# Shridhar Dwivedi v. State of U.P. and others

- **Citation:** (2005) 2 ILRA 569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-05
- **Case number:** Civil Misc. Writ Petition No. 52752 of 2000
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shridhar-dwivedi-v-state-of-u-p-and-others-40489
- **Pages:** 3

## Headnote

Constitution of India, Article 226-Date of
Birth-Petitioner's date of birth recorded
in
service
record
as
26.2.1939subsequently corrected by the Executive
Engineer in pursuance of direction issued
by the writ court-Executive Engineer by
order dt. 2.9.98 informed the petitioner
about the age of Superannuation on
28.2.99-Superintending Engineer after
the retirement held the correction made
by executive engineer without any basishence
corrected
as
26.2.1939-heldwithout Notice-the change in date of
birth cannot be made-direction issued
for entire consequential benifits.

Held: Para 7

Having considered the submissions made
and also the facts and circumstances of
the
case
in
my
opinion
once
the
petitioner has retired from service on
28.02.1999 treating his date of birth to
be 26.02.1941 and the order correcting
the date of birth having admittedly been
passed by the Executive Engineer after
enquiry and upon consideration of the
material placed before the Executive
Engineer, there is no justification for
again changing the date of birth after
retirement of the petitioner and that to
without notice to the petitioner. The
order dated 17.02.2001 has been passed
after retirement of the petitioner and
without
notice
to
the
petitioner,
therefore, cannot be sustained and is
liable to be set aside.

## Text

2 All] Shridhar Dwivedi V. State of U.P. and others

 569
24. The connected Writ Petition No.
2740 of 2001 filed by Dheer Singh who
was a Schedule Tribe candidate and had
been selected in the first selection in 1999
but in the second selection, the reserved
post itself has been converted into
schedule caste post also deserves to be
allowed and respondents are directed to
declare the result for one schedule tribe
post pursuant to the interview held in
September 2000 and if the petitioner is
found successful he shall also be entitled
to
be
appointed
against
the
same
selection.

There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 52752 of 2000

Ram Das Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri N.K. Saxena
Sri Deepak Saxena

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Date of
Birth-Petitioner's date of birth recorded
in
service
record
as
26.2.1939subsequently corrected by the Executive
Engineer in pursuance of direction issued
by the writ court-Executive Engineer by
order dt. 2.9.98 informed the petitioner
about the age of Superannuation on
28.2.99-Superintending Engineer after
the retirement held the correction made
by executive engineer without any basishence
corrected
as
26.2.1939-heldwithout Notice-the change in date of
birth cannot be made-direction issued
for entire consequential benifits.

Held: Para 7

Having considered the submissions made
and also the facts and circumstances of
the
case
in
my
opinion
once
the
petitioner has retired from service on
28.02.1999 treating his date of birth to
be 26.02.1941 and the order correcting
the date of birth having admittedly been
passed by the Executive Engineer after
enquiry and upon consideration of the
material placed before the Executive
Engineer, there is no justification for
again changing the date of birth after
retirement of the petitioner and that to
without notice to the petitioner. The
order dated 17.02.2001 has been passed
after retirement of the petitioner and
without
notice
to
the
petitioner,
therefore, cannot be sustained and is
liable to be set aside.

(Delivered by Hon'ble Vikram Nath, J.)

1. This petition has been filed
seeking direction to the respondents to
pay pension, gratuity, GPF Transfer
allowance already sanctioned and other
post retiral benefits due to the petitioner.

Heard learned counsel for the parties.

2. The petitioner was working as
Seench Paryavekshak in the irrigation
department. According to him his date of
birth is 26.02.1941 and, therefore, under
the Service Rules he was to retire on
28.02.1999 being the last date of the
month in which he completed the age of
superannuation. This date of birth had not
been correctly recorded in the service
records accordingly the petitioner made a
representation to the respondent no. 4 for
correction of the date of birth. However as
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
this representation was not being decided
by the concerned authority (respondent
no. 4) petitioner filed writ petition before
this Court being Civil Misc. Writ Petition
No.40390 of 1996, which was disposed of
by this Court vide order dated 17.12.1996
with a direction to the Executive Engineer
(respondent no. 4) Fatehpur Division,
Lower Ganga Canal, Fatehpur, to look
into the matter and disposed of the
petitioner representation by a speaking
order to be passed and communicated to
the petitioner within one month from the
date of production of certified copy of the
order.

3. It appears that the date of birth
was corrected thereafter. It has been
stated in paragraph 2 to the writ petition
that subsequently respondents issued
notice dated 02.09.1998 informing the
petitioner that he would be completing
age of superannuation on 28.02.1999. It is
thus clear that the respondents held that
date of birth of the petitioner is of the year
1941 and not 1939. The petitioner
accordingly retired on 28.02.1999 and has
been thereafter pursuing his claim for the
post retiral benefit, The benefit legally
due having not been paid the petitioner
has filed the present writ petition.

4. Counter affidavit has been filed in
which it is alleged in paragraph 13 that
the Superintending Engineer vide order
dated 17.02.2001 (Annexure 5 to the
counter affidavit) held that correction of
the date of birth of the petitioner made by
the Executive Engineer was not based on
clear reasons and, therefore, the post
retiral benefits of the petitioner may be
calculated treating his date of birth to be
as 26.02.1939

5. The contention of the petitioner is
that this order of the Superintending
Engineer
is
without
notice
to
the
petitioner and has been passed subsequent
to the filing of this petition and secondly
he has not been paid any dues even if his
date of birth is taken to be of 1939. It is
also contended that after retirement of the
petitioner the date of birth cannot be
changed.

6. Learned Standing Counsel has
sought to argue that the date of birth of
the petitioner could not have been
corrected by the Executive Engineer and
that in view of the order passed by the
Superintending Engineer the petitioner
would be entitled to post retiral benefits
treating
his
date
of
retirement
as
28.02.1997 and not 28.02.1999. However,
there is no explanation as to why the
undisputed post retiral benefit treating the
date of retirement as 28.02.1997 have not
been paid to the petitioner.

7.

Having
considered
the
submissions made and also the facts and
circumstances of the case in my opinion
once the petitioner has retired from
service on 28.02.1999 treating his date of
birth to be 26.02.1941 and the order
correcting the date of birth having
admittedly been passed by the Executive
Engineer
after
enquiry
and
upon
consideration of the material placed
before the Executive Engineer, there is no
justification for again changing the date of
birth after retirement of the petitioner and
that to without notice to the petitioner.
The order dated 17.02.2001 has been
passed after retirement of the petitioner
and without notice to the petitioner,
therefore, cannot be sustained and is
liable to be set aside.
2 All] Ram Das Singh V. State of U.P. and others

 571
8. The petitioner is entitled to all the
post retiral benefits treating his date of
birth as 26.02.1941 and his date of
superannuation
as
28.02.1999
as
mentioned in the notice issued by the
office of the Assistant Engineer, Fatehpur,
dated 02.09.1998. The entire exercise for
determination of the post retiral benefits
due to the petitioner shall be made within
a period of three months from the date of
production of certified copy of this order
and payment due upon such determination
shall be made within further one month
from the date of determination. The
petitioner would also be entitled to 8%
simple interest on the amount due for the
delayed period from the date it became
due till date of actual payment as he had
been denied post retiral benefits at least
treating his date of birth to be of 1939 for
no reason and without any fault.

The writ petition is accordingly
allowed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: THE ALLAHABAD: 9.5.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

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