CWPOA/11893/2008 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP(T) No.: 11893 of 2008.

Decided on: 29.12.2010. __________________________________________________________

Thakur Sain.

… Petitioner.

Versus

H. P. State Electricity Board and others.

… Respondents.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, J.

Whether approved for reporting?1 No.

For the Petitioner : Mr. Vijay Bhatia, Advocate.

For the Respondents : Ms. Anjula Khajuria, Advocate.

Rajiv Sharma, J. (Oral):

Petitioner was engaged as Beldar in the year 1989. He was made work-charged helper on 21.9.2001 with effect from 21.7.1999. He filed original application No.1752 of 2000 before the learned Himachal Pradesh Administrative Tribunal seeking a direction to the respondent-Board to change his date of birth from 31.12.1944 to 10.5.1961. The learned Himachal Pradesh Administrative Tribunal directed the original application to be treated as representation to the Secretary of the respondent-Board. The order was passed on 19th May, 2004.

The Secretary of the respondent-Board rejected the representation on 13.7.2004.

2. Mr. Vijay Bhatia, learned counsel for the petitioner has strenuously argued that the date of birth of his client was 10.5.1961 and not 31.12.1944. Ms. Anjula Khajuria, learned counsel for the 1 Whether the reporters of Local Papers may be allowed to see the judgment? No.

respondents has argued that the application of the petitioner to seek change in the date of birth was belated and the same has been rightly rejected by the Secretary of respondent-Board as well.

3. I have heard the learned counsel for the parties and gone through the pleadings carefully.

4. Petitioner’s date of birth was recorded when he was engaged as Beldar as 31.12.1944. He has not taken any steps to get this date rectified. He was regularised on 21.9.2001 with effect from 21.7.1999. He had filed the original application in 2000 bearing No.1752 of 2000. The same, as noticed above, was directed to be treated as representation to the Secretary of the respondent-Board. He has rejected the same on 13.7.2004. The respondent-Board got a Medical Board constituted on 31.12.2002. The petitioner appeared before the medical Board on February 11, 2004. Strangely enough, the Medical Board had opined that the age of the petitioner was about 25 years, but by appearance, he looked to be around 50 years of age. This kind of medical evidence has rightly been rejected by the respondent-Board. The petitioner has placed on record Annexure A-1 to substantiate that his date of birth was 10.5.1961. This certificate is dated 22.4.2005. In case the petitioner was in possession of age certificate, he should have supplied the same at the time when he was engaged as daily waged Beldar in 1989 or by latest in 2001 when he was made work-charged. He has not placed this document before the Secretary when the representation was decided on 13.7.2004. It is also not disputed that the record of the petitioner’s Panchayat was destroyed during flash floods in 1997. He has not placed any tangible evidence on record to establish his date of birth. There is no merit in the contention of Mr. Vijay Bhatia, learned counsel for the petitioner that since the date of birth of petitioner father was also recorded as 26.11.1944 in the records of the respondent- Board, his date of birth could not be in the same year, i.e. 1944. Ms. Anjula Khajuria, learned counsel for the respondents submits that the date of birth of petitioner father was recorded on the basis of affidavit as he had also not produced any date of birth certificate or school leaving certificate.

5. The petitioner has failed to prove that his date of birth was wrongly recorded by the respondent-Board. However, the fact of the matter is that the petitioner was engaged on daily wage basis in the year 1989 and he had been regularised after ten years continuous/regular service in 1999. He has worked for 5 years 5 months and 13 days on regular basis. The half of the period the petitioner has worked with the respondent-Board on daily wage basis has to be counted for the purpose of pensionary benefits. In other words, the petitioner has worked for more than 10 years 5 months and 13 days by counting half of the daily wage service followed by regular service. Therefore, he is entitled to pension in view of the law laid down by this Court in State of H.P. and others versus Sarab Dayal, CWP No.180 of 2001, decided on 19.7.2007.

6. Accordingly, in view of the observations made hereinabove, the petition is partly allowed. The respondents are directed to consider the case of the petitioner for pension in view of above discussion and the law laid down by this Court in the judgment referred to above. The pending application(s), if any, also stands disposed of. No costs.

(Rajiv Sharma),

Judge. December 29, 2010. (sck).