Shabihul Hasnain, J.@mdashHeard Sri Virendra Singh, learned Counsel for the petitioner and the learned standing Counsel.
The prayer of the petitioner is two folds; firstly that the date of birth be corrected from 1.7.1949 to 26.8.1949 and consequently he may be allowed pensionary benefits. The petitioner''s services were regularized on 9.7.1999. His argument is that if the date of birth is not changed, the regular services of the petitioner will not count to ten years and it will be short by nine days. The petitioner has been retired on 30.6. 2009.
2. Learned standing Counsel has prayed that he may be allowed to file counter- affidavit.
3. Learned Counsel for the petitioner says that he has come before this Court challenging the rejection order passed on his representation as directed in pursuance of the High Court''s orders. He argues that all the factual position and the dates have already come in the rejection order. The counter- affidavit cannot make any improvement on the admitted facts. The petitioner is a retired person and he is not getting the pension. Only the legal question is being raised in this writ petition. Asking for a counter- affidavit will only delay the matter as no factual dispute can be made by the opposite parties. Necessary facts are already on record. He argues that the petition may be decided itself, on the basis of legal argument. Considering the exigencies of the matter, the Court feels that no counter- affidavit is required.
4. Accordingly, after hearing both the parties, the petition is being decided.
5. The petitioner was appointed as Beldar in the month of February, 1980 under the opposite party No. 2 at Faizabad Division and he was paid on daily basis. From February, 1980 to 3.10.1990 the petitioner was paid wages on daily Basis and from 4.10.1990, he was brought in the work charge establishment and Became work charge employee since then. It is relevant to mention here that the petitioner was sent for the verification of his age and the Chief Medical Officer on 28.8 1991 issued a certificate mentioning therein that the age of the petitioner is 42 years on 28.8.1991. As per the certificate issued by the Chief Medical Officer, Faizabad the date of birth of the petitioner was recorded in the service book on 28.8.1949. The petitioner was made permanent on the post of Beldar by order dated 23.7.1999. passed by the opposite party No. 2 w.e.f. 9.7. 1999. It has been submitted that as per the date of birth recorded in the service book of the petitioner on the basis of the certificate issued by the Chief. Medical Officer, the petitioner would have retired from service w.e.f. 30.8.2009 after attaining the age of 60 years from 26.8. 1949. The opposite party No. 2 has issued notice letter dated 1.6.2009 providing therein that the petitioner would have to retire from service as per date of birth recorded in the service book on the basis of certificate issued by the Chief Medical Officer, Faizabad on 30.8. 2009. Thereafter, the opposite party No. 2 cancelled the notice dated 1.6.2009 vide order dated 25.6.2009 stating therein that notice dated 16.1.2009 is correct and will be applicable for the retirement. It has been argued that in case Petitioner would have retired from service on the basis of the date of birth mentioned in the service book as per certificate issued by Chief Medical Officer, Faizabad w.e.f. 30.8. 2009, he must have completed more than ten years of service from the date of permanent appointment w.e.f. 9.7.1999 and would have been paid pension and other service benefits.
6. It has further been submitted that the G.O. dated 1st July, 1989 provided that even a temporary employee is entitled for the pension if he has completed at least ten years regular service and as the petitioner is continuously/regularly working since February, 1980 and as such under this Government Order, he is entitled for the pension as he had worked for period of more than twenty nine years of service under the opposite parties. The petitioner has rendered for more than twenty nine years long and uninterrupted service under the opposite parties. The petitioner was illegally retired by notice dated 16.1.2009 w.e.f. 30.6.2009. Feeling aggrieved the petitioner had given representation dated 22.12. 2009 for payment of pension and other retiral benefits but no decision was taken.
7. The petitioner filed writ petition No. 2642 (SS) 2010 before this Court and this Court vide judgment and order dated 5.5.2010 decided the writ petition with direction to opposite party No. 2 to take decision of the pending representation in accordance with law by speaking and reasoned order. He made fresh representation dated 13.5.2010 relying the judgment of this Court whereby this Court has been pleased to hold that service rendered by an employee in work charge period should also be counted for determination of pension and even if an employee have not completed ten years of regular service is entitled for the pension. The opposite party No. 2 passed impugned order without considering the grounds and judgments relied in representation. Further he has not considered the matter relating to payment pension counting service rendered as work charge employee by the petitioner.
8. The petitioner''s representation has been rejected by the Executive Engineer, Prantiya Khand, F.W.D., Faizabad on 2.7.2010. This impugned order is under challenge before this Court. The petitioner has been retired from service on 30.6. 2009 on the basis of his date of birth being registered as 1.7.1949. The petitioner''s claim that he was born on 26.8. 1949 has been rejected. The crux of the matter is that at the time, the petitioner retired on the basis of his date of birth being 26.8. 1949, he would have been entitled for pension as requires ten year''s regular service would have completed by him. The difference goes to less than one month. The argument that has been developed is that even if the petitioner has retired on 30.6.2009, on the basis of his date of birth being 1.7.1949, the regular service rendered by him would come to about nine years eleven months and few days. The petitioner was made permanent on the post of Beldar by the order dated 23.7.1991, passed by opposite party No. 2 with effect from 9.7.1999. The petitioner''s services will be short by only nine days in ten years'' service. The petitioner has argued that even if the date of birth is not corrected for which he has filed this writ petition, he will be entitled to the pensionary benefits in view of the order passed by this Court in number of writ petitions. The petitioner has put in approximately thirty years of service in all. This valuable services cannot be ignored altogether. The petitioner has relied on the judgment passed in W.P. No. 4476(SS) 2004 Rajendra Nath Pandey v. State of U.P. as well as Mohd. Mustafa v. State of U.P. 2009 (27) LCD 1163, decided by this Court. In this case, this Court had allowed the pensionary benefits to an employee who had completed twenty three years of service, out of which nine years five months and eleven days had been completed regular service. The petitioner was short by approximately six months. His Lordship has relied upon the following cases:--
2. Santosh Kumar v. State of Andhra Pradesh State Electricity Board and others,3
3.
4.
5. State of U.P. and others. v. Rajendra Nath Pandey 2008 (26) LCD 1760,
9. Considering all the circumstances, it appears that this is a fit case where pensionary benefits should be allowed to the petitioner even if his date of birth is not corrected. If the writ petition is decided qua his date of birth, only nine days will further be added in his service but the petitioner''s case is otherwise covered by the judgment and reasoning shown above.
10. The petitioner has also brought to the knowledge of this Court, the amendment in the Regulation while drawing attention of this Court towards U.P. Civil Service (11th Amendment) Regulation, 1984. Under this amendment, para 468 of the said Regulations, has been amended to the extent given below:--
11. These provisions of law clearly entitles the petitioner to be paid pensionary benefits counting the period of the petitioner as full complete ten years. Accordingly, this Court comes to the conclusion that the petitioner should be given benefit of complete ten years regular service in equity as well as in law. The deficiency of merely nine days in counting his regular service be waived of Consequently, the writ petition succeeds and is allowed. The opposite parties are directed to allow the pensionary benefits to the petitioner considering him to have completed ten years of regular service in total twenty nine years of service and pay him pension regularly from the date of his superannuation.
