Amar Singh Champawat vs State of Rajasthan and Others

Sandeep Mehta, J.

Heard learned counsel for the parties.

Succinctly stated, facts of the case relevant and essential for the decision of the instant writ petition are enumerated herein below for sake of convenience:--

"The petitioner was regularly selected and appointed as a Live Stock Assistant in the respondent department in the year 1972. The petitioner claims, that at the time of his appointment, his date of birth was entered in the service book as 6.3.1954. The department''s case is that the petitioner''s actual date of birth was 6.3.1948 but he managed to put off his scheduled retirement by making interpolations in the service book and altering his date of birth to 6.3.1954. When the petitioner''s service record was examined, it was found that there was overwriting by which his date of birth had been altered from 6.3.1948 to 6.3.1954. The education certificates of the petitioner as available on record were summoned and it was affirmed that the petitioner''s date of birth as per the certificate dated 12.6.1964 issued by the Board of Secondary Education, Ajmer was 6.3.1948. Accordingly, the petitioner''s date of birth was rectified in his service book as 6.3.1948 and a proceeding was initiated by order Annex.P/2 dated 25.2.2010 to retire the petitioner from Government service on attaining the age of superannuation with effect from 31.3.2008. On the very same day i.e. on 25.2.2010, a charge-sheet Annex.P/3 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 came to be issued to the petitioner. It was alleged in the charge-sheet that the petitioner had managed to make interpolations in his service book and by doing so, altered his date of birth from 6.3.1948 to 6.3.1954 with the ulterior objective of gaining extra length of service.

On receiving the charge-sheet Annex.P/3, the petitioner immediately approached this Court by way of the instant writ petition assailing the legality and validity thereof. The principal ground of challenge laid to the charge-sheet is that the same was issued after the petitioner''s retirement and thus the same is void as being hit by the mandatory requirements of the Pension Rules, 1996."

This Court while entertaining the writ petition stayed further action pursuant to the impugned charge-sheet by order dated 16.4.2010.

A reply to the writ petition has been filed on behalf of the respondents wherein it is stated, that the petitioner made interpolations in the service book regarding his date of birth and altered the date of birth from 6.3.1948 to 6.3.1954 and thus, the charge-sheet was rightly issued to the petitioner under Rule 16 of the CCA Rules. It is further asserted in the reply that the inquiry was instituted on 25.2.2010 whereas the formal order retiring the petitioner was issued on 26.2.2010. It is clearly stated in the reply that the petitioner was on duty on 26.2.2010 though illegally when the order of retirement dated 26.2.2010 was served upon him. The order dated 26.2.2010 was placed on record by the learned Govt. counsel during the course of the arguments. On the basis of this averment, the petitioner''s claim that the inquiry was initiated after the petitioner''s retirement is refuted. It is relevant to note here, that the pertinent assertion in the reply that the formal order retiring the petitioner was issued and served on the petitioner while on duty on 26.2.2010 is not countered by way of any rejoinder etc.

Learned counsel for the petitioner vehemently contended that the charge-sheet Annex.P/3 issued to the petitioner is grossly illegal as the same was issued in total contravention of the mandatory requirement of Rule 7(b)(i) and (ii) of the Pension Rules, 1996. It was urged on behalf of the petitioner that on a bare look at the entry of age in the petitioner''s service book, it would be evident that no cutting or interpolation is visible therein. It was also asserted that the charge-sheet was issued to the petitioner on 25.2.2010 and by that time he had already retired from service (w.e.f. 31.3.2008) and thus, the charge-sheet could only have been issued with the prior sanction of the Governor as per Rule 7(b)(i) and (ii) of the Pension Rules, 1996. Learned counsel for the petitioner urged that as no prior sanction of the Governor was procured before issuing the charge-sheet to the petitioner, the same is ex-facie illegal and deserves to be quashed.

Per contra, learned Dy. Government counsel for the respondents vehemently opposed the submissions advanced by the petitioner''s counsel. He urged that the retirement of the petitioner was effected from an antedate by order dated 26.2.2010 because, on checking the petitioner''s service book, it was revealed that the petitioner had managed to tamper and overwrite the entry of his date of birth in the service book and thereby managed to illegally continue in service much beyond his actual date of superannuation. It was submitted that the order effecting retirement was passed by the petitioner''s disciplinary authority on 26.2.2010 and by then, the charge-sheet Annex.3 had already been served upon the petitioner. Learned Govt. counsel urged that had the petitioner been served the charge-sheet after his retirement, it would have been mentioned in the charge-sheet that the petitioner was a retired Government servant. He submitted that as a matter of fact, the order Annexure-2 of which the petitioner is trying to take advantage, is not his actual retirement order but as a matter of fact is a communication sent by the Director to the petitioner''s disciplinary authority for issuing the petitioner''s retirement order. The consequential retirement order was issued by the Deputy Director, Animal Husbandry Department on 26.2.2010. He further submitted that, even assuming that the date of charge-sheet and the date of order retiring the petitioner is the same, then also the plea that the charge-sheet was issued after the petitioner''s retirement, cannot be accepted.

This Court during the course of hearing, had directed the respondents to submit the petitioner''s original record for perusal. The original record was produced and perused. The petitioner''s actual retirement order dated 26.2.2010 issued by the Deputy Director, Animal Husbandry Department, Jaisalmer is available on the record. The submission advanced on behalf of the respondents that the order Annex.P/2 was issued by the Director communicating to the Joint Director that the employee should be forthwith retired and relieved from service is substantiated from the record. The actual retirement of the petitioner from service was effected by order dated 26.2.2010, whereby the petitioner''s disciplinary authority - the Deputy Director, Animal Husbandry department declared the petitioner retired from service as per his actual date of birth as mentioned in his educational certificates.

Heard and considered the arguments advanced at the bar and perused the material available on record.

The petitioner claims that the charge-sheet could not have been issued to him because no prior sanction of the Governor was taken and the charge-sheet was issued after his retirement. The order Annex.P/2 dated 25.2.2010, on which much stress was laid by the petitioner''s counsel, is a communication sent by the Director of Animal Husbandry department to the Deputy Director to retire the petitioner from service with effect from 31.3.2008. The petitioner''s disciplinary authority and the departmental officer, who issued the order to retire the petitioner from service, was the Deputy Director. The Deputy Director on receiving the communication dated 25.2.2010, issued the order dated 26.2.2010 (placed on record by the learned Deputy Govt. counsel during the course of the arguments), effecting the petitioner''s retirement and relieving him from duty. The petitioner has not countered by way of any rejoinder etc. the specific assertion made by the State at para (A) of the reply to grounds which reads as below:--

"(A) That ground ''a'' and ''b'' of the writ petition is denied, it is humbly submitted that petitioner was retired vide order dated 26.2.2010 w.e.f. 31.3.2008 and charge sheet was served on the petitioner while he was on duty i.e. 25.2.2010, hence, the rule 7(b)(ii) of rules of 1996 is not attracted in the present circumstances, therefore, the order giving charge sheet is with in jurisdiction of answering respondents and is perfectly legal and sustainable in eye of law."

Thus, it is evident that the petitioner has deliberately concealed material facts while filing the writ petition.

It is evident that the formal retirement order was issued and served to the petitioner on 26.2.2010 and not 25.2.2010 as claimed in the writ petition. Admittedly, the charge-sheet was served upon the petitioner on 25.2.2010. Thus, the petitioner''s claim that the charge-sheet could not have been issued to him as he had retired by the time, the same was issued and that procuring Governor''s sanction was essential under Rule 7 before undertaking such action, has no legs to stand whatsoever. This Court has no hesitation in holding that the charge-sheet was served before the petitioner was relieved from service by effecting his retirement from an ante date by order dated 26.2.2010. Even if for argument''s sake, it is assumed that the petitioner was retired by the order Annex.P/2 dated 25.2.2010, then too, it is evident that the order would become effective at the end of the office hours. Admittedly, the charge-sheet Annex.P/3 dated 25.2.2010 was served upon the petitioner during the office hours of the very same day on which order Annex.P/2 was issued. Accordingly, the challenge laid by the petitioner to the impugned charge-sheet Annex.P/3 by resorting to Rule 7 of the Pension Rules is unsustainable.

So far as the prayer made by the petitioner for grant of provisional pension is concerned, this Court while deciding the second stay petition preferred by the petitioner vide order dated 19.1.2011, observed that the petitioner is entitled to provisional pension and the papers for granting provisional pension to the petitioner have been communicated to the pension department. Thereafter, the petitioner was given liberty to submit a representation for redressal of this grievance to the pension department. The petitioner''s counsel has not raised any issue regarding non-grant of provisional pension during the course of arguments. Furthermore, the pension department is not even a party in the instant writ petition.

In view of the aforesaid discussion, the instant writ petition, being devoid of any merits, is hereby dismissed.

No order as to costs.