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LPA/23/2004 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 23 of 2004
In
SPECIAL
CIVIL APPLICATION No. 99 of 2004
With
CIVIL
APPLICATION No. 15380 of 2007
In
LETTERS
PATENT APPEAL No. 23 of 2004
In
SPECIAL
CIVIL APPLICATION No. 99 of
2004
=========================================================
MANIBEN
ARJANBHAI THAKORE - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SD SUTHAR for MR NK MAJMUDAR
for
Appellant(s) : 1,
MS MINI NAIR, ASSTT. GOVERNMENT PLEADER for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 19/03/2010
ORAL
ORDER
(Per : HONOURABLE MS. JUSTICE
R.M.DOSHIT)
This
Appeal preferred under clause 15 of the Letters Patent arises from
the order dated 8th January 2004 made by the learned
single Judge in above Special Civil Application No.99/2004.
In
the month of October 1990, the appellant writ petitioner joined
the service in the office of the respondent No.3, Deputy Executive
Engineer, Harij as a daily wage labourer. At that time, in absence
of any documentary evidence, her age was ascertained by clinical
examination. The superintendent, Civil Hospital and Civil Surgeon,
Mahesana gave certificate dated 6th January 1989
certifying that Smt. Maniben Arjanbhai has been examined by me
at this hospital and she age looks…45 (forty five) years old
clinically . On the basis of the said certificate, her age for
the purpose of service record was entered as of January 1944.
Considering the date of birth entered in the service record, by order
dated 26th December 2003, she was ordered to retire on
31st January 2004 on reaching the age of superannuation
(60 years). Feeling aggrieved the appellant filed the above Special
Civil Application No.99/2004.
According
to the appellant, the correct date of her birth was 17th
July 1948. In support thereof, she produced a copy of the unsigned
medical certificate purportedly given on 4th October 1990
indicating her age as that of 41 years. The learned Single Judge did
not accept the case of the appellant and rejected the writ petition.
The learned Single Judge observed, …After 1989-90, the
petitioner has not made any attempt to get the birth date corrected
in the service record. It is, however, only when she is about to
retire, she approached the respondent No.3 vide her letter dated
25.09.2003 stating that the birth date recorded in the service
register is wrong and her correct age as per the identity card issued
by the Election Commission is 42 years on 01.01.1994. The entry
regarding the birth date in the service register cannot be changed on
the basis of such evidence . Therefore, the present Appeal.
Learned
advocate Mr. Suthar has appeared for the appellant. He has relied
upon the aforesaid documents, namely, the copy of the unsigned
medical certificate dated 4th October 1990, age of the
appellant recorded in the ration card and the election card, etc. At
the time of hearing, Mr. Suthar has produced copy of birth
certificate issued by Talati-cum-Mantri, Mandvi Group Gram Panchayat
indicating that the date of birth of the appellant is 17th
July 1948 and the place of her birth was village Mandvi.
We
agree with the learned Single Judge that the entries made in the
ration card or the election card cannot be treated as authentic
evidence of the date of birth of the appellant. The birth
certificate produced today also is not a reliable piece of evidence.
It should be noted that the entry was made in the birth register on
19th May 2007; after the date of this Letters Patent
Appeal and after the ad-interim order made pending the Appeal was
vacated on 13th March 2006. It is clearly an attempt on
the part of the appellant to gain an advantage by creating evidence.
Not only the appellant’s claim has no legs to stand on, the evidence
produced by her is engineered to support her claim.
We
are of the opinion that the Appeal is devoid of any merit. The
Appeal is dismissed with cost. Cost is quantified at Rs.2,000/-. We
further direct that the appellant will not be entitled to wages since
the date she reached the age of superannuation till the date she
continued to serve under the orders of the Court. The amount of
wages paid to the appellant during the aforesaid period and the
amount of cost of Rs.2,000/- will be deducted from the amount of her
terminal benefits, if any.
Copy
of the birth certificate produced by Mr. Suthar will be maintained on
the records of this Appeal.
In
view of the above order, Civil Application No.15380/2007 stands
disposed of.
(M.D.
Shah, J.) (Ms. R.M. Doshit, J.)
*menon
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