, Chandigarh, you have completed 58 years of age on 4.2.2002 on the basis of your Date of Birth dated 5.2.1944 recorded in the Army Discharge Certificate and you have been retired on 28.2.2002 under the Rules." A reading of this order would show that even though the date of birth of the petitioner in the service book was recorded as 20.04.1945, however, no certificate of date of birth was attached. The petitioner was asked td supply the proof vide letter dated 3.7.2002, to which he replied on 5.7.2002 that he did not have any proof/certificate. On this, since he was an Ex-serviceman he was asked to produce his discharge certificate. In the discharge certificate his date of birth was recorded as 5.2.1944 and it was on this basis that he was retired on the date when he completed 58 years and attained the age of superannuation as per the date of birth recorded in the discharge certificate. The petitioner has, therefore, filed this writ petition being aggrieved against the order dated 13.9.2002 vide which he had been retired w.e.f. 28.2.2002.
(3.) The respondent-State has filed a written statement. In the written statement, it has been stated that the petitioner had earlier filed three civil suits in the Civil Court at Gurdaspur. The first was Civil Suit No. 90 dated 28.7.2000 filed in the Court of Civil Judge, Gurdaspur claiming salary and other benefits from August, 1999 to September, 1999 which was dismissed with costs on 16.3.2004. The second was Civil Suit No. 112 dated 24.7.2002 filed in the Court of Civil Judge, Gurdaspur for permanent injunction restraining defendant No. 3 (Battalion Commander) from interfering, causing any hindrance or obstructing the plaintiff (petitioner) in performance of his duty as driver. This suit was dismissed with cost on 4.12.2003. The learned Judge in his judgment has also stated that the petitioner has been rightly retired on 28.2.2002 and has held the order of his retirement as legal and valid and the third was Civil Suit No. 466 dated 19.9.2002 filed in the Court of Civil Judge, Gurdaspur for joining on duty, grant of pay/other benefits was dismissed as withdrawn by him on 6.5.2004. It has further been stated that since there was no certificate/proof of the date of birth of the petitioner in his service book, the proof was demanded from the petitioner vide letter dated 3.7.2002. The petitioner was, however, unable to produce any proof and intimated the respondents that he has no proof regarding his date of birth. On this, he was asked to produce his military discharge certificate. When he produced the same, it transpired that his date of birth was 5.2.1944. The matter was placed before the Head of the Department and it was decided that the petitioner should be retired with effect from the date he attained the age of superannuation, taking his date of birth to be 5.2.1944. Hence, the order was passed retiring him w.e.f. 28.2.2002.;