Hon'ble Harsh Kumar,J.
Ref:- Civil Misc. Delay Condonation Application No. 1 of 2018.
Having heard the learned counsel for the appellant and the learned Standing Counsel, we find sufficient cause shown.
The delay is condoned.
The appeal shall be treated to be within time and shall be given a regular number.
Order on Appeal.
Heard Ankita Jain, learned counsel for the appellants, the learned Standing Counsel for the respondent nos. 1, 2 & 4 and Sri S.S. Chauhan, learned counsel for the respondent no. 3.
The deceased-appellant, Vijay Singh claimed himself to be a Class-IV employee in the respondent no. 3 institution recognized under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder.
The background in which the present litigation has to be understood is the direction issued by a learned Single Judge of this Court in two earlier writ petitions filed by the appellant with regard to his continuance in service.
The grievance of the appellant was that he was being illegally discontinued from service on the ground that he had actually attained the age of superannuation and therefore his further continuance was unwarranted. Writ Petition Nos. 21502 of 1997 and 11195 of 1991 were disposed of on 9th April, 2007. The judgement whereof is extracted hereinunder:-
"List has been revised.
Heard counsel for the petitioner. Sri Daya Shankar, counsel for the respondents is not present.
The petitioner has prayed for issuance of a writ of certiorari for quashing the order dated 25.6.97 passed by respondent no.3, Principal, Rashtriya Uchattar Madhyamik Vidyalaya, Jinehara, Mirachi, District Etah. It has further been prayed that the respondents may be directed to permit the petitioner to continue on the post of Mali till the year 2003 and to pay him salary w.e.f. December 1996 and arrears w.e.f. October, 1977 to 1999.
The petitioner was appointed on the post of Mali on 7.7.1997 in a clear vacancy in the aforesaid Vidyalaya and retired on 18.6.97 from service.
The counsel for the petitioner has relied upon a certificate issued by the Chief Medical Officer, which states that according to the own statement of the petitioner he is 52 years of age and by appearance he appears to be 53 years of age.
The certificate issued by the Chief Medical Officer, Etah dated 30.12.96 is as under:-
izzs"kd] eq[; fpfdRlk vf/kdkjh] ,VkA egksn;] vkids i=kad [email protected] 21-12-96 ds lUnHkZ esa lwfpr djuk gS fd [email protected] fot; flag [email protected]=h Jh rksrkjke fuoklh ftUgSjk Fkkuk fejgph tuin ,Vk vkt fn0 30-12-96 dks esjs le{k vk;q izek.k i= gsrq mifLFkfr gq;[email protected];h eSaus buds LokLF; dh tkWp dhA blds dFkukuqlkj budh vk;q 52 o"kZ gS rFkk ns[kus esa mudh vk;q yxHkx 53 o"kZ izrhr gksrh gSA Hkonh;
g0 vLi"V eq[; fpfdRlk vf/kdkjh ,VkA The allegation of the petitioner is that he has been prematurely retired from service as he had not attained the age of 60 years on 18.6.1997 according to the certificate issued by the Chief Medical Officer, Etah by whom he was medically examined on the direction of respondent no.3, as such the age certificate issued by the Competent Authority can not be ignored by the respondents.
Any disputed question of fact regarding determination of age of the petitioner involved in a present writ petition should be got adjudicated by the alternate forum as it is not proper for High Court to decide questions of facts in writ jurisdiction by taking oral and documentary evidence.
The High Court cannot determine the factual question regarding the date of birth merely on the basis of statement or certificate issued by the Chief Medical Officer. The question of age can only be decided on the basis of irrcorrigible documents such as High School Certificate or the document such as medical test i.e. Ossification test of bones. From perusal of the above certificate it appears that the Chief Medical Officer has not issued the certificate regarding the age of the petitioner after conducting the scientific test of ossification test of bones.
In the circumstances, petition no. 21502 of 1997 is disposed of finally with a direction that the petitioner shall present himself before the District Inspector of Schools, Etah within one month from today who will refer the matter to the Chief Medical Officer, Etah for conducting the Ossification test of bones for determination of approximate age of the petitioner within two weeks of receipt of the reference. The Chief Medical Officer will get the age of the petitioner determined on the basis of ossification test of bones within one week thereafter. The District Inspector of Schools will pass appropriate orders in respect of the grievance of the petitioner keeping in view the result of the medical test of ossification of bones conducted by the Chief Medical Officer thereafter.
In so far as Civil Misc. Writ Petition No. 11195of 1991 is concerned, the only prayer of the counsel for the petitioner at this stage is that a direction may be issued to the petitioner to move a representation regarding his grievance and the authority concerned may also be directed to decide the representation of the petitioner within a time bound frame fixed by this Court.
In the circumstances, without entering into the merits of the case, writ petition no.11195 of 1991 is also disposed of finally with a direction that in case the petitioner files a representation raising his grievance for payment of salary before the authority concerned within two weeks from the date of production of a certified copy of this order, the same shall be decided by the authority concerned by a reasoned and speaking order, in accordance with law, within a period of three months thereafter."
A modification application was filed in the said writ petition which was also disposed of on 25th October, 2007. The order dated 25th October, 2007 is extracted hereinunder:-
"Heard learned counsel for the parties.
The contention of Sri Daya Shanker counsel for the respondents is that undisputed fact on record is that in May 1977 Sri Rajendra Singh permanent Mali of the College proceeded on leave from May to December, 1977. He however, returned and joined his duties in January, 1978 and continued to serve till he retired. It was in this leave vacancy of May to December 1977 that the then Principal engaged the services of the petitioner for a short and fixed terms aforesaid. His engagement was wholly adhoc and after December 1977, the petitioner was never engaged by principal or Committee of Management nor any order of his appointment or approval was passed by the D.I.O.S. Etah, as such, petitioner was not entitled to payment of any salary after December, 1977.
It is submitted that the petitioner continued to cheat and play fraud with the respondents and in the subordinate Courts and elsewhere by obtaining ex parte orders on false and incorrect statements of facts and concealment of relevant documents which have been brought on record by the repsondents in the two connected writ petition nos. 11195/91 and 515/97 It is further submitted that petition did not serve any copy of the ex parte order dated 9.4.2007 upon the respondents so far.
The respondents and their counsel had no knowledge of the ex parte order and the judgement dated 9.4.2007 that when Shiva Kumar Pathak Principal of the College, respondent No. 3, asked his counsel about the present position of the case, whereupon an enquiry was made in the office of the High Court and then learnt about the ex parte order. Thereafter, an application for certified copy of the judgement dated 9.4.2007 was moved on 18.5.2007 and accordingly certified copy was issued on 21.5.2007 and that there has been no laches or negligence or delay on the part of the respondent or their counsel in filing the present recall/ Restoration/Modification application.
In the circumstances, the order dated 9.4.2007 is accordingly modified. The application for recall/modification is accordingly allowed.
As the order has been modified, the ossification test may now be conducted within a period of two months from today and the D.I.O.S. may decide the representation of the petitioner pursuant to the order dated 9.4.2007 after inviting objection from the respondents by a reasoned and speaking order in accordance with law. The D.I.O.S. will particularly address himself also to the question of appointment/service of the petitioner as to whether he is entitled to any benefits of his employment/service in the circumstances of the case."
A perusal of the aforesaid orders would clearly indicate the extent of which the litigation that had been decided earlier between the parties. Thus, the dispute boiled down to an Ossification Test to be conducted for the purpose of assessing the actual age of the appellant in order to determine as to whether he deserves to be superannuated or not. According to the learned counsel no such Ossification test appears to be have been carried out nor there is anything on record to indicate that any Ossification Test was actually carried out. There is no report available so as to ensure the compliance of the aforesaid direction of the High Court.
It is in this background that an order was passed by the District Inspector of Schools on 07.06.1997 calling upon the institution to superannuate the appellant. The principal who is the appointing authority of Class-IV employees under the regulations framed under the U.P. Intermediate Education Act, 1921 proceeded to pass the order of superannuation of 18.06.1997 in compliance of the said directions of the District Inspector of Schools.
The principal also intimated the aforesaid action taken, to the District Inspector of Schools vide letter dated 25.06.1997.
It is thereafter that the litigation ensued and the orders were passed. The District Inspector of Schools passed a fresh order on 26th April, 2008 wherein it was held that according to the material available on record the appellant had obtained orders from the Civil Court by concealing material facts and even otherwise his physical appearance would also indicate that he was above 60 years of age. It was further held that the copy of the family register indicated that the month and year of birth of the appellant was August, 1933 and accordingly he had already attained the age of 64 years. In the wake of the aforesaid evidence, it was finally held that the deceased-appellant Vijay Singh had attained the age of 60 years which is the age of superannuation of Class-IV employee in 1993 itself. It is this order which came to be challenged in the writ petition giving rise to the present appeal.
During the pendency of the writ petition, the appellant Vijay Singh died and he was substituted by the second appellant no. 1/1 before this Court. The writ petition was dismissed treating the facts relating to the age of the appellant to be raising disputed questions of fact. Since it was not possible to adjudicate the said controversy in a writ petition coupled with fact that the original petitioner had died in the year 2011, the Court did not find it appropriate to exercise discretion in favour of the heir of the deceased-appellant.
Certain doubts have also been expressed in paragraph nos. 6 & 7 of the judgement that even if the issue of the service book being fake and manipulated is ultimately found to be against the appellant, the same may incur a criminal liability.
Learned counsel submits that criminal liability cannot be of the appellant inasmuch as the service book was either in the custody of the employer or of the employee, and the appellant being only the heir of the deceased, he cannot be charged with any offence inasmuch as the document had been filed by the original petitioner and not by the appellant. Learned counsel submits that the there are erroneous assumptions of fact and law and merely because there are disputed questions of fact involved, the same did not denude the learned Single Judge of the powers under Article 226 of the Constitution of India to proceed with the matter.
Learned counsel for the appellant has relied on the Apex Court judgement in the case of Ariel International Ltd. Vs. Export Credit Guarantee Corporation 2004 4 SCC 553 to contend that even disputed questions of fact can be looked into by the High Court in the exercise of powers under Article 226 of the Constitution of India.
At the very outset, we may clarify this position of law that it is only seriously disputed questions of fact which the Court does not find it convenient to proceed as it would require leading of evidence and proving of documents. Restraint is exercised by writ Courts in proceedings where such serious questions of fact are disputed, but the position of law as urged by the learned counsel for the appellant does indicate that the writ jurisdiction can also be invoked if there is a disputed question of fact for which we also find support from another judgement of the Apex Court in the case of Cholan Roadways Limited Vs. G. Thirugnanasambandam 2005 3 SCC 241, the Apex court ruled as under:
"35. Errors of fact can also be a subject-matter of judicial review. (See E. v. Secretary of State for the Home Department 2004 2 WLR 1351. Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. Titled 'Judicial Review, Appeal and Factual Error' published in 2004 PL 788.
36. The impugned judgment, therefore, cannot be sustained and, thus, must be set aside."
In the present case what we find is that it is correct that the Ossification Test as directed by the High Court was not carried out and therefore the issue is as to whether the age of the appellant was 60 years in 1993 or otherwise does amount to a seriously disputed question of fact, but at the same time the impugned order of the District Inspector of Schools categorically brings on record the consideration of the extract of the family register of the appellant. The extract of the family register is issued under the provisions of U.P. Panchayat Raj (Maintenance of Family Registers) Rules 1970 being a public document that is admissible in evidence. The appellant could not contradict the said document by any cogent material on record and the absence of the Ossification Test therefore cannot lend any support to the appellant when there is documentary evidence on record.
We therefore hold that District Inspector of Schools was fully justified in arriving at the conclusion that the appellant had attained the age of superannuation and therefore he deserved to be superannuated. To that extent the judgement of the learned Single Judge does not require any interference by this Court.
However, we find from the record of the writ petition that the petitioner had also prayed for a mandamus for the consideration of payment of post retiral benefits. In this regard the learned Standing Counsel has taken a stand that since the appellant had been virtually removed from service on account of manipulation in the service book, he is not entitled for consideration of any such pensionary benefits and consequently, the said relief cannot be granted.
We are unable to agree with this proposition for the simple reason that the District Inspector of Schools vide order dated 7th June, 1997 directed the institution to superannuate the appellant. It is also on record that an interim order had been passed as a result whereof the deceased-appellant continued to get salary and therefore the Principal of the institution rightly passed the order in compliance of the order of the District Inspector of Schools on 18th June, 1997 superannuating the appellant from the post of a Class-IV employee in the institution. This is the undisputed position as per the documents on record. The contention of the learned Standing Counsel therefore that that appellant's superannuation would amount to removal, dismissal or termination of service, deserves rejection. The deceased-appellant will therefore be deemed to have superannuated from his post.
In view of the findings recorded hereinabove, we find that the learned Single Judge has omitted to consider the aforesaid aspect of the matter in spite of a specific prayer made in this regard in the writ petition.
We therefore partly allow the appeal. We confirm the order of the District Inspector of Schools dated 07.06.1997 issuing a direction to retire the deceased-appellant Vijay Singh and we also uphold the order of superannuation dated 18th June, 1997.
The deceased-appellant shall be treated to have retired from his post and therefore post retiral benefits shall ensue.
However the question of such post retiral benefits would be also dependent upon the calculation of the amount which has been received as salary by the appellant after having attained the age of superannuation. The said adjustment being a factual exercise has therefore to be determined while passing the pension payment order. To that extent the appeal is allowed and the impugned judgement dismissing the petition in its entirety is set aside.
We therefore dispose of this appeal with a direction to the District Inspector of Schools, Etah to examine the claim of the deceased-appellant Vijay Singh through his legal heir/heirs for grant of any emoluments arising out of pensionary benefits that may be admissible in accordance with law in the light of the observations made hereinabove and pass appropriate orders as expeditiously as possible preferably within three months from the issue of certified copy of the order before him.
Order Date :- 26.10.2018 P Kesari