Dismissed

Dattatray Vishram Karale v. the State of Mah and Ors.

Bombay HC29 Sept 2010WP/2905/2010

Case brief

AI extract

What is this about?

Petitioner, a retired lecturer, sought direction to grant approval of services for a period following superannuation based on a corrected date of birth established in a civil suit. The court rejected the writ petition, holding the application for date correction was barred due to delay and no money liability was fastened on the respondent.

What the court decided

AI extract

Dattatray Vishram Karale Vs the State of Mah… — Pension and Retirement Benefits | Bombay HC (2010)

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FARAD CONTINUATION SHEET NO.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2905 OF 2010 “Dattatray Vishram Karale Vs. State of Maharashtra and others” Office Notes, Office Court's or Judge's orders Memoranda of Coram or directions and Registrar's orders. appearances, Court's Orders.

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Mr. P.R. Katneshwarkar , Advocate for the petitioner Mr. V.B. Deshmukh holding for Mr. M.B. Kolpe Advocate for respondent Nos. 2 and 3

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Mr. K.G. Patil, AGP for respondent No.1.

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CORAM :- B.R. GAVAI & A.A. SAYED, JJ. DATE :- 29TH SEPTEMBER, 2010.

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1] By way of present petition, the petitioner seeks a direction to the respondent No.1 to grant approval to the services of the petitioner for the period 20^th February, 2007 to 30^th November, 2009

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2] The petitioner, whose earlier date of birth is recorded as 9^th February, 1949 came to be appointed as Lecturer with the respondent Nos. 2 and 3. It appears that the petitioner, noticing that his date of birth, which according to him was incorrectly recorded as 9^th February, 1949 and it ought to have been recorded as 7^th November, 1951, submitted an application to the respondent authorities to change it. Since the same was not changed, the petitioner filed a suit in the court of civil Judge Senior Division, Osmanabad. The said suit came to be partly decreed.

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3] It further appears that the petitioner was made to retire on superannuation as per the date of birth recorded earlier.

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FARAD CONTINUATION SHEET NO.

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It appears that in view of the interim order passed in the said suit, dated 3^rd March, 2007, the defendants were restrained from treating the date of birth of the petitioner as 9^th February, 1949. Subsequently, the said suit came to be partly decreed thereby only granting a declaration that the date of birth of the petitioner was 7^th November, 1951.

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4] It appears that in the intervening period though the petitioner, as per his earlier date of birth was retired on superannuation, was directed to continue on the basis of an interlocutory order passed in the civil suit.

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5] A proposal was also sent by the respondent Management to the Education Officer for grant of approval on 4^th September, 2009. Vide order dated Nil which is annexed as “EXHIBIT L” to the petition, the proposal was not considered on the ground that at that moment, one Mr. N.B. Nagre had fled an appeal challenging the termination. The said Mr. Nagre was appointed in place of the petitioner.

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6] Shri Katneshwarkar, learned counsel for the petitioner submits that the entry in the Birth and Death Register is a conclusive proof in so far as the factum regarding date of birth or death of a particular person is concerned. It is submitted that

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FARAD CONTINUATION SHEET NO.

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since the date of birth of the petitioner was recorded as 7^th February, 1951, the authorities were bound to change the same and grant approval to the services of the petitioner between 20^th February, 2007 and 30^th November, 2009. He further submits that since the petitioner has actually worked during the aforesaid period, the petitioner is entitled for the salary from the respondents.

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7] By now it is a settled law that an application for change of entry with respect to date of birth is required to be made within a period, as prescribed in the relevant service rules, or when it is not so provided, then it should be made within a reasonable period, which period has been held to be of 5 years, by various judicial pronouncements of the Apex Court.

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8] The petitioner entered in service on 5^th August, 1985. The first application for change in date of birth was made in 2004 i.e. alomst after a period of 19 years from the date of entry into service. As such, in view of the various judgments of the Apex Court, the said application itself was not tenable.

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9] The contention of the petitioner that since the petitioner has actually worked, salary should have been paid to him is concerned, the respondent management had permitted the

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FARAD CONTINUATION SHEET NO.

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petitioner to join as per the interlocutory orders passed by the learned trial court. No approval was granted by the respondent No.1. In that view of the matter, there cannot be any liability fastened upon the respondent No.1 for payment of salary of the petitioner for the period for which he has worked, after he was to be superannuated on the basis of the date of birth recorded in the service record.

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10] In so far as respondent Nos. 2 and 3 are concerned, they have obeyed the orders passed by the learned Civil Judge. It is a settled principle of law that acts of court shall prejudice none. In that view of the matter, since the respondent Nos. 2 and 3 had permitted the petitioner to continue in service only on the basis of the interlocutory orders passed by the learned Civil Judge, which was a relief not granted at the final stage, the relief in that regard also cannot be granted against the respondent Nos. 2 and 3.

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11] No case is made out for interference in the extraordinary jurisdiction of this court under Article 226 of the Constitution of India. The writ petition is therefore rejected.

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grt/-

Dattatray Vishram Karale v. the State of Mah and Ors.

Case brief

What is this about?

What the court decided

Dattatray Vishram Karale v. the State of Mah and Ors.

Case brief

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