JUDGMENT
B.J. Shethna, J.
1. This petition was originally filed by the petitioner R.C. Pathan challenging the order at Annexure “D” dated 11-11-1980 passed by the D.S.P. Mehsana and praying that the respondents may be directed to treat the birth date of the petitioner as 1-8-1925 instead of 18-4-1923 and to allow him to continue in service on that basis till 1-8-83 on attaining the age of superannuation, i.e., 58 years.
During the pendency and final disposal of the petition. Inspector General of Police passed a speaking order dated 28-4-1981 (at oage 25) and refused to correct the birth date of the petitioner and ordered that he is permitted to retire with effect from 30-4-1981. On 25-11-1981 this Court admitted the petition and granted the interim relief. Pursuant to that order, the petitioner continued in service and retired in August, 1983 on reaching the age of superannuation, i.e., 58 years.
2. During the pendency of this petition, the petitioner died and, therefore, his heirs and legal representatives have come on record of this petition.
3. Mr. M.R. Anand, learned Counsel appearing for the petitioner, without going info the merits of the case, has relied upon the judgment of this Court in Bachu Laxman v. Union of India and Ors. 1984 (2) 25(2) GLR 1336 and submitted that the original petitioner should now be considered as retired at the age of 58 years in August, 1983 and not in 1981 as directed by the I.G.P. in his order in view of the fact that he continued to remain in service as per the interim order of this Court, In Bachu Laxman’s case (supra) this Court has observed as under:
Now, that he is going out, the only concession which Mr. Bhatt wants which even in law would be legitimate to him is that he has continued to serve under the interim relief granted by the Court, the benefit that accrued to him on the basis of last pay drawn pension, various retirement benefits should not be withdrawn and he should not be refixed at the starting of the salary scale. Whether I like it or not, ‘that is the law. Rules at present governing retirement benefits especially pension and gratuity refer to the average of 10 months’ last salary. It is immaterial that he continued to enjoy the benefit under interim relief granted by the Court and for that he has been in receipt of this benefit. Therefore, the Railway Administration would not be entitled to withdraw the same. In other-words, he would be entitled to pension and other retirement benefit’s on the pay that he would draw at present on 30-3-15)77 when he would walk out as superannuated. With these observations the petition stands disposed of with no orders as to costs.
4. However, Mr. Rathod, learned A.G.P. appearing for the respondents, vehemently submitted that this Court should not interfere with the impugned order of the I.G.P., in this petition as the petitioner has come at a very late stage and also submitted that on merits also the petitioner is not entitled to any relief. In support of his submission, he relied upon the judgment of the Supreme Court in The Secretary & Commissioner, Home Deptt. and Ors. v. R. Kirubakaran . It is true that the Supreme Court has held in that case that if the dispute is raised on the eve of superannuation, the Court or the Tribunal must be slow in granting interim relief for continuation in service unless prima facie evidence of unimpeachable character is produced. But the Supreme Court has never said that merely because a person has come at the stage of even of his superannuation, the Court should not at all grant relief, In this case, way back in 1981, the Court granted interim relief after hearing the other side and the petitioner continued in service till he attained the age of 58 years.
5. This Court granted interim relief in favour of the petitioner in view of the Impeachable evidence in form of school leaving certificate a copy of which was produced by the petitioner.
6. Then Mr. Rathod submitted that the heirs and legal representatives of the petitioner cannot get the benefit under the order of the Court and this Court cannot grain final relief in their favour, In support of his submission he relied upon the judgment of the Supreme Court in H.M.T. Ltd. v. Labour Court Ernakulam and Ors. . I fail to understand how this judgment can have any application to the facts of the present case. In that case, it was held that no party should suffer on account of the delay in the decision by the Court. There is no delay in the present Case. The Court, after hearing the other side admitted the petition and granted interim relief in favour of the petitioner and thereby the petitioner continued to remain in service and completed the age of 58 years. In fact, that interim order, which was in the nature of a final order, was not even challenged by the respondents by way of appeal before this Court, That means that indirectly they have accepted the order of this Court and there should not be any difficulty in making that interim order as final. He also relied upon the judgment of this Court in Physical Research Laboratory v. Dr. Mukul Sinha 1989(1) GLH 235, wherein the Division Bench of this Court held that “the act of Court will prejudice no man” and the party should not be made to suffer because of the delay on the part of the Court. However, there is a foot-note below Head note (F) of the judgment wherein it is stated that “the Hon’ble Supreme Court rejected the Special Leave Petition of Dr. Sinha against this judgment. However, order as regards returning of the amounts paid, was modified as P.R.L. did not press that the amount ought to be returned” Therefore, this judgment cannot be cited as a precedent. ‘That apart, I fail to understand as to how it has got any relevance to the facts of the present case.
7. This objection raised by Mr. Rathod compels this Court to go into the merits of the case; It is clear from the documents on the record of this case, including the school leaving certificate, that the correct birth date of the original petitioner was 1-8-1925 and not 18-4-1923 which was given by the original petitioner at the time of joining his services as alleged by the respondents. From their own reply affidavit, one important fact emerges that the Birth and Death Register of 1923 which was examined by the authorities showed that the sister of the original petitioner R.C. Pathan was born on 5-2-1923 and therefore, it can never happen that the petitioner’s birth date would be 18-4-1923 as claimed by the respondents. In fact, the respondents tried to inquire about the Birth and Death Registers of 1924 and 1925 but they were destroyed. In absence of that the most authenticated document was the school leaving certificate which was totally ignored by the I.G.P. There was no reason for the I.G.P. not to rely upon that document. It ought to have been accepted by him. And accordingly he ought to have corrected the birth date of the petitioner.
8. In view of the above discussion, this petition is allowed. The impugned order at Annexure “D” as well as the subsequent order passed by the I.G.P. on 28-4-1981 (at page 25 of the petition) are quashed and set aside.
9. It is declared that the correct birth date of the original petitioner Shri R.C. Pathan is 1-8-1925 and not 18-4-1923 and accordingly the respondents are directed to work out all the benefits and grant the same to the present petitioners, who are heirs’ and legal representatives of the deceased original petitioner R.C. Pathany. The pensionary and other retiremental benefits of the original petitioner will also be given to them as if he (R.C. Pathan) had retired from the service in August, 19133. Rule is made absolute accordingly with costs.