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Nasrat Khan v. D.M., & Others - WRIT - A No. 6907 of 1995  RD-AH 2412 (6 September 2005)
CIVIL MISC. WRIT PETITION NO. 6907 OF 1995
Nasarat Khan ................................................Petitioner
District Magistrate, Jalaun
and others .......................................................Respondents.
HON. SHISHIR KUMAR, J.
This writ petition has been filed for quashing the notice-dated 5.8.1994, Annexure-2 to the writ petition and order dated 28.2.1995 passed by respondent no.1, Annexure-18 to the writ petition. The petitioner was appointed as Tailoring Instructor in Sri Gandhi Audyogik College, Orai on 1.12.1957. Subsequently, the petitoner was promoted to the post of Principal since 15.9.1976. At the time of entrance of service, the petitoner had not passed High School Examination as such the School Leaving Certificate as well as the other documents were submitted at the time of appointment and the date of birth of the petitoner was recorded as 11.8.1936 and in the record which was maintained by the college, the date of birth of the petitoner was mentioned as 11.8.1936. In 1973 the petitoner appeared in the High School Exanimation and passed the High School Examination. By mistake the date of birth in the High School Certificate was mentioned as 11.8.1930. The controversy started due to different date of birth as mentioned in the High School Certificate and in the other documents, which were furnished by the petitioner before the concerned authorities. Due to the aforesaid fact, the petitioner was served with a notice on 5.8.1994 directing the petitioner to deposit the amount of salary and D.A. which, the petitoner had received for the period from 12.8.90 to 31.3.1994 otherwise it has been stated that the First Information Report will be lodged against the petitioner under Sections 420 and 109 I.P.C. and the petitioner was directed to hand over charge to one Assistant Teacher. When the petitoner came to know, he filed a writ petition before this Court as Writ Petition No.27670 of 1994 challenging the notice dated 5.8.1994. The writ petition was disposed of vide its order dated 24.8.1994 directing the respondents to decide the representation of the petitoner. On the basis of the directions issued by this Court, the petitioner filed a representation before respondent no.1 and submitted all the relevant documents stating therein that the date of birth of the petitoner is 11.8. 1936. It appears that by mistake in the High School Certificate the date of birth has wrongly been mentioned as 11.8.1930, therefore, that should be ignored and the date of birth which has been mentioned at the time of entrance in service, on the basis of the relevant documents, may be treated to be correct. The respondent no.1 vide its order dated 29.12.1994 has sought various documents relating to the appointment of the petitioner and the service record as well as certificate of Tailoring Diploma Examination. The petitioner submitted all the relevant documents before the relevant authority. The petitoner has also submitted the extract of register relating to year 1955-56 incorporating the names of the students who have received their diploma relating to Tailoring Class in which the name of the petitioner appeared and the roll number of the petitioner was 1328. The service record, which was submitted before the opposite party, also goes to show that the date of birth of the petitioner was recorded as 11.8.1936. For mentioning the wrong date of birth in the High School Certificate the petitioner submitted a representation-dated 13.5.1974 to the opposite party no.4 through proper channel for correction of date of birth. Respondent no.2 has appointed one Sri Krishna Avatar Sharma, Assistant Secretary for inquiring into the matter vide his order dated 15.9.1994. A copy of the same has been filed as Annexure-14 to the writ petition. It clearly goes to show that immediately after coming to know regarding the wrong date of birth mentioned in the High School Certificate the petitoner immediately in the year 1974 has submitted an application for correction of date of birth. Further contention of the petitioner is that assuming without admitting this fact that the date of birth of the petitioner mentioned in the High School Certificate as 11.8.1930 may be taken to be correct but as per relevant rule the same cannot be looked into for the purpose of correction of his date of birth relating to his service. Respondent no.1 by ignoring all the relevant record in support of the case of the petitioner has held that the date of birth of the petitoner is 11.8.1930. Respondents passed the said order on 28.2.1995. The same has been annexed as Annexure-18 to the writ petition. It is also relevant to mention here that the petitoner on the basis of the date of birth entered into the service record has been permitted to continue up to 1996 and now the petitioner has been retired. The Committee of Management has not initiated any action because the Committee of Management was of confirmed view that the date of birth of the petitoner, which is recorded as 11.8.1936, is correct.
A supplementary affidavit has also been filed on behalf of the petitioner and a resolution of the committee of Management has been annexed. In the said resolution dated 26.9.97 it has been stated that the date of birth of the petitoner, which is recorded, is 11.8.1936 and the petitioner has passed the High School in 1974 and in the said certificate the date of birth is recorded as 11.8.1930. An inquiry to this effect has been made and the Board of High School has informed that the date of birth of the petitioner is 11.8.1930 and on that basis the petitioner will retire on 11.8.1990. It has also been stated that from the record it is clear that the date of birth of the petitioner, which is recorded in the service record, is 11.8.1936. The petitoner has been permitted to continue up to 10.8.1996 treating the date of birth of the petitioner as 1936. But the salary from 1.4.1994 to 10.8.1996 the date when the petitoner has attained the age of superannuation treating the petitioner's date of birth is 1936 has not been paid.
A counter affidavit has been filed. In the counter affidavit it has been stated that the date of birth of the petitioner in the High School Certificate will be treated to be correct. The date of birth, which has been recorded in the service record is wrong and cannot be taken into consideration.
When the matter was heard on 16.8.2005, after hearing counsel for the parties, as the controversy was such, therefore, the Standing Counsel was directed to produce the original record relating to the service of the petitioner. When on 2.9.2005 the case was taken up, the Standing Counsel Sri Abhinav Upadhyay in compliance with the order dated 16.8.2005 has produced the original record relating to the service of the petitoner.
I have heard the learned counsel for the parties and perused the record. Annexure-10 to the writ petition which is the certificate issued for Diploma in tailoring clearly goes to show that the date of birth of the petitioner has been recorded as 11.8.1936. The respondents have also produced the original record of the employees, which are being maintained in the College. In the said service book, the date of birth of the petitioner has been recorded as 11.8.1936 and from time to time the thumb impressions of the petitioner and the verification have been made by the Management. The other various records which have been annexed with the writ petition also go to show that everywhere the date of birth of the petitioner has been mentioned as 11.8.1936. At the time of joining the service also, the date of birth mentioned by the petitioner was furnished in the service record in which the date of birth is mentioned as 11.8.1936. It appears that when the petitioner passed the High School Examination and date of birth of the petitioner mentioned in the said certificate was 11.8.1930, then, immediately the respondent would have taken a decision that as the date of birth of the petitioner mentioned in the High School Certificate is 1930, therefore, he will retire from service in 1990 and, therefore, the notice would have been given to the petitioner. The respondents have failed to consider this aspect of the matter that immediately when the petitoner came to know regarding wrong mentioning of the date of birth in the High School Certificate, he immediately submitted a representation for correction of the date of birth. If the petitoner would not have made any application for correction of date of birth, the respondents would not have any knowledge regarding the fact of wrong mentioning of date of birth in the High School Certificate and in the service record.
It is also well settled that the date of birth recorded in the service record at the time of entering into service is to be treated as correct. If at the time of joining the service, an employee is High School passed and he submitted the said certificate for the purpose of proof of date of birth, on the basis of the High school Certificate, if the same has been entered in the service record that will be treated to be correct and finally and conclusive proof regarding the date of birth of an employee. From the perusal of the original record relating to the service of the petitioner, it clearly goes to show that in each and every document except the High School Certificate the date of birth of the petitioner has been recorded as 8.11.1936. Only in the High School Certificate the date of birth of the petitioner has been mentioned as 11.8.1930. The provisions contained in U.P. Recruitment of Service (Determination of Date of Birth) Rules 1974, Rule 2 clearly states that the determination of correct date of birth of a government servant as recorded in the High School Certificate or equivalent examination at the time of entering into the government service or where the government servant has not passed any such examination or has passed any such examination after joining the service, the date of birth recorded in his service book at the time of entering into the government service, shall be deemed to be his correct date of birth or age as the case may be for all purposes in relation to his service. From the record now it is also clear and the petitioner has already retired in the year 1996 on the basis of the date of birth which was recorded in the service record i.e. 11.8.1936 but the salary for that period i.e. from 1.4.1994 to 10.8.1996 has not only been paid to the petitioner. But as the representation of the petitioner has been rejected by the impugned order dated 28.2.1995, therefore, the petitioner submits that the order dated 28.2.1995 is based on no evidence and the relevant records have not been considered and the respondents have not taken into consideration the well settled principles of law that the date of birth which has been recorded at the time of entrance of service that will be treated to be final and conclusive. The Supreme Court has also held that date of birth recorded at the time of entrance in service should be treated as final. This view has been confirmed in the case of State of U.P. Vs. Shiv Narain Upadhyay 2005 (6) S.C.C. 49.
In view of the aforesaid fact, I am of opinion that the order dated 28.2.1995; Annexure-18 to the writ petition cannot be sustained and is hereby set aside. As the order dated 28.2.1995 has been set aside and the petitoner has already retired and has worked up to 1996 on the basis of the date of birth recorded as 11.8.1936 and as the petitioner has actually worked, he is entitled for the salary of that period.
The writ petition is allowed and the order-dated 28.2.1995 is hereby set aside and the respondent no.4 is directed to pay arrears of salary to the petitoner for the period from 1.4.1994 to 10.8.1996 as the petitioner has actually worked during the said period. The aforesaid exercise shall be completed by the respondent no.4 within a period of four months from the date of production of a certified copy of this order before him.
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