Allowed

Rathinammal, v. the District Collector

Madras HC20 Apr 2017WP/26037/2010

Case brief

AI extract

What is this about?

The High Court set aside a superannuation order passed without notice or enquiry. It quashed the premature retirement and directed the authorities to verify service records, determine the correct date of birth, fix the superannuation date, and pay dues within three months.

What did the court decide?

Quashing of superannuation order; direction to verify records, determine date of birth, fix superannuation date, and pay dues within three months.

Rathinammal, Vs the District Collector — Pension and Retirement Benefits | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 20.04.2017

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CORAM

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THE HONOURABLE MR.JUSTICE R.SURESH KUMAR

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W.P.No.26037 of 2010 and M.P.Nos.1 and 2 of 2010

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Rathinammal ... Petitioner
vs
1. The District Collector,
Vellore District,
Vellore.
2. The Project Officer,
Integrated Child Development
Scheme (ICDS),
No.11, Ponniamman Koil Street,
Sainathapuram,
Vellore 632 001.
3. The Commissioner,
Kandili Panchayat Union,
Kandili,
Vellore District.
4. Taluk Nutrition and Children Welfare Office,
Kandili,
Vellore District. ... Respondents

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Prayer:- Writ Petition filed Under Article 226 of the Constitution of India to pass an order, direction or writ more in the nature of a Writ of Certiorarified Mandamus calling for the records of the 2^nd respondent order in Se.Mu.Mu.Mu.No.2332/Aa/04 dated 29.12.2004 and quash the same consequently directing the respondent to reinstate the petitioner as Assistant with continuity of service, full backwages and other monetary benefits and grant appropriate compensation.

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For Petitioner : Mr.J.Saravana Vel For R1 and R3 : Mr.A.Zakkir Hussain (GA) For R2 : Mr.R.A.S.Senthil Vel

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https://hcservices.ecourts.gov.in/hcservices/

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O R D E R

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The petitioner has approached this court in this writ petition seeking for a prayer for a Writ of Certiorarified of Mandamus calling for the records of the 2^nd respondent order in Se.Mu.Mu.Mu.No.2332/Aa/04 dated 29.12.2004, quash the same and consequently directing the respondent to reinstate the petitioner as Assistant with continuity of service, full backwages and other monetary benefits and grant appropriate compensation.

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The case of the petitioner, as has been culled out from the averments filed in support of the writ petition, is that she was appointed as Helper in Midday Meal Scheme, and the post for which she was appointed is called Anganwadi Helper, by the proceedings of the 3^rd respondent dated 29.06.1982. Pursuant to the said appointment the petitioner joined service as Helper at Sevathurpudur, Anganwadi Centre in July 1982. The petitioner had been continuously working as such till 2004. Where as in the year 2004, the 2^nd respondent has passed an order dated 29.12.2004, whereby the petitioner had been abruptly superannuated by the said proceedings of the 2^nd respondent whereby the 2^nd respondent has stated that as on 05.06.1991 the petitioner's age was 44 years and therefore, if that age is taken into account, the petitioner would be completing 58 years on 31.12.2004 and therefore, she has been permitted to retire by 31.12.2004.

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According to the petitioner, before passing the said impugned order, no notice was given to the petitioner and it is also the case of the petitioner that under what basis the 2^nd respondent has come to the conclusion that the petitioner's age as on 05.06.1991 was 44 years, is not known.

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The further case of the petitioner is that the petitioner in fact studied upto 8^th Standard at Concordia Middle School, Ambur, North Arcot District (then North Arcot District) and from the said School the petitioner obtained a Transfer Certificate on 28.06.1982 and according to the said certificate, the petitioner's Date of Birth was 15.06.1953 and in fact according to the petitioner, the said certificate also had been produced before the respondents for the purpose of maintaining the service record. Therefore, the petitioner's case is that since the Date of Birth is 15.06.1953, she would be superannuating only on 14.06.2011 and on that basis, the petitioner shall be liable to be retired only on 30.06.2011. However, by virtue of the impugned order abruptly, the 2^nd respondent has completed the services of the petitioner as early as on 31.12.2004, because of which the petitioner's service for about 7 years has been taken away abruptly without any plausible reason and therefore, challenging the said order of the 2^nd respondent dated

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https://hcservices.ecourts.gov.in/hcservices/

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29.12.2004, the petitioner has approached this court with the present writ petition with the aforesaid prayer.

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Though number of opportunities were given by this court, on behalf of the respondents no counter affidavit has been filed. When this writ petition came up for hearing on 23.03.2017, it was specifically directed that the respondents shall file counter to the effect to state that as to on what basis the 2^nd respondent has concluded that the petitioner's age was 44 as on 05.06.1991 and thereby the petitioner has been compulsorily superannuated on 31.12.2004. However, no counter has been filed and no record to show that the reasoning of the second respondent's conclusion that the petitioner's age was 44 as on 05.06.1991 have been filed before this Court.

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Mr.J.Saravana Vel, learned counsel appearing for the petitioner would submit that the petitioner had already produced the Transfer Certificate issued by the School, where she studied up to 8^th standard, wherein the Date of Birth of the petitioner has been clearly mentioned as 15.06.1953. The Date of Birth of the petitioner being 15.06.1953, she would be superannuating only on 14.06.2011 and the services can be extended up to the end of the superannuating month, therefore the petitioner could be superannuated only on 30.06.2011.

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The learned counsel for the petitioner would also submit that subsequently, the superannuation age of the Anganwadi Helper has been enhanced from 58 to 60 and if that is taken into account the petitioner would be superannuating only in the year 2013. He would also submit that even assuming that as on 05.06.1991 the petitioner's age was 44 years, even based on that erroneous conclusion on the part of the respondents, the petitioner would be superannuating only in the year 2005. Therefore under what basis, the petitioner was superannuated compulsorily, through the impugned order, on 31.12.2004 is not known. In this regard, the learned counsel would submit that these facts would clearly establish that the 2^nd respondent, without any basis or under total non application of mind, has passed the impugned order compulsorily superannuating the petitioner, atleast 7 years before her actual superannuation age.

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The learned counsel for the petitioner would also submit that before passing this order, no notice was given to the petitioner and no enquiry was conducted. Since the impugned order will have a very adverse effect on the service conditions of the petitioner, the petitioner should have been put on notice and the documents, in support of the claim of the petitioner that her Date of Birth was 15.06.1953 should have been called for and without resorting to such a method which is a fundamental requirement, the 2^nd respondent passed the impugned

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https://hcservices.ecourts.gov.in/hcservices/

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order. Therefore, the learned counsel for the petitioner would submit that the impugned order is liable to be set aside.

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Per contra Mr.Zakkir Hussain, the learned Government Advocate would submit that though the respondents have not filed a counter affidavit, the documents which have been filed by the petitioner along with the writ petition would reveal that, apart from the said Transfer Certificate dated 28.06.1982, the petitioner has not produced any other acceptable documents regarding the actual Date of Birth of the petitioner. Therefore, merely on the basis of the Transfer Certificate where the petitioner's Date of Birth has been mentioned as 15.06.1953, the petitioner cannot make a definite claim that she would be entitled to be in service till 14.06.2011.

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The learned Government Advocate would also submit that normally in the cases of this nature where there is no definite documents to substantiate the claim of the Government Servant regarding the Date of Birth, the anatomy of the Government Servant concerned would be referred for Medical Examination and only based on Medical Certificate, based on the physical nature of the person concerned, the concerned Medical Board would decide the actual age of the person concerned, probably on that basis, the decision could have been taken. The learned Government Advocate would also submit that at any rate since the petitioner has given so many representations subsequent to the impugned order to the respondents herein and in response to those representations, some action seems to have been initiated by the very 2^nd respondent itself as well as the first respondent, that can be further pursuaded to reach its logical conclusion and in this regard, the learned Government Advocate would submit that if the petitioner has got any grievance over the decision taken by the 2^nd respondent regarding her age as well as the superannuation, it is open to the petitioner to submit the relevant available documents with the petitioner to substantiate her claim and if such a claim is made with documents, certainly, the respondents would be in a position to take a decision thereon. Therefore, the learned Government Advocate would submit that the present impugned order need not be interfered with unless and until a decision is taken by the respondents especially, the 2^nd respondent, based on the documents to be filed by the petitioner.

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This court has considered the said rival submissions made by the learned counsel appearing for both sides.

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It is a definite case of the petitioner that her Date of Birth is 15.06.1953. In order to substantiate the same, the petitioner has already produced the Transfer Certificate issued by the School where the petitioner studied up to 8^th Standard. As has been rightly pointed out by the learned counsel appearing

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https://hcservices.ecourts.gov.in/hcservices/

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for the petitioner, before passing the impugned order dated 29.06.1982, no notice, admittedly, has been served on the petitioner. It is also not known on what basis, the 2^nd respondent has concluded that the age of the petitioner as on 05.06.1991 was 44 years. If at all the 2^nd respondent or any other respondents working under him including the 3^rd and 4^th respondents have got any adverse materials to disprove the claim of the petitioner that her Date of Birth was 15.06.1953, based on such materials and documents, an opportunity must have been given to the petitioner and after giving such an opportunity by way of show cause notice and after getting explanation from the petitioner alone, any drastic action like the one, now has been taken through the impugned order, should have been taken.

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However, here in the case on hand, abruptly, the impugned order was passed on 29.12.2004, where some conclusion has been reached, by which, the service conditions of the petitioner have been adversely affected. Knowing fully well that the petitioner's service conditions would get affected, which will have a civil consequence, the 2^nd respondent without giving an opportunity of being heard to the petitioner, has passed the impugned order, therefore on this ground alone, this Court feels, that the impugned order is liable to be interfered with.

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In fact, after passing of the impugned order, the petitioner has given a number of representations to the respondents especially the 1^st and 2^nd respondents on various dates in the year 2005, 2008 and 2009. In response to one of such representation made by the petitioner, the 2^nd respondent by proceedings dated 30.06.2008 has directed the 4^th respondent, to send details as to, on what basis, the petitioner has been superannuated compulsorily by 31.12.2004. The said proceedings of the 2^nd respondent dated 30.06.2008 can be usefully referred to hereunder for better appreciation of issue:

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“fj;jpyp tl;lhuk;. g[fhh; fhydp vd;w m';fd;tho ikaj;jpy; cjtpahsuhf gzpahw;wpa

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jpUkjp/J/uj;jpdk;khs; vd;gth; (11/07/1982 Kjy; ntiy bra;J te;jjhft[k; 31/12/04 md;W ntiyia tpl;L epWj;jp tpl;lhh;fs; vd bjhptpj;J ,th; gpwe;j ehs; 15/06/1953) Xa;t

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[ bgw fhyk; cs;sjhft[k; bjhptpj;J tpz;zg;gk; bgwg;gl;Ls;sJ/

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vdnt g[fhh; fhydp m';fd;tho ikaj;jpy;. nkw;go egh; gzp g[hpe;jhuh> gzpg;gjpntl;od;go ,tuJ gpwe;j ehs; vd;d vd;gij bjhpag;gLj;JkhW nfl;Lf; bfhs;sg;gLfpwJ/ nkYk; vjd; mog;gilapy; 31/12/2004 md;W gzpapypUe;J epWj;jg;gl;lJ vd;gjw;fhd tptuj;jpid cld; ,t;tYtyfj;jpw;F mDg;gp itf;FkhW jpUg;gj;J}h; FHe;ij tsh;r;rp jpl;l mYtyh; nfl;Lf; bfhs;sg;gLfpwhh;/”

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Like that in response to the representations given by the petitioner, the 1^st respondent, District Collector also has issued some letters to the 2^nd respondent on 26.09.2008 and to the 3^rd respondent on 06.01.2009 requiring them to look into the matter and take a decision thereon. Like that the 3^rd respondent by letter dated 21.01.2009 has asked the 4^th respondent to take appropriate action on the request of the petitioner.

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https://hcservices.ecourts.gov.in/hcservices/

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All these correspondences between the respondents herein combinedly would go to show that the respondents do not want to take the responsibility of passing such an impugned order, whereby the petitioner has been apparently superannuated before her actual date of superannuation. The respondents seem to have shifted burden and responsibility to others shoulders. It is unfortunate, that the 2^nd respondent, who passed the impugned order has also written a letter dated 30.06.2008, which has been extracted herein above to the 4^th respondent asking the 4^th respondent as on what basis, such a decision was taken to compulsorily superannuate the petitioner on 31.12.2004. This proceedings clearly shows that the Office of the 2^nd respondent, even without any basis or record, seems to have passed the impugned order, that is the reason why the very same second respondent's Office has written a letter to the 4^th respondent asking him to say on what basis, such a decision has been arrived at. All these proceedings would go to show that something has gone wrong somewhere and at any rate, the service conditions of the petitioner has been adversely effected as she has been compulsorily superannuated atleast before 7 years of her services.

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Therefore for all these reasons set out above, this Court is of the considered view that the impugned order is liable to be quashed and accordingly, the same is hereby quashed.

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Since the petitioner has already superannuated, even according to her Date of Birth as claimed by her (15.06.1953) on 30.06.2011 and even if the enhanced superannuation age of 60 is applied, even then she would have superannuated by 2013.

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In these circumstances, in order to meet the ends of justice, this court feels that a direction can be given to the respondents especially the 2^nd respondent to verify the records, i.e, service records of the petitioner, of course after getting comments from the concerned officials, including the respondents 3 and 4 herein and in this regard, the petitioner also shall be given an opportunity by the 2^nd respondent to produce records/documents to substantiate her claim that her Date of Birth was only 15.06.1953 and based on which a decision has to be taken by the 2^nd respondent fixing the Date of Birth of the petitioner only on the basis of the acceptable records and accordingly, the superannuation date of the petitioner shall be decided. If, ultimately the 2^nd respondent accepts the claim of the petitioner that her Date of Birth is only 15.06.1953, then it is needless to mention that the 2^nd respondent shall pass suitable order permitting the petitioner to superannuate only on that basis either on completion of 58 years or 60 years as it has been enhanced and in that case the financial benefits on her remaining part of the service that is from 01.01.2005 till such

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https://hcservices.ecourts.gov.in/hcservices/

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date of re-fixed superannuation shall be paid to the petitioner, thereafter. All these exercise as has been indicated above shall be completed by the respondents, especially the 2^nd respondent, within a period of three months from the date of receipt of copy of this order.

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With these directions, the writ petition is allowed in the terms as indicated above. No costs. Consequently, the connected Miscellaneous Petition is closed.

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Sd/-

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Asst.Registrar (CS VIII)

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/true copy/
Sub Asst. Registrar
rna/kua
To
1. The District Collector,
Vellore District,
Vellore.

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The Project Officer,
Integrated Child Development
Scheme (ICDS),
No.11, Ponniamman Koil Street,
Sainathapuram,
Vellore 632 001.

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The Commissioner,
Kandili Panchayat Union,
Kandili,
Vellore District.

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Taluk Nutrition and Children Welfare Office,
Kandili,
Vellore District.

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+1cc to Government Pleader sr.24483 +1cc to M/s.J.Saravana Vel,Advocate sr.23920(21/6/2017)

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W.P.No.26037 of 2010 ss(13/6/2017)

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https://hcservices.ecourts.gov.in/hcservices/

Rathinammal, v. the District Collector

Case brief

What is this about?

What did the court decide?

Rathinammal, v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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Case details

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