Court No. - 39
Case :- WRIT - A No. - 56040 of 2015 Petitioner :- Saroj Respondent :- State of U.P. and Another Counsel for Petitioner :- Anoop Baranwal,Ajeet Kumar Baranwal Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Despite stop order passed on 30.8.2016, no counter affidavit has been filed. Writ petition is, therefore, taken up for final disposal by applying the doctrine of non-traverse.
Petitioner's mother was appointed as Anusewak in the year 1990. She retired in the year 2012 and it is not in dispute that all retiral benefits due and payable to petitioner's mother has already been paid. Petitioner's mother later died on 15.11.2014. After her death an application for grant of compassionate appointment has been filed by the petitioner stating that in the service records of her mother the year of her birth was earlier mentioned as 1955, therefore, she had to attain the age of 60 years in the year 2015 and consequently, petitioner's claim for compassionate appointment was liable to be considered, since her mother died while she was entitled to continue in employment.
After such claim was not considered a writ petition was filed before this Court. The writ petition was dismissed but a Special Appeal No. 321 of 2015, filed against it, was disposed off vide following order passed on 20.5.2015:-
"We, accordingly, allow the special appeal and set aside the order of the learned Single Judge 17 April 2015. The competent authority is directed to decide, with due notice to the appellant, within a period of three months of the receipt of a certified copy of this order, whether the year of birth recorded in the service book of the deceased employee was indeed correct or otherwise and to determine the correctness of the claim of the deceased employee and the appellant. Depending on the outcome of the aforesaid enquiry, the case of the appellant for compassionte appointment would be considered in accordance with law, if it is found that the employee had died while in harness.
We clarify that all questions of fact are expressly kept open.
The special appeal is, accordingly, disposed of. There shall be no order as to costs. "
It is pursuant to the order passed in the Special Appeal that petitioner's claim has been considered by the State Government vide order impugned dated 14.8.2015. This order records that the only document available for recording the age of petitioner's mother is a doctors certificate dated 21.9.1998 which records following two statements. (i) the candidate's age according to her statement is 35 years' and (ii) by appearance she is 38 years.
It has been observed that second part of the doctor's report alone expresses his opinion, as per which the age of petitioner's mother would be 38 years in 1998. Her year of birth would work out to approximately 1952. It is further observed that claim regarding age of petitioner's mother being 35 years as per the report is based on her own assessment and not upon the assessment of the doctor. The correction in the year of birth from 1952 to 1955 has accordingly been maintained. The order impugned, moreover, records that all retiral benefits were received by the petitioner's mother after she attained age of superannuation in the year 2012 and no protest what so ever was made by her. It is recorded that after her death, it would not be open for the petitioner to raise a claim disputing her date of birth or to seek compassionate appointment.
I have heard Sri Ajeet Kumar Baranwal, learned counsel for the petitioner and the learned Standing Counsel for the State and also perused the materials on record.
The averments made in the order of the State Government dated 14.8.2015 are not in issue. A categorical finding is recorded in the order that the only material on record to determine the age of petitioner's mother is the doctor's certificate. As per the certificate, the age, according to petitioner, is 35 years but in the opinion of the doctor, the age is found as 38 years.
Relying upon the report of the doctor, the date of superannuation of petitioner’s mother has been fixed. It is also recorded that no protest at that stage was made and the petitioner's mother accepted all retiral benefits. Though the finding that her alleged representations made in the year 2011 and 2012 appears to be fake, is strongly challenged, but no material has been placed to discredit the observation contained in the order impugned. Petitioner's mother was given compassionate appointment in 1990and she superannuated in 2012. The determination of age of petitioner's mother is based upon the doctor's certificate and no other material is available on record. The order of the State Government, therefore, would not require any interference in the facts of the case.
Writ petition fails and is accordingly dismissed.
Order Date :- 27.11.2019 n.u.