1. The short facts are that the petitioner joined the service with the then Gujarat Electricity Board on 16.12.1962. Thereafter, in the year 1972, he found that the correct birth date was 19.01.1943 and not 26.12.1941 as recorded in his service record. Therefore, he submitted an application to the Superintending Engineer. It appears that the Superintending Engineer, may have forwarded the proposal to the Board and as per the respondents, the Deputy Secretary of the Board vide order dated 08.09.1972 regretted the request of the petitioner for changing of the birth date. In spite of the aforesaid order, the Superintending Engineer vide order dated 21.02.1973, passed the order for correction of the birth date of the petitioner from 26.12.1941 to 19.01.1943. It appears that thereafter, on 21.08.1995, the Chief Engineer of the then Electricity Board having found that the Superintending Engineer vide order dated 21.02.1973 has already corrected the birth date as against the order dated 08.09.1972 passed by the Board, he ordered that the order of the Superintending Engineer dated 21.02.1973 be treated as cancelled. As per the petitioner, after the aforesaid order dated 21.08.1995, the petitioner continued to make the representation but no action was taken against the said order dated 21.08.1995 and when the petitioner was to reach the age of superannuation as per the original birth date, i.e. 26.12.1941, he preferred the present petition for challenging the legality and validity of the order dated 21.08.1995 and it is prayed to direct the respondents to accept the correct birth date of the petitioner as 19.01.1943.
2. This Court on 27.12.2001, entertained the petition and had granted interim relief in terms of para 8(B) whereby the respondents were restrained from retiring the petitioner from service w.e.f. 31.12.2001 and the respondents were directed to permit the petitioner to discharge the duties and continue him in service on the basis that his correct birth date as 19.01.1943. It appears that against order dated 27.12.2001 passed by this Court, the matter was carried in LPA being Letters Patent Appeal No.51/02 and the order of the learned Single Judge passed in the present petition was stayed. Ultimately, the said LPA came to be disposed of vide order dated 20.03.2002 and the LPA was allowed since the main matter was to be finally heard. It has been stated that the petitioner has worked from 01.01.2002 to 16.02.2002 under the interim order passed by this Court and thereafter, since the LPA bench stayed the order of the learned Single Judge passed in the present proceedings, he was not continued in service. The grievance on the part of the petitioner is also that the salary for the period from 01.01.2002 till 16.02.2002 ought to have been paid to the petitioner which has also not been paid and therefore, it has been submitted by the learned counsel for the petitioner that the said aspects may also be taken into consideration at the time when final relief is to be granted to the petitioner.
4. As submitted by the learned counsel appearing for both the sides and on the said aspect there is no dispute that before passing the order dated 21.08.1995 for treating the earlier order dated 21.02.1973 passed by the Superintending Engineer for correction of the birth date as cancelled, no opportunity of hearing is given to the petitioner by the Chief Engineer. It is true that after the order was passed, the petitioner made representation which has not been accepted. In any case, whether any hearing was given to the petitioner or not is not coming on record. Under these circumstances, if the order is cancelled after such a long period of 22 years, it was required for the Chief Engineer of the Electricity Board to give an opportunity of hearing to the petitioner and thereafter, the order could have been passed in accordance with law.
5. Mr.Adesara, learned counsel for the petitioner submitted that this Court may consider that the competent authority was Superintending Engineer and not the Deputy Engineer of the Board or the Chief Engineer and therefore, if the competent authority had passed the order in spite of the order of the Deputy Secretary of the Electricity Board, the same can be considered as valid in view of the regulation providing power with the Superintending Engineer and not with the Deputy Secretary.
6. Whereas Mr. Raval, submitted that the Deputy Secretary of the Electricity Board is higher in the authority and once the decision was taken for not correcting the birth date by the Deputy Secretary of the Electricity Board, the Superintending Engineer could not pass the order and in his submission, the said aspect was rather suppressed by the petitioner at the relevant point of time.
7. In my view, no opinion deserves to be expressed on the said aspect since the matter is to be considered afresh by the competent authority after giving opportunity of hearing to the petitioner on the aspect as to whether the order of the Superintending Engineer for the correction of the birth date should be treated as cancelled or not.
8. It also appears that pending the petition, the petitioner worked for the period from 01.01.2002 to 16.02.2002 under the interim orders passed in the present proceeding and if he has really worked during the said period, it is required for the respondents to pay the salary to the petitioner for the said period. Whether such period should be counted for the retiral benefits or not is an aspect which may be finalised after the decision of the competent authority, as may be directed hereinafter. However, the salary for the period the petitioner has actually worked under the interim orders of this Court is required to be paid by the respondents.
9. Mr.Raval submitted that he has no positive instruction as to whether salary is subsequently paid or not pending the petition.
10. Whereas Mr.Adesara states that as per his instruction, the salary has not been paid.
11. Be as it may, if the salary has not been paid, the same would be required to be paid and if the salary is already paid, no further action may be required for payment of salary.
12. In view of the aforesaid observations, following directions are issued:
A) The competent authority of the then Board (now Electricity Company) equivalent to the cadre of Chief engineer (General) shall reconsider the order dated 21.08.1995 passed by the the then Chief Engineer of the then Board after giving opportunity of hearing to the petitioner on the aspect as to whether the order dated 21.02.1973 passed by the Superintending Engineer for correction of the birth date of the petitioner should be treated as cancelled or not.
B) It is further ordered that in the event the correction of the birth date is maintained by the competent authority of the Electricity Company, appropriate orders shall also be passed for consequential benefits to the petitioner.
C) The aforesaid exercise shall be completed preferably within a period of four months of the receipt of the order of this Court in accordance with law. All rights and contentions of both the sides shall remain open.
D) The petitioner shall be paid salary, if not paid, for the period from 01.01.2002 till 16.02.2002 within a period of one month from the receipt of the order of this Court.
13. The petition is disposed of in terms of the aforesaid direction. Rule made absolute to the aforesaid extent. No order as to costs.
*bjoy (JAYANT PATEL, J.)