Sadur ul Din Kohli vs State and Others

Ali Mohammad Magrey, J.—In the instant petition, the petitioner has questioned communication No. F(Admn-B) CU/12 New Campus

Bemina dated 06.07.2012 addressed to the Divisional Forest Officer, Kehmil Forest Division, Kralpora by Assistant Secretary Admn-Central

Board of School Education, respondent No. 7, whereby a process for holding enquiry regarding date of birth recorded as 15.10.1952, in the date

of birth certificate issued by the Board of School Education bearing No. 003861 instead of 05.01.1946 recorded in respect of a certificate issued

by the Government Boys Middle School Gung, Shath (Karnah), besides seeking direction for settlement of his post retiral benefits on the basis of

order of superannuation/date of birth recorded as 15.10.1952. The petitioner claims to have been appointed as Forest Guard on 05.01.1973 and

promoted as Dy. Forester on 15.12.1978 and subsequently as Forester on 26.10.1989. petitioner has qualified KFS training course in the year

2003-04 and his Date of Birth was recorded as 15.10.1952 on the basis of matriculation certificate issued by the Board of School Education,

respondent No. 7. The petitioner has placed on record copy of the certificate as also matriculation certificate substantiating the averments. It is

submitted that the petitioner was continuing in service and finally retired on reaching the age of superannuation on 31.10.2010 on the basis of

recorded date of birth as 15.10.1952 vide Forest order No. 4 of 2010 dated 31.10.2010. It is further submitted that the petitioner while in service

claimed promotion against the next higher post on the strength of being member of reserved category (Schedule Tribe) and his case remained

pending before the respondents even after his retirement. While petitioners case was pending consideration for promotion respondent No. 5

doubted the genuineness of the matriculation certificate and accordingly asked petitioner to produce the matriculation certificate. After considering

the claim of petitioner for accord of benefit of promotion against the post of Range Officer in terms of the roster point of Schedule Tribe, petitioner

was promoted as Range Officer Grade-II vide order No. 24 of 2011 dated 21.01.2011 w.e.f. 01.01.2010, in the order it was provided that

petitioner shall be entitled to pay attached to the post of Range Officer Grade-I from 01.01.2010 till his date of retirement i.e. 31.10.2010.

Since respondent No. 5 avoided payment of legitimately earned salary to the petitioner from the date it has remained with held on account of

consideration of his case for promotion till his retirement and also for with-holding the post retiral benefits, the petitioner approached respondents

from time to time. During the pendency of finalization of petitioners case for release of salary as also settlement of his post retiral benefits it was

learnt that respondent No. 5 has initiated correspondence with respondent No. 7 with regard to authentication of matriculation certificate which

remained pending with the Board of School Education.

Needless to mention that petitioners claim of having appeared in examination of Adeeb from Jamia Urdu Aligarh, therefore, Board authorities

before issuing the authentication certificate in favour of the petitioner have ascertained the genuineness of the certificate from Jamia Urdu Aligarh,

confirming the date of birth of petitioner as 15.10.1952 and after fulfilling the requisite formalities, respondent No. 7 issued the certificate in favour

of the petitioner.

During the service tenure, respondents never questioned the authenticity of matriculation certificate and correctness of date of birth, however

after retirement respondent No. 5 has without any authority initiated the process of enquiry for ascertaining the actual date of birth of the petitioner

for settlement of the post retiral benefits etc. The respondents having delayed the release of salary/post retiral benefits, were time and again asked

to settle the same, however, having denied the benefits have caused great prejudice to the interests of the petitioner and the arbitrary, unfairness

and illegal action of the respondents has deprived the petitioner from legitimately earned salary/post retiral benefits which in terms of law is, his,

property, thereby deprivation of the property amount violation of his fundamental right guaranteed under the Constitution of India.

The petitioner is aggrieved of communication dated 06.07.2012 whereby a process for conducting the enquiry has been initiated by the Board

of School Education regarding actual date of birth and recording of incorrect date of birth and pending such process respondents have with-held

the legitimately earned salary/post retiral benefits in favour of petitioner, therefore, the instant petition.

On notice respondents 1 to 5 have filed reply supported by affidavit of respondent No. 5, however, none appeared on their behalf on

04.11.2013 and this court had no option but to direct as under:

on asking of the Court, Mr. M.A. Chasoo, learned, AAG appears and assures assistance on the next date of hearing. It is made clear that in case

Mr. Chasoo, learned AAG, fails to assist in the matter, it shall be reported to Chief Secretary of the State.

In the reply, there is no denial regarding the appointment of petitioner initially as Forest Guard on 05.01.1973 and thereafter having reached the

position of Range Officer Grade-II. Reason for with-holding the post retiral benefits has been attributed to the approach of petitioner for not co-

operating in enquiry proceedings regarding authenticity of matriculation certificate/ascertaining of actual date of birth. The reason for with-holding

the benefit has been detailed out in preliminary objections and the relevant para is extracted below:

...It is respectfully submitted that the petitioner was appointed as Forest Guard on 05.01.1973 and was promoted as Deputy Forester on

15.12.1978. The petitioner was subsequently promoted as Forester on 26.10.1989. But at the time of next promotion as Range Officer Grade-II

the matriculation certificate was sought by the Answering Respondents (authorities) but same was not provided by him. Consequently the

promotion was granted by the Answering Respondents to the petitioner subject to the production of said certificate. Later on the Matriculation

certificate issued by the J&K Board of School Education under Sr. No. 781 Registration No. 710-PRB-68 Roll No. 202 was produced by the

petitioner regarding passing of his Matriculation examination which was apparently doubt-full. Accordingly to prove the authenticity of the

certificate, the Answering Respondent No. 5 vide his communication No. 1063/G dated 15.11.2010 addressed it to the Board of School

Education, for verification of the certificate and after verification by the Board issued a communication to the Head Master Govt. Middle School

Gund Shoth vide No. F(JS-VER)B/KD/W-44 dated 19.04.2011. A certified copy of the school record of the petitioner was received from the

Zonal Education Officer Chamkote, Karnah in which the date of birth of the petitioner is recorded as 01.01.1946. In order to finalize the issue

under rules the Board Authorities constituted an Enquiry Committee vide Order No. 333-B of 2012 dated 09.06.2012, report of which is still

waited. As such pension case of the petitioner could not be submitted to the concerned authorities for the settlement of pensionary benefits to the

petitioner because of disputed Date of Birth which is so far not settled because of above reasons. So far as release of un-paid salary of the

petitioner is concerned/it is respectfully submitted, as the case of petitioners Date of Birth is doubtful, thereof, salary of the petitioner for the months

of September/October, 2010 could not be released, as such, present writ petition is not maintainable and merits dismissal.

Respondent No. 7 has also filed objections and while defending their action have supported the same with reference to the requests made by

respondent No. 5 seeking authentication of recorded date of birth of petitioner. The reason for conducting enquiry regarding ascertaining the actual

date of birth of the petitioner has been detailed out in paragraph-5, which is extracted herein below:

5) In response to contents of Para 05 it is submitted that as has been stated herein above that the petitioner somewhere in the year 2010 had

applied to the answering respondent Board for issuance of Birth Certificate and same came to be issued vide No. 003861 dated 25.11.2010,

wherein Date of Birth of petitioner has been recorded as 15.10.1952. As has been stated in the preceding paras, the said Date of Birth of had

been recorded in the Board Registration on the basis of Adeeb Certificate having been furnished by the petitioner at the time of registration. The

aforesaid certificate having been obtained by the petitioner, came to be forwarded to the Board by the Forest Department i.e. employer of

petitioner for this authentication and verification vide No. 1063/G dated 15.12.2010. During the process of verification/authentication of the

aforesaid Certificate as also particulars regarding Date of Birth of petitioner, as compliant in the matter was received by the Board about the

correctness of petitioners date of birth reflected in the certificate, as a consequence whereof, the respondent board forwarded it to the concerned

School through the office of concerned Zonal Education Officer, whereupon it was found that date of birth recorded in the school records of

petitioner is as 05.01.1946. the petitioner, in order to draw undue benefit in the matter of his service ex facie forged his Date of Birth and got that

recorded on the basis of Adeeb Certificate in the answering respondent-board, concealing his true and correct date of birth viz. 05.01.1946. As

has stated hereinabove, the respondent board records the particulars of candidates including that of date of birth on the basis of school records

and since the petitioner was not a regular student of Class 10th, as such, his registration was recorded on the basis of aforesaid Adeeb Certificate

furnished by him, concealing therein the particulars about his date of birth in his school records. On coming to know about the aforesaid mischief

having been committed by petitioner in the matter, a show- cause notice vide No. F (Veri-KD)B/12A-401 dated 25.07.2012 for declaring the

aforesaid date of birth of petitioner as null and void ab initio, calling upon him to explain his position.

Petitioner has filed rejoinder affidavit in compliance to reply filed by respondents 1 to 5 and 7. In the rejoinder affidavit, petitioner reiterated the

same contents as was taken in the writ petition with supporting material.

Heard learned counsel for the parties and considered the matter.

Learned counsel for the petitioner submits that since petitioner has retired from service on 31.10.2010 on reaching age of superannuation and

ceases to be an employee of the Government and submits that there is no Rule which provides for holding an enquiry after retirement of an

employee. Once an employee retires and ceases to be so, the enquiry as in this case, cannot be held.

Learned counsel for the respondents contended that the employer/government has power to conduct the enquiry notwithstanding the admitted

position that the petitioner ceased to be an employee of the Government on 31.10.2010, the date of superannuation.

In Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and Others, the Apex Court in the context of Orissa Financial State Corporation Act

1959, observed as under:

In view if the absence of such provision in the said above regulations. It must be held that the corporation had no legal authority to make any

reduction in the retiral benefits of the appellant. there is also no provision for conducting a disciplinary enquiry after retirement of the appellant and

nor any provision stating that a case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired

from service on 30-06-1995, there was no authority vested in the corporation for continuing the departmental enquiry even for the purpose of

imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed

and the appellant was entitled to full retiral benefits on retirement.

Learned counsel for the petitioner has referred to and relied upon the Division Bench judgment of this Court reported in 2000 SLJ page 5,

whereby and whereunder, this Court had held that an employee who has retired from service cannot be subjected to departmental inquiry-

petitioner having ceased to be an employee cannot be subjected to departmental inquiry for taking action as contemplated. There is no provision

under rules which authorizes/empowers respondents to conduct the inquiry regarding ascertaining the actual date of birth of petitioner and after

having recorded the same before 32 long years, when admittedly the petitioner has ceased to be an employee of the Government.

Viewed thus, the writ petition is allowed. By writ of certiorari communication No. J(Admn-B) CU/12 dated 06.07.2012 issued by the

Assistant Secretary Admn Central Board of School Education to the extent of holding of an inquiry regarding date of birth of the petitioner shall

stand quashed.

By writ of mandamus respondents 1 to 5 are directed to settle the post retiral benefit case of petitioner and release the same including

pensionery benefits in favour of the petitioner within a period of two months from today, failing which petitioner shall be entitled to the interest @

6% on the amount due on account of post retiral benefits from respondents 1 to 5. Respondents 1 to 5 shall submit the pension case of petitioner

on the strength of recorded date of birth as 15.10.1952 to respondent No. 6 who shall finalize the same within a period of one month thereafter. In

case, respondent No. 6 fails to finalize the pension case of petitioner within aforesaid period he shall be liable to pay amount of Rs. 2/- lacs (Rs.

Two lacs) as compensation to the petitioner. Respondents shall also release legitimately earned unpaid salary in favour of the petitioner.