SCA/5537/1982 of RAFIYUDDIN FAIJUDDIN SHAIKH Vs STATE OF GUJARAT on 12 December 1995

1. Whether Reporters of Local papers may beallowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether their Lordships wish to see thefair copy of the judgment?

4. Whether this case involves a substantialquestion of law as to the interpretationof the Constitution of India,1950 or anyorder made thereunder?

5. Whether it is to be circulated to theCivil Judge?

Mr. G.G.Mali for the petitioner

Mr. D.A.Bambania for the respondents.

����Coram: S.K.KESHOTE,J

�����(12-12-1995)

The petitioner was appointed as police constable inthe armed police force on 18-12-1944. At the time ofrecruitment, as stated by the petitioner, the recruitingofficer did not ask the petitioner to produce certificate ofeducational qualification as well as date of birth. Thepetitioner was later on promoted as Drill Master Subedar,P.S.I. and in the year 1975 he was promoted as PoliceInspector. But the petitioner had foregone the promotion tothe post of Police Inspector due to his personal reasons.

2. The date of birth of the petitioner, as per school leaving certificate, is 20th October, 1928. In the year1977 for the first time the petitioner had come to know thathis date of birth was wrongly entered in the service book as18-2-1925. Considering the date of birth of the petitioneras 18-2-1925 the respondents sought to superannuate thepetitioner on 18-3-1983. The petitioner contended that asper the correct date of birth he has to continue in servicetill 19th October, 1986. The petitioner has come with thecase that the representation made by him on 1-2-1977 forcorrecting his date of birth was negatived by the Departmentwithout hearing him and without giving any reasons videorder dated 3rd May,1979. This was done by the InspectorGeneral of Police, Gujarat. The petitioner then approachedrespondent No.1 State of Gujarat, for correction of his dateof birth in the service records, but his request has notbeen considered. Hence he filed the present writ petitionbefore this Court.

3. In reply to the writ petition, the facts which havebeen narrated by the petitioner have not been controverted.The date of birth which is mentioned in the school leavingcertificate of the petitioner has also not been disputed.According to the respondents, as per the statement made bythe petitioner at the time of recruitment his date of birthhas been calculated.

4. The writ petition was admitted by this Court on14-2-1983 and interim relief in terms of.R

granted. Para 15(d) of the petition reads as follows:

"15(d). Restrain the respondents from

relieving the petitioner from service on 17-2-1983 with a direction to the respondents to continue the petitioner in service till 19-10-1986, pending admission, hearing and final disposal of this petition."

before the petitioner could have been retired from serviceon 17-2-1983. It is not in dispute between the parties thatas per the interim relief the petitioner was ordered to becontinued by the Department till 19th October,1986 andthereafter he has retired from service.

5. In view of the fact that the petitioner has alreadyretired on 18-10-1986 and he has been given all the benefitsaccordingly, as well as he has produced strong evidence insupport of his claim of date of birth as 20th October, 1928,and the date of birth in the service record has beenrecorded on the basis of the oral statement without anydocumentary evidence, this writ petition has to be accepted.There is yet another ground which weighs in favour of thepetitioner. This Court has protected the petitioner on14-2-1983 by granting interim relief which had the effect ofgranting the final relief. Now at this stage, when thepetitioner has retired about nine years back, it will causehardship as well as prejudice to the petitioner in case thepetition is decided otherwise. In view of these facts,nothing in substance remains to be decided except to confirmthe interim relief which has been granted by this Court andwhich has been acted upon by the respondents and the fruitsof which have been taken by the petitioner.

6. In the result this writ petition is allowed. Rulemade absolute accordingly, with no order as to costs.

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