Himachal Pradesh High Court
Dile Ram vs State Of H.P. And Ors. on 12 July, 2007
Equivalent citations: 2007(2)SHIMLC312
JUDGMENT
Vijay Pal Singh, Member (Adm.)
1. The applicant herein has prayed for the grant of following reliefs:-:
(i) to direct the respondents to release all the benefits to the applicant under Demobilized Armed Forces Personnel (Reservation of Vacancies in Himachal State Non-Technical Services) Rules, 1972;
(ii) the applicant after releasing all the service benefits like seniority/promotion, pay fixation etc. be considered for fixation of pensionary benefits.
In brief, the case of the applicant as made out in this Original Application is that the" applicant was enrolled in the Army in Electrical and Mechanical Corps on 12.10.1963 and was transferred to Reserve-Cum-Establishment on 1.1.1979 after serving for 15 years 2 months and 20 days. Thereafter, the applicant was appointed as Forest Guard on 14.2.1992 in the respondent-department through Secretary State Selection Committee and Sub-Employment Officer (Ex-servicemen Cell), Hamirpur, Himachal Pradesh and he joined duty on 24.2.1992.-The applicant gave his option alongwith necessary documents for considering him as an Ex-serviceman under the Demobilized Rules, 1972 for all benefits and purposes. The applicant was asked to clarify about his correct date of birth vide endorsement dated 23.2.1995 (Annexure P-B) of Divisional Forest Officer, Nachan, Forest Division, Gohar. The Annexure P-B was duly replied and all the requisite information including School Leaving Certificate issued by the Headmaster, GHS Barli Chowki dated 19.2.1979 was furnished to the respondents. The applicant persistently pursued his case, but due to carelessness of the respondents no such benefits have been given to the applicant. There is a continuous cause of action, hence, this Original Application.
2. The respondents have contested the claim, of the applicant. In the reply filed by the respondents, the facts not admitted are that the case of the applicant for counting his approved Military Services was moved to Conservator of Forests, Mandi Circle by the Divisional Forest Officer, Nachan Forest Division, Gohar vide letter dated 4.1.1995 Annexure R-R and the same was recommended to Principal Chief Conservator of Forests, H.P. by the Conservator of Forest Officer vide letter dated 17.1.1995 (Annexure R-3). The Principal Chief Conservator of Forests, H.P. Shimla has raised the objections with regard to date of birth of the applicant which was recorded as 12.10.1943 in Army record as per Appendix-B annexed as Annexure R-IV, whereas on re-employment of the applicant in Civil post, the applicant produced Middle Standard Certificate Annexure R-V showing his date of birth as 26.11.1944 and School Leaving Certificate issued by Headmaster, Government High School, Bali Chowki issued on 19.2.1979 Annexure R-VI. Such objections with regard to the date of birth was communicated to applicant vide Annexure P-B through Range Officer, Thachi, but till date of retirement, the applicant did not reply the objections and his case for allowing Military services benefit could not be processed without proper identity. It is further submitted that he produced Middle Standard Examination Certificate issued on 7.3.1962 showing his date of birth as 26.11.1944. Since the Middle standard certificate was issued on 7.3.1962 and he got himself enrolled in Army on 12.10.1963, so it is clear that the applicant had made forgery in getting the job in Armed Forces by shielding the reality. In case his date of birth as recorded in Army record could have been taken as base for re-employment in civil post, he should have been retired 13 months before his retirement, that is, 31.10.2001 instead of 30.11.2002 which date he actually retired. By this way, the applicant has forged/cheated Centre Government as well as State Government, hence, no benefits of Demobilized Armed Forces is required to be given to the applicant. The present Original Application is devoid of merit and the same may be dismissed in the interest of justice.
3. In the rejoinder, the applicant has denied the grounds of defence taken by the respondents and reiterated the averments made by him in the Original Application and further stated that while joining of Army, copy of Middle Standard passing Certificate as well as School leaving certificate of 10th class certificate were submitted to the Recruiting authorities. The applicant has never happened to see his record as it is not shown to the soldiers and at the time of retirement, no alteration of age etc. is possible being not done by them. The requisite documents, that is Middle Standard Certificate and School leaving certificate were submitted by the applicant at the time of joining the service. However, the applicant was enlisted in the Army approximately at the age of 19 years. There is no question of cheating or/joining the Army by giving wrong date of birth certificate while minimum recruitment age in the Army is 18 years. The requisite documents, that is, Middle Standard passing certificate, School leaving certificate and Army record, that is, discharge certificate were submitted by the applicant at the time of joining the respondent department as Forest Guard. So, it was the duty of the respondents-department to consider the age of the applicant either as per their choice or as per Civil Rules which might have been taken into consideration and the applicant was retired after superannuation. The applicant is entitled to the reliefs claimed by him.
4. We have heard the learned Counsel for the parties and perused the record.
5. It was contended by the learned Counsel for the applicant that all requisite certificates, that is, Middle Standard examination certificate, School leaving certificate and discharge certificate from the Army were submitted by the applicant at the time of his re-employment in the respondent-department. The clarification about his age, as asked by the respondents, was also replied. The applicant was enrolled in the Army on 12.10.1963 on which date he was more that 18 years, whereas the minimum recruitment age in the Army is 18 years. As such, there is no question of cheating or joining the Army by giving wrong date of birth as alleged by the respondents. The applicant never happened to see his record as it is not shown to the soldiers and at the time of retirement, no alteration of age is possible being not done by them. The applicant has retired from his service on attaining the age of superannuation on the basis of his age recorded at the time of re-employment. Therefore, respondents are duty bound to give the benefits of approved Army service of the applicant by taking into account the date of birth as 26.11.1944.
6. On the other hand, the Learned Additional Advocate General has contended that objections with regard to the date of birth were duly communicated to the applicant, but he did not reply the objections till his date of retirement, as such, his case could not be processed for want of reply/clarification from him.
7. It is not in dispute that the date of birth of the applicant was recorded as 12.10.1943 in Army record and on his re-employment as forest guard in respondent-department his date of birth has been recorded as 26.11.1944 on the basis of his Middle standard examination certificate Annexure R-5 and School leaving certificate Annexure R-6. The applicant has retired on 31.11.2002 after attainment of 58 years of age reckoned from 26.11.1944 i.e. the date of birth recorded at the time of his re-employment.
8. This is also not in dispute that the applicant was enrolled in the Army on 12.10.1963 on which date he was more than 18 years on the basis of his date of birth as recorded in his School record. The claim of the applicant that minimum recruitment age in Army is 18 years, is not disputed by the respondents. Therefore, in view of this admitted position, it cannot be said that applicant got any undue advantage because of/on the basis of this date of birth.
9. The respondents-department has already allowed the applicant to work till he retired on attaining the age of superannuation by taking into consideration the date of birth of the applicant as recorded at the time of his re-employment on the basis of contemporaneous and authentic proof of age, which action of the respondents is in conformity with the provisions of Rule 7.1 read with Note -I (b)(c) Himachal Pradesh Financial Rules, 1971 Volume-I, which prescribes the procedure to be adopted in recording the age of person who first entered in military employment and subsequently re-employed in Civil department. Therefore, the age of the applicant, as recorded at the time of his re-employment will be his age for all intents and purposes.
10. In view of aforesaid conclusion, the respondents have no cause or reason to deny the benefit of admitted approved military service to the applicant.
11. In view of the above discussion and conclusion, respondents are directed to give the benefits to the applicant of his approved Army service with all consequential benefits by taking into account his date of birth as 26.11.1944 within three months from the date of this order.
12. The Original Application is disposed of in terms of above orders with no order as to costs.