Smt. Sita Devi vs State of U.P. and Others

Sudhir Agarwal, J.—With the consent of the learned Counsel for the parties, writ petition is being finally decided under the Rules of the Court.

The order impugned in this writ petition is dated 23rd September, 2009 passed by the Chief Medical Officer, Kashiram Nagar declining to grant benefits to the petitioner including compassionate appointment on the ground that in the service record of the deceased employee late Sri Choya Ram, his date of birth was mentioned as 12.11.1949 though the correct date of birth appears to be 12th March, 1942 and hence no benefits will be admissible to the petitioner after the death of the said employee on 3rd May, 2009 while in service since he ought to have retired on 31st March 2002.

A counter affidavit has also been filed wherein the respondents have taken the following stand in para 4:

That the contents of para 3 and 4 of the affidavit are not admitted as stated hence denied, in reply thereto is stated that the husband of petitioner late Choya Ram was appointed in the department on 15.06.1967. At the time of joining his services, the date of birth of deceased employee Choya Ram was recorded as 04.03.1942 as disclosed by deceased employee himself. However in the year 1980 the deceased employee Choya Ram filed a forged medical certificate alleged to have been issued by Chief Medical Officer, Etah showing his age as 31 years as on 12.11.1980. It is further submitted that on the basis of such forged medical certificate, deceased employee with collusion of employees of the department manage to enter the date of birth in service book as 12.11.1949 by manipulation. Thus on the basis of manipulations and forged medical certificate, deceased employee manage to work in the department till his death i.e. 03.05.2009, although the petitioner ought to have retire on 31.03.2002.

It is evident from the impugned order as well as the counter affidavit that in the service book of the deceased employee till the time of his death, date of birth continued to be mentioned as 12.11.1949. No steps were taken by the authorities concerned for correction thereof in accordance with law after giving opportunity of hearing to the concerned employee. It is only after his death when his family members claimed various benefits, the impugned order has been passed alleging manipulation in the date of birth in the service book of the deceased employee. It is not the case of the respondents, even in the impugned order that any action was taken by the authority concerned with respect to the date of birth of the deceased employee and the date of birth was actually changed.

Learned standing Counsel could not tell as to how it was open to the Chief Medical Officer, Kashiram Nagar to himself assume another date of birth in the service book of the deceased employee when there was no correction made therein in accordance with law and thereby to deny such benefits, as are admissible to the family members of the deceased employee after his death in harness. Even, during the life time, when employee was in service, his date of birth could not have been altered or changed by the department or the authority thereof, without following the principles of natural justice since it involve civil consequences, as held by the Apex Court in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, . In para 12 of the judgment, the Apex Court held:

It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of that Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.

Learned Standing Counsel could not pursue this Court to take a different view and in fact could not justify the impugned order. It is really surprising that despite of death of the sole bread-earner of the family, the respondent No. 2 has harassed the family members and the widow of the deceased employee by passing such an illegal order and that too without application of mind and without observing the procedure prescribed in law. The impugned order cannot be sustained.

The writ petition is allowed. The impugned order dated 23rd September, 2009 passed by the Chief Medical Officer, Kashiram Nagar is hereby quashed. The petitioner shall be entitled for all consequential benefits as per rules as if the petitioner''s husband had died in harness. The petitioner shall also be entitled to cost which is quantified to Rs. 10,000/- against the respondent No. 2, who shall pay the same to the petitioner within two months from the date of service of certified copy of order.