The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.6980 of 2023 In the matter of an application under Articles 226 and 227 of the Constitution of India. Sumati Nayak …. Petitioner -versus- State of Odisha & Others …. Opposite Parties For Petitioner : Mr. R. Mohanty, Adv. For Opp. Parties
Legal Reasoning
this Court in Para 5, 5.1 & 5.2 of the order dtd.12.04.2024 reads as follows:- “5. Having heard learned counsel for the parties and after going through the materials available on record, this Court finds that Petitioner while entered into service as a Peon, he had not passed the HSC examination and in the service Book so opened under Annexure-8, his Date of birth was recorded as 12.07.1948. But as found from the HSC Pass Certificate issued by the Board under Annexure-1 as well as Transfer Certificate issued by the School under Annexure-2, the date of birth of Petitioner is recorded as 12.07.1950. The said date of Birth was also recorded rightly in the Service Book opened in favour Page 8 of 9 of the petitioner under Annexure- 4, after he joined as a Diarist-cum-Typist on 15.02.1973. Placing reliance on the decision as cited supra, this Court is of the view that date of birth recorded in the HSC Pass Certificate is to be taken as the Date of birth for all purposes. 5.1. In view of the same, this Court is of the view that the date of Birth recorded as 12.07.1950 in Annexure- 4 should have been taken as the date of birth of the Petitioner and he should have been made to retire on 31.07.2008 in place of 31.07.2006. Page 3 of 9. 5.2. Therefore, this Court is inclined to quash the order dated 17.08.2006, issued under Annexure-7 and consequential rejection available vide order dt.16.11.2006 and Annexure-15. While quashing the order available at Annexure-7 and Annexure-15, this Court held the Petitioner to have continued in service till 31.07.2008. However, since the Petitioner has not discharged any duty for the period 01.08.2006 to 31.07.2008, he will not be entitled to get any salary for the said period. However, the pay of the petitioner be fixed on notional basis and pensionary benefits of the Petitioner be revised accordingly. After such revision of the pension and other pensionary benefits, differential amount be released in favour of the petitioner. The entire exercise shall be undertaken and completed by Opp. Party Nos.2 & 3 within a period of three (3) months from the date of receipt of this order.”
Arguments
: Mr. C.K. Pradhan, AGA PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY Date of Hearing: 16.01.2025 & Date of Judgment:16.01.2025 ------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode. 2. Heard learned counsel appearing for the parties. 3. Copy of the corrected Aadhar Card so filed by way of a memo be kept on record.. Page 1 of 9. 4.Petitioner has filed the present Writ Petition inter alia challenging office order dt.13.12.2022 so passed by Opp. Party No.4 under Annexure-3. Vide the said order by taking the date of Birth of the Petitioner as 01.01.1960, Petitioner was made to retire w.e.f 31.12.2019. 5. Learned counsel appearing for the Petitioner contended that Petitioner on regularisation of his service with opening of the Service Book so enclosed to the counter affidavit vide Annexure-C/4 series, date of birth of the Petitioner was recorded as 01.07.1969 with due endorsement of Opp. Party No.4 dt.11.08.2018. 5.1It is contended that taking into the account the date of birth of the Petitioner in the Service Book so available under Annexure-C/4 series, Petitioner was eligible and entitled to continue till he attain the age of superannuation on 30.06.2029. But without issuing any show cause and without giving due opportunity of hearing, Petitioner was made to retire from her services w.e.f 31.12.2019 vide the impugned order dt.03.12.2022 under Annexure-3. 5.2It is contended that since in the Service Book so opened after the Petitioner was regularised w.e.f 16.12.2015, date of birth of the Petitioner was recorded as 01.07.1969, Petitioner could not have been superannuated retrospectively w.e.f 31.12.2019 vide the impugned order dt.13.12.2022 under Annexure-3. It is contended that date of birth recorded in the Service Book is sacrosanct and the same was required to be taken as the date of birth for all purposes unless and until it is changed with due process of law. Page 2 of 9. 5.3. In support of the aforesaid submission, learned Counsel for the Petitioner relied on the decision of this Court in the case of The Management of M/s. Tata Refractories Ltd. Vs. State of Odisha & Ors. (W.P.(C) No. 7252 of 2014) decided on 14.12.2022. It is also contended that placing reliance on the aforesaid decision of this Court in the case of The Management of M/s. Tata Refractories Ltd., this Court vide order dtd.12.04.2024 in W.P.C.(OAS) No. 50 of 2018 also held the date of birth recorded in the HSC pass certificate is to be taken as the date of birth for all purposes. The view taken by
Decision
5.4. .It is accordingly contended that the impugned order is not sustainable in the eye of law and Petitioner is eligible and entitled to continue in her services till she attain the age of superannuation which falls due on 30.06.2029. 6. Mr. C.K. Pradhan, learned Addl. Govt. Advocate on the other hand placing reliance on the counter affidavit contended that date of Birth recorded in the Service Book of the Petitioner so available under Annexure-C/4 series was manipulated as no such document was available in the Service Record of the Petitioner showing her date of Birth as 01.07.1969. 6.1. It is contended that since no supportive document showing the date of Birth of the Petitioner was available in the Service Book of the Petitioner placing reliance on the date of birth recorded in the Aadhar Card so enclosed vide Annexure-A/4, date of birth of the petitioner was taken as 01.01.1960 Page 4 of 9. and petitioner was made to retire w.e.f 31.12.2019 vide order dt.13.12.2022 under Annexure-3. It is contended that since no supportive document was available showing the date of birth recorded in the Service Book of the Petitioner as 01.07.1969, after causing due inquiry and basing on the date of birth recorded in the Aadhar Card of the Petitioner so available under Annexure-A/4, Petitioner was made to retire w.e.f 31.12.2019 vide the impugned order under Annexure-3 by taking her date of birth as 01.01.1960. Accordingly, it is contended that the impugned order has been rightly issued and it needs no interference of this Court. 7. To the stand taken in the counter affidavit, learned counsel for the Petitioner made further submission basing on the stand taken in the rejoinder affidavit. 7.1.It is contended that in the Aadhar Card so available under Annexure- A/4 though the year of birth of the Petitioner was recorded as 1960, but basing on the date of birth recorded in the School Leaving Certificate so available under Annexure-5, Petitioner’s date of birth has been corrected as 01.07.1969. 7.2.It is contended that since the date of birth of the Petitioner has been duly corrected in the Aadhar Card by recording her date of birth as 01.07.1969 which is also apparent in Annexure-5, the ground on which the Petitioner was made to retire by taking her date of birth as 01.01.1960 is not sustainable in the eye of law. Page 5 of 9. 7.3. It is also contended that since no opportunity of hearing was given prior to taking such extreme step of making the Petitioner to retire w.e.f 31.12.2019 vide order under Annexure-3, in view of the settled position of law, the said order is also not sustainable. It is accordingly contended that appropriate order be passed by quashing Annexure-3 and by allowing the Petitioner to continue in her services till she attain the age of superannuation with regularisation of the break period of service with all service and financial benefit. 7.4. Learned counsel for the Petitioner contended that since the impugned order has been passed in violation to the principle of natural justice, the same is also not sustainable in the eye of law, in view of the decision of the Hon’ble Apex Court in the case of State Bank of India And Others Vs. Rajesh Agarwal & Ors., (2023) 6 SCC 1. Hon’ble Apex Court in Para 41 & 42 of the said judgment has held as follows:- “41. In State of Orissa v. Binapani Dei [State of Orissa v. Binapani Dei, AIR 1967 SC 1269], a two- Judge Bench of this Court held that every authority which has the power to take punitive or damaging action has a duty to give a reasonable opportunity to that an be heard. This Court civil action which administrative consequences must be made consistent with the rules of natural justice : (AIR p. 1271, para 9) further held involves “9. … The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is Page 6 of 9. protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed : it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” 42. In Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , a seven- Judge Bench of this Court held that any person prejudicially affected by a decision of the authority entailing civil consequences must be given an opportunity of being heard. This has been reiterated in a catena of decisions of this Court.” 7.5. It is also contended that even though basing on the letter dt.01.12.2022 so available under Annexure-D/4, Petitioner was made to retire by taking her date of Birth as 01.01.1960, but in Annexure-D/4 nothing was reflected showing the date of birth of the Petitioner as 01.01.1960. It is accordingly contended that the basis on which Petitioner was made to retire w.e.f 31.12.2019 by taking her date of birth as 01.01.1960 is not tenable in the eye of law. It is accordingly contended that the impugned order is not sustainable in the eye of law. 8. Having heard learned counsel for the parties and considering the submission made, this Court finds that Petitioner while continuing in service, on her regularisation, date of entry into Govt. Service of the Petitioner was reflected as 16.12.2015 with due opening of the service Page 7 of 9. book on 11.08.2018 so available under Annexure-A/4 series. In the service book so opened, date of birth of the Petitioner was recorded as 01.07.1969. This Court finds no manipulation or interpolation in the date of birth so recorded in the Service Book available under Annexure/C/4 series. But as found, basing on the letter issued by the Govt. on 01.12.2022 under Annexure-B/4, Petitioner was made to retire w.e.f 31.12.2019 vide the impugned order dt.13.12.2022 under Annexure-3. 8.1. The stand taken by the Opp. Parties that in the Aadhar Card so available under Annexure-A/4, year of birth of the Petitioner has been taken as 1960 and accordingly petitioner was made to retire w.e.f. 31.12.2019 vide the impugned order, is also not acceptable as in the meantime the same has been corrected by taking the date of birth of the Petitioner as 1.7.1969 which also tallies with the date of birth recorded in the School Leaving Certificate available under Annexure-5. It is also found that prior to taking such an extreme step of making the Petitioner to retire taking her date of birth as 01.01.1960 w.e.f 31.12.2019, Petitioner was never given an opportunity of hearing with due issuance of a show- cause. 8.2.Therefore, placing reliance on the decision as cited supra, the date of birth recorded in the Service Book was to be taken as to the date of birth of the Petitioner. The fact that Petitioner was never given an opportunity of hearing while taking her date of birth as 01.01.1960 and making her to retire w.e.f 31.12.2019 vide the impugned order dt.13.12.2022 and the Page 8 of 9. correction of the date of birth made in the Aadhar Card so produced in the Court today, this Court placing reliance on the decision in the case of Rajesh Agarwal as cited (supra) is inclined to quash order dt.13.12.2022 so passed by Opp. Party No.4 under Anexure-3. While quashing the said order, this Court directs Opp. Party No.4 to re-instate the Petitioner in her services with passing of an appropriate order within a period of two (2) weeks from the date of receipt of this order. The break period of service however be regularised by allowing financial benefit in favour of the Petitioner to the extent of 30% as the Petitioner without any fault of her own was kept out of employment for the period in question. The Writ Petition accordingly stands disposed of. Orissa High Court, Cuttack Dated the 16th Jan., 2025/sangita (Biraja Prasanna Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authenticaton of order Location: high court of orissa, cuttack Date: 27-Jan-2025 15:40:59 Page 9 of 9.