The prayer in the writ petition is for a writ of Certiorarified Mandamus to call for the records on the file of the respondent No.1 relating to the proceeding dated 19.04.2010 and quash the same and further direct the respondent No.1 to reinstate the petitioner in the first respondent panchayat.
2.The petitioner was appointed as Scavanger in the year 1966 at the first respondent Panchayat. Thereafter, in order to make a service record on the petitioner, the first respondent wanted a proof for his age and other qualifications, since the petitioner, as claimed by the learned counsel for the petitioner, is an illiterate, he approached the hospital concerned and after having verified the physical fitness, the Doctor gave a certificate on 20.04.1988 by stating that the petitioner was at that time 48 years old.
3.Based on the said Medical Certificate declaring the age of the petitioner as 48, the petitioner's Service Record was entered by the first respondent with that age. However, at the time of making the entry in the Service Record, instead of entering the correct date of birth as 20.04.1950, it was wrongly entered as 20.04.1955 and therefore, the first respondent passed the impugned order on 19.04.2010 stating that as per the original date of birth ie., 20.04.1950, the petitioner has attained the age of superannuation by 20.04.2010 and therefore, at the end of the said month, ie., on 31.04.2010, the petitioner has to retire from service. Challenging the said order, the petitioner has come up with the present writ petition with the aforesaid prayer.
4. Heard the learned counsel for the parties.
5. The learned counsel for the petitioner would contend that actually, the petitioner's date of birth was not entered into in birth register and only based on the physical fitness of the petitioner, certificate was issued by the Doctor and no doubt, certificate dated 20.04.1988 was issued by the Doctor, wherein, the age was approximately fixed as 48 years. However, the actual date of birth of the petitioner is in the year 1955. In this regard, the learned counsel for the petitioner would rely upon yet another Doctor Certificate, dated 21.06.2012, by which, the age of the petitioner was fixed as on the said date ie., 21.06.2012, as 57 years. The learned counsel for the petitioner would submit that if the respondents rely upon the Doctor Certificate dated 20.04.1988, the respondents should also rely upon the Doctor Certificate produced by the petitioner dated 21.06.2012. She also submits that if the respondents do not rely upon the Certificate produced by the petitioner for his age proof, dated 21.06.2012, the same yardstick should be adopted by the respondents in respect of the Certificate dated 20.04.1988. At any rate, since there is no birth certificate or any other school certificate showing the correct date of birth of the petitioner, the benefits shall be given to the petitioner.
6. On the contrary, the learned Additional Government Pleader for the 2nd respondent and the learned counsel for the first respondent would contend that the Certificate of the year 1988 was produced only by the petitioner, where the Government Doctor, after having examined the physical fitness of the petitioner, gave the Certificate giving the age of the petitioner as 48 years, during the year 1988. Only based on which, the petitioner's age was entered in the Service Record. The only mistake done at the office of the 1st respondent, at the time of entering into the service record of the petitioner, is that instead of entering the date of birth of the petitioner as 20.04.1950, it was mistakenly entered as 20.04.1955. Merely because of such wrong entry, the petitioner cannot claim any right to continue in the post, even beyond the date of superannuation, ie., on 20.04.2010. Therefore, there is no justification on the part of the petitioner to seek extension of service beyond the said date of superannuation and in that view of the issue, the impugned order passed by the first respondent is fully justifiable and needs no interference.
7. This Court have considered the said rival submissions made by the learned counsel for the respective parties.
8. At the time of admission of this writ petition, this Court granted an interim order of stay on 14.05.2010 and pursuant to the same, the petitioner's service was not dispensed with and all along, the petitioner had worked at the first respondent office till the date of superannuation, even according to the petitioner, ie., on 31.03.2015. For these period, the salary due for the petitioner has admittedly been paid by the first respondent. However, the grievance of the petitioner still is that though the petitioner was permitted to work up to 31.03.2015, of course, pursuant to the interim orders passed by this Court, certain service benefits conferred on such Scavanger/Sweepers working in Local Bodies, as has been provided by the Government order in G.O.Ms.No.39 Rural Development Department dated 07.05.2013, has to be extended to him.
9. As has been pointed out by the learned counsel for the petitioner, there are two certificates from the medical side, giving two different version about the age of the petitioner. One is that of the year 1988 and another is at the year 2012. If the first one is taken into account, certainly, a question would arise, why the second one should not be taken into account. If the first one is liable to be rejected, then the same question would arise that why not the 2nd one should also be rejected. When that being the position, with regard to the proof of the age of the petitioner, whether the benefit can be given as claimed by the petitioner or not, cannot be decided merely based on these certificates.
10. In this regard, the learned counsel for the first respondent would contend that based on the earlier certificate, where the age of the petitioner was fixed as 48, the age was entered in the Service Register and merely because, wrong entry was given instead of giving the year 1950, it was given as 1955, that will not give any leverage to the petitioner to claim the benefit of extending the service that too for five years beyond the actual date of superannuation.
11. But the fact remains that on the strength of the interim order passed by this Court, the petitioner has worked till 31.05.2015, for which, salary has also been paid to him. Some benefits, still the petitioner wants to be conferred on him based on the subsequent G.O. in the year 2013, cannot be claimed by the petitioner, as according to the respondents, the petitioner attained the age of superannuation in the year 2012 itself. The extension was not given by the respondents and only because of the interim order of this Court, the petitioner was permitted to work up to 2015. Therefore, during the interregnum, if any Government order has come into effect, which, gives some service benefits to the similarly placed persons, the same cannot be pressed into service for the person, like the petitioner, whose continuance in the service is itself doubtful.
12. Therefore, in the given circumstances of the facts of the case, this Court is of the considered view that the petitioner's continuance up to 2015 can be treated as work period only for the purpose of payment of salary. Since admittedly, the said salary has been paid to the petitioner, no other benefits can be conferred on the petitioner, especially, pursuant to the said Government order in the year 2013. However, if any regular benefits dehors the said G.O., for which, the person like the petitioner is entitled to, such as Pongal Bonus and other benefits, it shall be calculated and given to the petitioner.
13. In the result, the impugned order, since has not been implemented by virtue of the interim order passed by this Court and during the pendency of the writ petition, since the petitioner has completed the five years service, as claimed by him through this writ petition, the same need not be interfered with. However, the work done by the petitioner between 2010 and 2015 shall be treated as work period, for which, the petitioner is entitled for full salary. Since the said salary has been admittedly paid to the petitioner, no further salary due is for the petitioner from the first respondent.
14. Since the petitioner's age, though was disputed and has not been resolved and before which, since the petitioner has completed full service period upto 2015, no other service benefits shall be conferred on the petitioner, more particularly, on the basis of the G.O. in the year 2013. However, the petitioner shall be entitled to get any other usual service benefits such as pongal bonus etc, during this period between 2010 and 2015, apart from that the petitioner shall not be entitled for any other pay benefits as claimed by him.
15. With the above observations and directions, the writ petition is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.
To
1.The President Karivalamvanthanallur Panchayat, Sankarankoil Taluk, Tirunelveli District.
2.The District Collector, Tirunelveli, Tirunelveli District .