Court No. - 39
Case :- WRIT - A No. - 5272 of 2015 Petitioner :- Shahid Khan And Anr.
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Dr. Rajesh Kr. Srivastav Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order dated 16.2.2012, passed by respondent no.3, whereby minimum salary to petitioner's father has been stopped with a further direction to conduct an enquiry with regard to correctness of the date of birth of petitioner's father. A subsequent order dated 6.6.2013 has also been challenged, rejecting the claim of petitioner's father for regularization, on the ground that he had superannuated on 31st December, 2009, and was therefore not in service when his juniors were considered for regularization.
2. It is admitted on record that father of petitioner no.1 and husband of petitioner no.2, Late Nishar Ahmad, was appointed as a daily wage Class-IV employee in the Forest Department of the State in June, 1988. He continued to work and by a specific order passed in the year 2003, he was allowed wages in minimum of pay scale. He continued to work and also received salary in the minimum of pay scale. It was only by the orders impugned that a doubt was raised regarding correct date of birth of petitioner's father. The records would also shown that a seniority list was prepared under the orders of the Hon'ble Supreme Court in the case of State of U.P. and others vs. Putti Lal, 2002 (2) UPLBEC 1595. The seniority list is Annexure-3 to the writ petition and is not in issue. Name of petitioner's father is mentioned at serial no.14 and his date of birth is shown as 1.1.1959 with his qualification shown as 8th pass. The year of engagement in the forest department is shown as 1988 and grant of minimum wages w.e.f. 1.3.2003. It is also apparent that persons who were placed after the petitioner's father in the aforesaid seniority list have been regularized on 24.10.2011, but claim of petitioner's father apparently was overlooked on the premise that his date of birth was 1.1.1950, and consequently, he had superannuated on the date his juniors were considered for regularization.
3. The orders of the authorities are challenged on the ground that the correct date of birth of petitioner's father is 1.1.1959, as is clearly mentioned in the seniority list also, and therefore the authorities could not treat his date of birth as 1.1.1950. It is also submitted that in the enquiry, which has been conducted subsequently under the order dated 16.2.2012, the concern educational authorities have certified the date of birth of petitioner's father as 1.1.1959.
4. A counter affidavit has been filed opposing the contentions made in the writ petition.
5. I have heard learned counsel for the parties and have perused the materials brought on record.
6. The seniority list clearly records that the date of birth of petitioner's father is 1.1.1959. In the enquiry proceedings which have subsequently been undertaken, the higher primary institution from which petitioner's father had passed Class-VIII has clearly certified that date of birth of petitioner's father is 1.1.1959. The photocopy of the service book has also been produced before the Court, in which there appears to be an apparent overwriting on the date of birth as 1.1.1950, and it is not clear that whether the date of birth is 1.1.1950 or 1.1.1959. The consistent record of the respondents clearly acknowledges the fact that the date of birth of petitioner's father was recorded as 1.1.1959. In para 4 of the counter affidavit also it is stated that though the date of birth was initially mentioned as 1.1.1950 but the same was corrected as 1.1.1959.
7. From the materials that have been placed and referred to above, it is apparent that in all relevant records of the respondents the date of birth of petitioner's father is mentioned as 1.1.1959. It is admitted in the counter affidavit also that date of birth of petitioner's father was corrected as 1.1.1959. This appears to be in consonance with the certificate issued by the concern educational authorities, as per which the year of birth of petitioner's father is 1959. It is also asserted that persons junior to petitioner's father have been regularized in the year 2011. In such circumstances, the respondents would not be justified in denying consideration to petitioner's claim merely on the ground that he attained the age of superannuation by the time his juniors got regularized.
8. Writ petition, consequently, succeeds and is allowed. Orders dated 16.2.2012 and 6.6.2013 stands quashed. The respondent authorities are directed to re-visit the issue, keeping in view the observations made above and to extend all consequential benefits, which would be admissible to petitioners, within a period of four months from the date of presentation of certified copy of this order. Claim of petitioner no.1 for grant of compassionate appointment would also be considered, in accordance with law.
Order Date :- 29.11.2019 Anil