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SHIV CHARAN SINGH versus EXECUTIVE OFFICER, NAGAR PALIKA PARISHAD, LALITPUR AND ANR.

High Court of Judicature at Allahabad

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Shiv Charan Singh v. Executive Officer, Nagar Palika Parishad, Lalitpur And Anr. - WRIT - A No. 75411 of 2005 [2006] RD-AH 11987 (21 July 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved  on 10.05.2006

Delivered on 21.07.2006

Civil Misc. Writ Petition 75411 of 2005

Shiv Charan

Versus

Executive Officer, Nagar Palika

Parishad Lalitpur and another

Hon'ble V.K. Shukla,J.

Shiv Charan, Petitioner has approached this Court questioning the validity of the action taken by the Executive Officer, Nagar Palika Parishad Lalitpur dated 13.10.2005 by means of which directives have been issued for superannuating the petitioner by treating his correct date of birth as 20.10.1944 and completing  age of 60 years on the said date.

Brief background of the case as mentioned in the instant writ petition is that petitioner has been appointed on class IV post as Sweeper at Nagar Palika Parishad, Lalitpur  on adhoc basis and subsequently his service were confirmed against the substantive vacancy. In the service book of the petitioner at the time of entry, date of birth of the petitioner was recorded as 02.08.1948 and in terms of the provision as contained under Retention and Retirement of Servants of Muncipal Board Regulation 1965 the age of superannuation of petitioner as per 60 years would be 02.08.2008. Petitioner received show cause notice on 27.09.2005 asking the petitioner to show cause as to why his services may not be terminated on the ground of attaining 60 years of age on the basis of date of birth as 20.10.1944. As per show cause notice Principal of Adarsh Vidyalaya Lalitpur has verified school leaving certificate of the petitioner wherein date of birth of the petitioner was shown as 20.10.1944. Petitioner has contended that on 28.09.2005 request was made for supplying the copy of the complaint and alleged Transfer Certificate and further prayer was made for according fifteen days time for filing reply to said show cause notice. Petitioner has contended that required papers were not supplied to him and in the absence of the same as time was coming to an end reply was submitted on 29.09.2005, reserving right to file additional reply. Petitioner has contended that thereafter he received communication dated 13.10.2005 informing and intimating him that he has attained the age of 60 years on 31.10.2004 assuming the date of birth as 20.10.1944 as mentioned in the school leaving certificate as correct and his services are terminated  as age of superannuation has been attained. At this juncture present writ petition has been filed.

On presentation of present writ petition before this Court on 14.12.2005 passed following order was passed which is being quoted below:

"Issue notice to respondent no. 1. Steps be taken within one week. Respondents are allowed one month's time to file counter affidavit.

The learned counsel for the petitioner contended that the date of birth recorded in petitioner's service book as 02.08.1948 has been changed by the Executive Officer as 20.10.1944 on the basis of a complaint submitted by one Puran Lal. It is submitted that neither copy of the complaint nor copy of the alleged school leaving certificate on the basis of which the date of birth of the petitioner has been changed has been given to the petitioner. It is submitted that from the time of entry into service of the petitioner, the date of birth has been continuing for last several decades and at no point of time any objection has been raised. On the above submission the petitioner has made out a case for grant of interim order relief.

List this writ petition on 23.01.2005. Till 31.01.2005, the impugned order dated 13.10.2005 (annexure-5) shall remain stayed."

Counter affidavit has been filed and therein it has been contended that petitioner has not approached this Court with clean hand and further in the institution concern that petitioner was made regular in August 1983 and petitioner in his turn on being asked to furnish the proof of his age and petitioner despite having school Education up to 5th standard in place of his school leaving certificate submitted the medical certificate issued by the  then Chief Medical Officer (C.M.O). The certificate of C.M.O, Lalitpur is dated 12.08.1983. Qua the said certificate of the C.M.O it has been contended that in the said certificate figure 45 had been replaced and in its place figure 35 has been replaced as the age of petitioner. Over writing on the original figure of petitioner's age is apparent. In this background it has been contended that manipulation had been done. It has also been contended that at the time of initial appointment on ad hoc basis in the year 1963 petitioner was 15 year old minor and minor could not have been appointed on the post. In this background it has been suggested that date of birth of the petitioner as 02.08.1948 is false and wrong. It has also been contended that as petitioner was appointed in the year 1963 i.e prior to 1964 therefore, according to Retention and Retirement of Servants of Municipal Board the age of retirement of those employees who were appointed before 1964 is 58 years and not 60 years. In this background it has further been contended that petitioner has over stayed in service by concealing his age. Factum of show cause notice dated 27.09.2005  has not been disputed and it has been contended that on 03.08.2005 a complaint alongwith School Leaving Certificate issued on 20.07.2005 wherein the date of birth of the petitioner was mentioned as 20.10.1944, was received through the Additional Collector Lalitpur and thereafter personal record of the petitioner has been perused and service record of the petitioner sent for verification and confirmation to the concerned school and thereafter impugned order in question has been passed. It has also been contended that the documents which has been asked by the petitioner, were permitted to be perused and in fact petitioner has perused the same. In this background it has been contended that rightly reliance has been placed on school leaving certificate, as such no advantage and benefit can be derived to the petitioner and writ petition is liable to be dismissed.  

Rejoinder affidavit has been filed and therein statement of fact mentioned in the counter affidavit has been disputed and  that of writ petition has been reiterated. It has also been contended that documents which has been filed at page no. 18 and 19 of the counter affidavit are manipulated documents  as  name of parentage has wrongly been shown. In this background it has been contended that writ petition is liable to be allowed.

After respective pleadings mentioned above have been exchanged, inasmuch as original record in question has also been perused, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Sanjay Agarwal, learned counsel for the petitioner  assailed validity of the decision communicated by the Executive Officer, Nagar Palika Parishad, Lalitpur by contending that in the present case principal of natural justice have been violative  with impunity as copy of complaint and material in support of the same has never been supplied and further by no stretch of imagination respondents could have been permitted to change entry made in the service book in the year 1983, as such impugned  order in question is unsustainable and same is liable to be quashed.

Sri K.K.Dubey, Advocate on the other hand contended with vehemence that in the present case petitioner has practiced fraud and once authenticity of the school leaving certificate is established then incorrect entry made in the service book of the petitioner is of no consequence as such impugned order in question is sustainable and no interference be made by Court.

After respective arguments have been advanced, undisputed factual position which is emerging is to the effect that petitioner was appointed on adhoc basis in the year 1963 and at that point of time petitioner was 15 years old and date of birth of the petitioner as recorded in the service book of the petitioner at that point of time when services of petitioner were confirmed   as 02.08.1948. During entire continuance of service at all point of time date of birth of the petitioner as per service book has been treated and accepted as 02.08.1948. Record reveals that on 03.08.2005 a complaint alongwith school leaving certificate issued on 20.07.2005 wherein date of birth  of petitioner was mentioned as 20.10.1944 was received through Additional Collector and on the basis of the same Headmaster of the institution sent the said letter  for verification and confirmation to the aforesaid Headmaster and thereafter report dated 09.09.2005 was sent to respondent no. 1 and based on the said report the order dated 27.10.2005.

Determination of correct date of birth or age is to be done in terms of Rule 2 of the U.P. Recruitment to Services (Determination of Date of Birth) Rules 1974. Said Rule for the sake of convenience is being reproduced below:

"2. Determination of correct date of birth or age:- The date of birth of a Government Servant as recorded in the certificate of his having passed High School or equivalent examination at the time of his entry into the Govt. service or where a Government Servant has not passed any such examination as aforesaid or has passed any such examination after joining the service, the date of birth of the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth of age as the case may be for all purposes, in relation to his service including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."

               

Bare perusal of these Rules would go to show that date of birth of date of birth of a Government Servant as recorded in the certificate of his having passed High School or equivalent examination at the time of his entry into the Govt. service or where a Government Servant has not passed any such examination as aforesaid or has passed any such examination after joining the service, the date of birth of the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth of age as the case may be for all purposes, in relation to his service including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances. Thus, as per these Rules the date of birth which has been recorded in the service book in the absence of school leaving certificate is conclusive and is not at all liable to be changed.

Time and again Hon'ble Apex Court has deprecated the practice of entertaining the application for changing the date of birth at belated stage and after sufficient time being elapsed. In the case of Government of Andhra Pradesh and another v. M. Hayagreev Sarma, (1990) 2 SCC 682 Hon'ble Apex Court while considering A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 concluded that the date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for alteration in the date of birth so recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commencement of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained under Births, Deaths and Marriages Registration Act, 1886 was not open.

In the case of Union of India v. Harnam Singh, (1993) 2 SCC 162  Hon'ble the Apex Court has taken the view that  there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979 and those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.

In the case of Executive Engineer, Bhadrak (RandB) Division, Orissa and others v. Rangadhar Mallik, 1993 Supp (1) SCC 763 Hon'ble Apex Court considered Rule 65 of the Orissa General Finance Rules stipulating that representation for correction of date of birth made near about the time of superannuation shall not be admitted. Hon'ble Apex Court has held that the representation for correcting the date of birth made by respondent 18 years after is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.

In the case of The Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran,  reported in AIR 1993 SC 2647 has held that "An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book.

....... As such whenever an application for alteration of the date of birth is made on the eve of superannuation or nearabout that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal."

Hon'ble Apex Court in the case of State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302 has held that the rule provided that an application for alteration of recorded date of birth would be entertained only if made within five years after entering the service. Hon'ble Apex Court has held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Government servant would not be permitted to challenge the entry at the fag end of his service.

In the case of Burn Standard Co. Ltd. and others v. Dinabandhu Majumdar and another, AIR 1995 SC 1499 Hon'ble Apex Court has held that "Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and latches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'Service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."

All these judgments quoted above have been followed in principle in the case of U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar Agnihotri reported in 2005 (3) AWC 2212.

In view of catena of decision of Hon'ble Apex Court thus, date of birth which has been entered in the service book cannot be permitted to  be change at belated stage. At the fag end of career and this principle applies with full force to both the parties i.e. the employer and employee. This Court in the case of Fakuriddin Vs. Nagar Palika Parishad reported in 2005 (3) AWC 2966 has taken similar view to the effect by mentioning, "Just an employee is not entitled to have his date of birth changed at the fag end of career, the employer also can not be permitted to change the date of birth of its employee without there being any concrete evidence for the same and that too at the fag end of career." Thus, inevitable conclusion is that at the fag end of career, date of birth as recorded in service book, which occupied the filed for all these long year, can not be permitted to be changed except in the case of fraud or misrepresentation and there is clinching evidence to support the same, and this too is permissible only after affording opportunity of hearing to the incumbent concerned.

To start with much capital has been sought to be made of the fact that at the point of time when petitioner entered into service he was minor if his date of birth is accepted as 02.08.1948, and minor cannot be inducted in the employment as such subsequent determination of date of birth is correct determination. This fact is true that minor cannot be inducted into employment.

Here in the present case fact of the matter reveals that petitioners initial entry into service was on ad-hoc basis. Date  of birth of petitioner was recorded in service book as 02.08.1948, in the year 1983 on the basis of certification made by Chief Medical Officer. While making this entry, the question which is sought to be raised today could have been raised. Respondents with them had full details of the entry of petitioner in service, and this collateral challenge is impermissible, as in spite of equipped  with full material action has not been taken within reasonable period.   Both the parties were equally guilty, inasmuch as it was bounden duty of respondents to ensure that no minor was provided employment. Division Bench of this Court in the case of U.P. Power corporation Ltd. And another Vs. Satya Narain(Driver) and another reported in 2005 (2) UPLBEC 1246. faced with identical situation has taken the view that in the matter of correction of age, Court has to exercise an equitable discretion in the matter and if petitioner  was admitted into service below age,  then both the parties are equally guilty and entry made in service book be treated as correct, and it would be inequitable to correct factual assessment on the basis of merely, what should have been done or should not have been done, after sixteen years, when factual assessment was made.

Here also situation is identical to the case of the petitioner. In case petitioner was admitted in service being minor and that was reflected from the date of birth of the petitioner being recorded in the service book in the year 1983 then remedial measure ought to have taken at that point of time qua the same but having permitted the situation to continue and hold the field for such long period, then respondents cannot be permitted to change the date of birth of its employee  at the fag end of his career. Much stress has been laid on misrepresentation by the petitioner. Principal of the institution wherein it has been alleged that petitioner has studied upto class Vth has submitted report on 09.09.2005. In the said school leaving certificate filed at page 24 of counter affidavit parentage shown is different as at each place in the records maintained by Respondents petitioner's father name has been described as "Nanne" and in the school leaving certificate, which is sole foundation and basis for taking decision, same is described as "Nanne". Petitioner has made categorical statement of fact that he was not at all connected with institution in question but at no point of time claim of the petitioner has ever adverted to on this score and school leaving certificate has been accepted as gospel truth and impugned decision has been taken. Decision taken as such is faulty on the face of it.

Consequently order dated 13.10.2005 passed by Executive Officer, Nagar Palika, Lalitput is hereby quashed and set aside. Petitioner shall be permitted to continue in service on the basis of his date of birth as entered in service book i.e. 02.08.1948, as shall be entitled for benefits.

In terms of observations made above, present writ petition is allowed.

Dated 21.07.2006

Dhruv

 

 

         


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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