The prayer in the writ petition is for a Writ of Mandamus, directing the Respondents to alter the retirement date of the petitioner from 04.04.2010 to 31.05.2012 and to disburse the salary increments, Pension, Provident Fund and other consequential service benefits with 12% interest within the time stipulated by this Court.
2.The petitioner was appointed as B.T. Assistant at the 4th respondent school and he joined duty on 30.11.1979. The petitioner's grievance is that his actual date of birth as per original Register of Births is 06.10.1953. However, in the school records since it was wrongly entered as 04.04.1952, he had made representation to alter his date of birth as per birth register extract. Since the same has not been considered, within 5 years period from the date of his appointment, he has rightly approached the Civil Court by filing O.S.No.433/1985 on the file of the District Munsif Court, Ambasamudram. The said suit was decreed in favour of the petitioner on 30.08.1989. Challenging the same, the respondents therein filed an appeal suit in A.S.No.39 of 1999 before the Sub Court, Ambasamudram. The said Court also dismissed the said appeal suit on 19.06.2002. Thereafter, no further appeal was preferred. Therefore, the judgment and decree of the District Munsif Court, Ambasamudram, as confirmed by the Sub Court, Ambasamudram as stated supra has become final. Thereafter, the petitioner had made a representation to the respondents to implement the order of the Civil Court decree by altering his date of birth as 06.10.1953 as declared by the Civil Court. Since no action has been taken, the petitioner has filed W.P.(MD) No.5546 of 2010 seeking for issuance of mandamus, directing the respondents therein to alter the date of birth of the petitioner in the Service Register as 06.10.1953 instead of 04.04.1952.
3.This Court after hearing both sides by order dated 22.04.2010, passed the following order:
?3.It is seen that the Decree has been passed by the trial Court, which was confirmed by the Appellate Court, the Director of School Education is one of the parties apart from the fourth respondent school. It is also seen that the first appeal, in fact, has been preferred by the Director of School Education. In such view of the matter, if the judgment of the Appellate Court has become final, it is incumbent on the part of the respondents to implement the same by making entry into the service Register of the petitioner's date of birth as 06.10.1953.
4.The Writ Petition is disposed of with a direction against the respondents to consider the petitioner's representation, dated 09.09.2009, on the Civil Court Decree passed in O.S.No.433 of 1985, dated 30.08.1989 and the same was confirmed by the Appellate Court in A.S.No.39 of 1999 and such exercise shall be completed within a period of four weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.
5.It is made clear that by virtue of the implementation of the Judgment of the Civil Court, the petitioner is entitled to continue in the service, the respondents shall not terminate his service till passing of such orders.?
4.Pursuant to the orders as directed by this Court since no action was taken, petitioner had filed Contempt Petition (MD) No.430 of 2010. When the said contempt petition was pending before this Court, having considered the declaratory suit in favour of the petitioner and also having receipt of the report from the Revenue Divisional Officer, Tirunelveli dated 26.03.2010, and in compliance of the order passed by this Court in W.P.(MD) No.5546 of 2010 dated 22.04.2010, the first respondent has issued a Government Order in G.O. (2D) No.37 School Education (D2) Department dated 03.10.2012. In the said G.O. the following orders have been passed:
?2.,g;bghUs; bjhlh;ghf jpUbey;ntyp khtl;l nfhl;lhl;rpj; jiyth; jdJ 26.03.2010 ehspl;l fojj;jpy;> mk;ghrKj;jpuk; khtl;l chpikapay; ePjpkd;wk; tHq;fpa 30.08.1989k; ehspl;l jph;g;gpd;go> kDjhuhpd; gpwe;j njjp 06.10.1953 vd;Wk;> nkYk;> jpUbey;ntyp efuhl;rp gpwg;g[ gjpntl;oy; kDjhuh; gpwe;j njjp 06.10.1953 vd 08.10.1953 md;W gjpt[ bra;ag;gl;Ls;sJ vd;Wk;> nkYk;> kDjhuupd; bgw;nwhUf;F 08.12.1952y; jpUkzk; eilbgw;wjhf mth;fspd; jpUkzg;gj;jphpf;if K:yk; bjhpfpwJ vd;Wk;> ,e;neh;tpy;> Mtzq;fis ghprPyid bra;jjpYk;> neuo tprhuizapYk;> kDjhuh; gpwe;j njjp 06.10.1953 vdj; bjhpa tUfpwJ vdj; bjhptpj;Js;shh;.
3.nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;Jk; bghUl;L> jpUbey;ntyp nfhl;lhl;rpj; jiyth; mspj;Js;s rhd;wpd; mog;gilapy;> jpU. Rhto bgh.rpjk;guk; vd;ghhpd; gpwe;j njjp 06.10.1953 vd cWjp bra;ag;gLtjhy;> gzpg;gjpntL kw;Wk; gpw Mtzq;fspy; 4.4.1952 vd cs;s md;dhhpd; gpwe;j njjpapid> 06.10.1953 vd khw;wk; bra;J Miz tHq;FkhW nkny ,uz;lhtjhfg; gof;fg;gl;l fojq;fspy; gs;sp fy;tp ,af;Feh; muRf;F ghpe;Jiu bra;Js;shh;.
4.nkny Kjyhtjhfg; gof;fg;gl;l jPh;g;ghizapid bray;gLj;j ntz;o> nkny ,uz;lhtjhfg; gof;fg;gl;l fojq;fspy; cs;s gs;spf; fy;tp ,af;Fehpd; ghpe;Jiuapid muR ftdKld; ghprPypj;J> jpUbey;ntyp khtl;lk;> MH;thh;f;Fwpr;rp> cjtpbgWk;> _gukfy;ahzp nky;epiyg; gs;spapd; gl;ljhhp Mrphpah; jpU.rhto bgh.rpjk;guk; vd;ghhpd; gpwe;j njjp 6.10.1953 vd cWjp bra;ag;gLtjhy;> gzpg;gjpntL kw;Wk; gpw Mtzq;fspy; 04.04.1952 vd cs;s md;dhhpd; gpwe;j njjpapid> 06.10.1953 vd khw;wk; bra;ayhk; vdf; fUjp mt;thnw muR MizapLfpwJ.?
5.In spite of the Government Order having been passed by the first respondent State Government, the Educational Department i.e., respondents 2 and 3 as well as the 4th respondent have not complied with the said order made by the Government and thereby entering the correct date of birth of the petitioner in the service register. In spite of the Government Order passed by the first respondent, the service of the petitioner had not been extended up to the superannuation period pursuant to the correct date of birth ie. upto 31.05.2012, instead the petitioner had to retire on 30.04.2010 itself based on the wrong date of birth, which was originally entered in the service register. Therefore, the petitioner has come out with the present writ petition with the aforesaid prayer.
6.Heard both sides.
7.The learned counsel appearing for the petitioner would submit that in spite of the declaratory decree of the civil Court which has become final as appeal filed against the decree was dismissed and in view of the direction issued by this Court in W.P.(MD) No.5546 of 2010 and the Government Order in G.O.(2D) No.37 School Education (D2) Department dated 03.10.2012, the petitioner's service has not been extended up to 31.05.2012, i.e., his actual date of superannuation by taking into consideration of alteration of date of birth of the petitioner as the respondents have to enter the correct date of birth in the service register pursuant to the G.O. referred to above. With the result, the petitioner has not received the eligible service benefits up to 31.05.2012. Therefore, the learned counsel appearing for the petitioner would submit that the petitioner would be entitled to claim monetary benefits as has been claimed in the writ petition.
8.Per contra, the learned Additional Government Pleader would submit that though the date of birth of the petitioner has been subsequently altered by G.O.(2D) No.37 School Education (D2) Department dated 03.10.2012, since before the said date the petitioner has attained the age of superannuation and even before the extended date of superannuation and therefore, the question of re-entry into service would not arise. More over, no proposal from the 4th respondent was received by the official respondents, especially respondents 2 and 3 herein and in view of the same, no further step is necessary on the part of the respondents 2 and 3.
9.The learned counsel appearing for the 4th respondent would submit that as per the original date of birth the petitioner attained superannuation and therefore, he retired from the 4th respondent school. Only thereafter, he acquired a Government Order in G.O.(2D) No.37 School Education (D2) Department dated 03.10.2012. Even before issuance of the Government Order his alleged extension of service was up to 31.05.2012 as that date would be last date of the academic year, which would be normally taken into account for the purpose of retirement was over. Therefore, when the petitioner was not working from 04.04.2010 or at least from 31.05.2010, the question of sending any proposal to the official respondents for extending the service of the petitioner does not arise. Therefore, he sought for dismissal of the writ petition.
10.This Court has considered the rival submissions of the respective learned counsel for the parties before this Court.
11.The aforesaid factors are not in controversy. The actual date of birth of the petitioner is 06.10.1953 and the same was wrongly entered as 04.04.1952 as per school records. The petitioner immediately after joining the fourth respondent school has requested to alter the date of birth in the service register. Since his request was not considered, he had rightly approached the Civil Court for declaratory suit within 5 years period from the date of joining in the fourth respondent school. The Civil Court decreed the suit in his favour and though the respondents therein preferred appeal, the appellate Court confirmed the same and the said declaratory decree having become final, the respondents have nothing to do except to accept the date of birth as per civil Court decree. In spite of the representation, since the respondents have not accepted the same, the petitioner has approached this Court with W.P.(MD) No.5546 of 2010 and pursuant to the direction issued by this Court G.O.(2D) No.37 School Education (D2) Department dated 03.10.2012 was issued, wherein the State Government has confirmed the date of birth of the petitioner as 06.10.1953, not only pursuant to the declaratory decree but also based on the report submitted by the Revenue Divisional Officer.
12.Once the Government has passed order pursuant to the civil Court decree, there is no other go for respondents 2 to 4 except to accept the date of birth and alter the date of birth in the service register of the petitioner. For the said purpose, since the petitioner has approached the fourth respondent, which is a private aided school, necessary proposal has to be submitted. For the reasons best known to them, neither the 4th respondent has forwarded any proposal nor the official respondents had initiated any action either seeking for proposal from the fourth respondent or acted themselves suo motu pursuant to the Government Order dated 03.10.2012. Therefore, the negligence on the part of the official respondents as well as the 4th respondent are unjustifiable and therefore, the same is liable to be interfered with.
13.In view of the aforesaid facts, the petitioner has made out a case for interference by way of issuance of mandamus. Therefore, this Court is inclined to pass the following order in this writ petition:
(i) The fourth respondent herein is directed to send necessary proposal with all connected service records of the petitioner within a period of two weeks from the date of receipt of this order to the official respondents herein through proper channel for making necessary correction in the service register of the petitioner altering the date of birth of the petitioner as 06.10.1953 instead of 04.04.1952.
(ii) On receipt of the said proposal from the fourth respondent, the official respondents are directed to act upon the said proposal and accordingly make necessary corrections in the service register of the petitioner and thereafter necessary proceedings has to be issued by the official respondents for extending the service of the petitioner upto 31.05.2012 based on his correct date of birth i.e., 06.10.1953 and accordingly service benefits including monetary benefits shall be calculated and to be disbursed to the petitioner.
(iii) It is needless to state that such exercise shall be done by the official respondents within a period of eight weeks from the date of receipt of the proposal from the fourth respondent.
(iv) The service benefits including monetary benefits, pay dues etc., up to the extended service of the petitioner i.e., 31.05.2012 shall be calculated along with dues of pay in pensionary benefits and shall be quantified and to be paid to the petitioner within the said period and accordingly his pensionary benefits shall be revised and shall continue to pay the same till his entitlement.
(v) Since the issue is pending all along, this Court feels that this is not a fit case in which interest has to be paid to the petitioner for the monetary benefits.
14.With these directions, this Writ Petition is allowed. No costs.
To
1.The Secretary, School Education Department, State of Tamil Nadu, Fort St. George, Chennai.
2.The Director, School Education Department, Chennai.
3.The District Educational Officer, Cheranmadevi Educational District, Tirunelveli..