DEO BATH YADAV v. D I O S AZAMGARH — 1995 DIGILAW 1247 (ALL)

In the above noted writ petition common questions of law and facts are involved, therefore, on the request of the parties they were directed to be connected and heard together. 2. The writ petition No. 9845 of 1990 was filed by Deo Nath Yadav challenging the validity of the order dated 10-12-1989. Prayers to issue a writ, order or direction in the nature of mandamus restraining the respondent not to interfere in his functioning as Class IV employee (Peon) in Gram Samaj Intermediate College, Jai Nagar, Azamgarh and to pay his salary also were are also made. This case is being treated as leading case as in the event this petition succeeds the other petitions will fail automatically and vice versa. Deo Nath Yadav, hereinafter referred to as the petitioner, and his counsel as petitioners counsel and other contesting parties as respondents for the sake of brevity and convenience. 3. I have perused the record of the four cases. From a perusal of the said record following facts came to light. It was on 1-1-1971 Shri Deo Nath Yadav, the petitioner in the leading case was appointed as class IV employee in Gram Samaj Inter College, Jai Nagar, Azamgarh (here inafter referred to as the College ). On the basis of extract of Kutumb register the date of birth of the petitioner was noted in the service book as 1-1-1930. After his appointment Shri Deo Nath Yadav continued to work in the College. By means of notice dated 10-12-1989, the principal of the college intimated Shri Deo Nath Yadav that he will attain the age of superannua tion i. e. , 60 years on 31-12-1989. He was, therefore, called to fulfil the formalities of retirement and to submit requisite papers so that they may be submitted to the authorities concerned. On receipt of the said letter peti tioner filed representations to the District Inspector of Schools contending that his date of birth was not correctly recorded in the service record. Along with the representation he annexed the certificate of Chief Medical Officer, a copy of Kutumb Register and voter list. Thereafter, Shri Deo Nath Yadav also wrote a letter to the District Inspector of Schools requesting him to rectify his date of birth, but of no avail, therefore, Civil Misc. Writ Petition No. 9845 of 1990 was filed by him for the above noted relief. 4. Thereafter, Shri Deo Nath Yadav also wrote a letter to the District Inspector of Schools requesting him to rectify his date of birth, but of no avail, therefore, Civil Misc. Writ Petition No. 9845 of 1990 was filed by him for the above noted relief. 4. On 13-4-1990 notices were issued to the respondents and learned standing counsel was granted time to file the counter affidavit. The writ petition was directed to be listed on 9-5-1990. On 9-5-1990 the writ petition was directed to be listed for admission in the second week of July, 1990. Learned standing counsel was again permitted to file counter-affidavit in the meanwhile. However, to counter-affidavit was filed consequently, on 9-7-1990 this Court was pleased to pass following order :- "on 13-4-1990 learned standing counsel was granted time to file counter-affidavit. The order was not complied with. Again on 9-5-1990 time was granted to learned standing counsel but no counter-affidavit has been filed till this date. Admit, Issue notice. Until further order the respondents are restrained from interfering in the functioning of the petitioner as class IV employee. They are further directed to pay the entire emoluments of salary due to the petitioner by 16-8-1990. The current salary will be paid to the petitioner by 5th of each succeeding month. " 5. Thereafter, counter-affidavit of Shri Jagdish Singh, Head Clerk of the college, along with the application dated, 27-7-1990, appear to have filed, for vacation of the interim order dated 2-7-1990, which was directed to be listed with the previous. papers in the week commencing 7-8-1990. In the counter-affidavit it was stated that date of birth of the petitioner as recorded in the service book was 1- 1-1930. That the District Inspector of Schools has colluded with the petitioner. In spite of the fact, the service book and other relevant papers were furnished to him well in time did not file counter-affidavit in the case and provided opportunity to the petitioner to obtain ex parte interim order dated 9-7-1990. Facts stated in other applications made in the writ petition, were also controverted and it was asserted that on 21-5-1990, after following the procedure prescribed under law one Shri Ram Pyare was appointed as peon in place of the petitioner. 6. Facts stated in other applications made in the writ petition, were also controverted and it was asserted that on 21-5-1990, after following the procedure prescribed under law one Shri Ram Pyare was appointed as peon in place of the petitioner. 6. In the rejoinder affidavit, the petitioner controverted the facts stated in the counter-affidavit and asserted that by the order of District Magistrate an enquiry was conducted by Additional District Magistrate who was submitted his enquiry report on 1-10-1990 in his favour. 7. After the expiry of the time granted by this Court to file counter-affidavit the District Inspector of Schools vide his order, dated 24-3-1990 addressed to the Principal of the college asserted that the date of retire ment of the petitioner was 31-12-1989. Thereafter, instead of filing the counter-affidavit in writ petition No. 9845 of 1990, he chose to pass the order dated 13-8-1990 placing the account of the college under single operation. It may be noted that vide order dated 16-8-1990 time granted to make the payment of arrears of salary by this Court. The order dated 13-8-1990 appears to have been passed with a view to make payment of arrears of salary to the petitioner by the District Inspector of Schools. The committee of management of the college thereafter, filed writ petition No. 20898 of 1990 challenging the validity of the order dated 10-8-1990 contending that the said order was passed by the District Inspector of Schools before the due date for payment fixed by this Honble High Court and without affording an opportunity of being heard, to the management. This Court on 20-12-1990 stayed the operation of the order dated 13-8-1990, thereafter by the order dated 7-1-1991 the order dated 20-12- 1990 was modified to the extent that the operation of the order dated 13-8-1990 was directed to remain stayed subject to the condition the management makes payment of salary of the petitioner. 8. In the meanwhile, Shri Ram Pyare, who was appointed in place of the petitioner filed Civil Misc. Writ Petition No. 344 of 1991 for a writ of mandamus commanding the District Inspector of Schools to accord approval to his appointment and to make the payment of salary w. e. f. 1-3-1990, contending that he was appointed by the management of the pf the college as peon after following the procedure prescribed under the law, along with one Shri Ranjeet Singh. The District Inspector of Schools however, approved the appointment of Shri Ranjeet Singh ; but refused to approve his appointment. On 8-1-1991 this Court was pleased to issue interim mandamus directing the respondent to accord approval or to show cause. 9. Pending the aforesaid petitions in this Court another writ petition No. 6318 of 1991 was filed by Shri Awadhesh Nath Singh, the Principal of the College challenging the validity of the order dated 24-3-1990 referred to above, contending that the District Inspector of Schools was colluding with the petitioner and he instead of filing the counter in the writ petition filed by him, provided him an opportunity to obtain favourable orders from this Court concealing and suppressing the material facts. This Court on 13-3-1991 was pleased to stay the operation of the order dated 24-3-1990 which is still operative. 10. I have heard learned Counsel for the parties and perused the record of the aforesaid petitions. Learned counsel for the petitioner con tended that the correct date of birth of the petitioner was 1-1- 1940 which was incorrectly recorded as 1-1-1930 in service record. He placed reliance upon the certificate issued by the Chief Medical Officer, a letter issued by Life Insurance Corporation of India and the order dated 31-3-1990 passed by the District Inspector of Schools. He also relied upon the report dated 1-10-1990 submitted by Additional District Magistrate to the District. Magistrate. 11. Learned counsel for the petitioner relied upon the following decisions of Honble Supreme Court and this Court in support of his contention that the date of birth recorded in the service book was liable to be corrected :- (1) Jiwan Kishore v. Delhi Transport Corporation, AIR 1980 SC 125 ; (2) Wasiullah Siddiqui v. State, 1992 (1) UPLBEC 69 ; (3) Chhote Lai v. D. I. O, S. 1992 (1) UPLBEC 1247 ; (4) Smt. Drupad Mittal v. M. D. Vidyalaya, 1992 (2) UPLBEC 1484 ; (5) Shivaji Malviya v. Central Bank of India, 1990 (2) UPLBEC 1324 ; and (6) High Court of Judicature at Allahabad v. W. Siddique, 1992 FLR 547. 12. 12. On the other hand, learned counsel for the respondent, contended that the petitioner by supressing and mis-stating the material facts particularly that the date of birth of the petitioner as recorded in the service book was 1-1-1930, succeeded in obtaining ex pane order dated 9-7-1990 learned counsel for the respondent has also referred to and relied upon the Government Order dated 23-8-1965 contained in Annexure III to the writ petition No. 29989 of 1991 and vehemently submitted that the provisions of said Government Order were analogous to the provision of Rule 2 of U. P. Recruitment of Service (Determination ^of Date of Birth) Rules, 1974. The contention of the learned counsel for t the respondents, in brief are that on the verge of retirement the date-of birth as recorded in the service book cannot be changed or altered except in exceptional circumstances. He also referred to and relied upon the following decisions of Honble Supreme Court and this Court which I will deal later : (1) State oforissa v, Brahmabhan Senapati, 1992 (2) SCC 491 ; (2) Executive Engineers v. Rangdhar Mallik, 1993 (Supp) (1) SCC 763 ; (3) Secretary and Commissioner Home Department v. R. Kirubhakararri, JT 1993 (5) SC 404 ; and (4) Nagarpalika v. State of U. P. , 1981 (1) UPLBEC 329. 13. In Jiwan Kishor v. Delhi Transport Corporation (supra), there was discrepancy with regard to the date of birth. According to one record it was 1917 while according to another record it was 1927. It was ruled that in such case the age assessed by Medical Board appointed by the employer may be accepted. This case has no application to the fact of the present case. 14. In Wasiullah Siddiqui v. State (supra), there was discrepancy of date of birth as recorded in the service book and noted in the School Certificate. This Court was pleased to observe that in such condition writ petition cannot be thrown on the ground of laches and that the principle of acquiescence will also not apply. It was also held that in respect of employee of High Court, U. P. Recruitment of Service Determination of Date of Birth Rules, 1974 cannot apply and ultimately issued the direction for consideration of the representation made by the petitioner in the said case. This case is also distinguishable on fact inasmuch as in the present case. It was also held that in respect of employee of High Court, U. P. Recruitment of Service Determination of Date of Birth Rules, 1974 cannot apply and ultimately issued the direction for consideration of the representation made by the petitioner in the said case. This case is also distinguishable on fact inasmuch as in the present case. There is no such discrepancy as indicated above. 15. In Chhote Lal v. D. 1. O. S. , (supra), the date of birth as recorded in the service record was 6-7-1925, the said date was corrected on the representation made by the petitioner as 7-4-1934 subsequently, the said order was reviewed and recalled and petitioner was required to retire on 10-1-1992. This Court was pleased to hold that without affording an opportunity of being heard the order was passed in favour of the petitioner could not be recalled. This case is also distinguishable to facts and has got no relevance in the present case. 16. In Smt. Drupad Mittal v. M. D. Vidyalaya (supra), altogether different controversy was involved and not the dispute with regard to the date of birth of any employee. 17. In High Court of Judicature at Allahabad v. W. Siddiqui (supra), the decision was overruled and set aside by this Court on a special appeal filed by the High Court and it was ruled that since there was no specific rule in 1975 Rules framed by the High Court, 1974 Rules were applicable to the officers and staffs of High Court. This case is also not relevant for the controversy involved in the present case. 18. In Shivaji Malviya v. Central Bank of India (supra), there was interpolation made in the service book. Petitioner, as soon as came to know about the same made representation, representation was rejected by the authorities concerned arbitrarily. High Court directed the respondents to correct the date of birth in the service book and not to retire the petitioner before he attains the age of retirement. In the present case the petitioner, as stated above, deliberately concealed the date of birth as recorded in the service book. It was only after the counter-affidavit was filed by the respondent. High Court directed the respondents to correct the date of birth in the service book and not to retire the petitioner before he attains the age of retirement. In the present case the petitioner, as stated above, deliberately concealed the date of birth as recorded in the service book. It was only after the counter-affidavit was filed by the respondent. He had to admit that the date of birth as recorded in the service book was 1-1-1930 and asserted that the said service book was interpolated and also placed reliance upon the report of A. D. M. which came into existence after the writ petition was filed by him in this Court. Therefore, this case is also distinguishable on facts and is not relevant for the controversy involved in the present case. 19. On the other hand, learned counsel for the respondent had relie upon and referred to the State of Orissa v. Brahmabhan Senpaii (supra), in this case employee joined Government Service in 1962 his date of birth at the time of recruitment was noted, as 18-5-1929 in the service register counting from the said date he was to attain the age of superannuation on 31-5-1979 on receipt of notice of retirement he filed a representation for correction of his date of birth as 27-6-1934. On the basis of School certificate, although he became aware of the said entry in 1970, no action was taken by him for five years, thereafter, his application for correction was held to have been rightly rejected under Rule, 1965 of Orissa General Financial Rule, which was under consideration and the said rule was analogous to the rules in the present case. The contention of the learned counsel for the respondent thus, finds support from the said case that on the verge of retirement the entry regarding date of birth in the service book cannot be changed. 20. In Executive Engineers v. Rangdhar Mallik (supra) on his own showing the date of birth of the petitioner was recorded in the service book, after about 18 years he had applied for the change of the said entry. 20. In Executive Engineers v. Rangdhar Mallik (supra) on his own showing the date of birth of the petitioner was recorded in the service book, after about 18 years he had applied for the change of the said entry. His application was rejected and he was retired from service on 30-11-1988, thereafter the petitioner approached Orissa Service Tribunal, the Tribunal vide its order dated 11-11-1991 quashed the order of superannuation on the ground that respondent was not afforded an opportunity of personal hearing and directed the authority to reinstate the respondent in service. On an appeal filed by the said respondent Honble Supreme Court was pleased to hold that there was no requirement of any law to give any personal hearing to the respondent before dismissing his representation the appeal was thus, allowed and the order of the Tribunal was quashed. This decision also supports the contention of the petitioner that date of birth once recorded in the Service Book cannot be altered, long after the date, the same was recorded. 21. In Secretary and Commissioner Home Department v. JR. Kirubha-karam (supra), it was ruled by the Supreme Court that when the dispute is raised regarding the date of birth on the eve of superannuation, the court or Tribunal must be slow in granting relief and the entry in the service book cannot be corrected on the basis of the subsequent reports. This case also fully supports the contention of the learned counsel for the respondent. 22. In Nagarpalika v. State of U. P. (supra), the service book of the petitioner was lost he was, therefore, asked to furnish medical certificate regarding the age. He was thereafter granted relief on the basis of the medical certificate by the Labour Court subsequently, the service book was traced out which justified the retirement of the petitioner, the order of the labour court was, therefore, set aside. 23. As stated above, the Government order dated 23-8-1995 provides complete procedure for recording the date of birth of an employee at the time of his recruitment or induction in the service. It provide. , that :- "alteration of date of birth when the date of birth recorded in the service book which has been attested and has stood unchal lenged for a number or years, it should not be altered except in very exceptional circumstances. " 24. It provide. , that :- "alteration of date of birth when the date of birth recorded in the service book which has been attested and has stood unchal lenged for a number or years, it should not be altered except in very exceptional circumstances. " 24. The aforesaid provision is analogous to the provision of Rule 2 of U. P. Recruitment of Service (Determination of Date of Birth) Rules, 1974. The aforesaid decisions dealing with and interpreting said rules are, thus fully applicable in the present case. 25. Relying upon the aforesaid decisions and the emphatic language of Rule 2 of aforesaid rules it was held by this Court in writ petition No. 32713 of 1994-18-7-1995) that :- Shri K. Singh v. State of V. P. (supra), (decided on "i have duly considered the arguments made by the learned counsel for the petitioner. In my opinion, learned counsel for the petitioner is right in his submission that the date of birth as recorded in the service book at the time of recruitment is final and the same cannot be altered or changed by the authorities concerned in view of the emphatic language of the aforesaid rule and law laid down by Honble Supreme Court and this Court in several cases. 26. From the record of the aforesaid cases it is apparent that the petitioner had full knowledge of the fact that his date of birth was entered/ recorded in the service record as 1-1-1930. He permitted the said entry to continue till the letter dated 10-12-1989 was delivered to him whereby he was intimated regarding his retirement and asked to fulfil the formalities of retirement by the principal of the college. Petitioner in spite of the knowledge of the said fact, deliberately and willfully concealed in Civil Misc. Writ Petition No. 9845 of 1990, the fact that his date of birth as recorded in the service book was 1-1- 1930. The said fact was not only material but in view of several decisions of this Court was the deciding factor in the case. By suppressing and mis-leading the said fact petitioner has succeeded in obtaining ex parte interim order dated 9-7-1990 from this Court. 27. The said fact was not only material but in view of several decisions of this Court was the deciding factor in the case. By suppressing and mis-leading the said fact petitioner has succeeded in obtaining ex parte interim order dated 9-7-1990 from this Court. 27. In Asiatic Engineering Company v. Acchru Ram, AIR 1951 All 786 (FB), it was ruled that: "a person obtaining an ex parte order or a rule nisi by means of a petition for exercise of extraordinary powers under Article 226 of the Constitution, must come with clean hand, must not suppress any relevant facts from the Court, must refrain from making mis-leading statement and from giving incorrect informa tion to the Court. The Courts for their own protection should insist that the persons invoking these extraordinary powers should not attempt in any manner to misuse its valuable right by obtaining an ex parte order, by suppression, mis-representa tion or mis-statement of fact. " It was further observed that :- "if the facts are stated in such a way as to mislead and deceive the Court, there is a power inherent in court to protect itself and to prevent abuses of process to discharge the interim order and to refuse further with examination on merit of the application. 28. In Chandra Shashi v. Anil Kumar Verma, 1994 (1) SCC 421, was observed by Supreme Court as under :- "it is apart (sic) increasing tendency of taking recourse of objection able means to get a favourable verdict in the court has to be viewed gravely to deter the large number of persons approaching the court from doing so, such a tendency its required to be curbed. " 29. In the said decision, it was held that filing of a forged document with intent to defraud or mislead the court, amounts to interference with administration of justice and contempt of court. 30. In Dhananjay Sharma v. State of Haryana, 1995 (3) SCC 757 : 1995 JIC 1108 (SC) Honble Supreme Court was pleased to hold as under :- "the filing of false affidavits in judicial proceedings, in any court of law exposes the intention of the party concerned in perverting the course of justice. 30. In Dhananjay Sharma v. State of Haryana, 1995 (3) SCC 757 : 1995 JIC 1108 (SC) Honble Supreme Court was pleased to hold as under :- "the filing of false affidavits in judicial proceedings, in any court of law exposes the intention of the party concerned in perverting the course of justice. The due process of law cannot be permitted to be slighted nor the majesty of law be made a mockery of by such acts or conduct on the part of parties to the litigation or even while appearing as witnesses. Any one who makes an attempt to impede or undermine or obstruct the free flow of the unsoiled stream of justice by resorting to the filing of false evidence, commit criminal contempt of the court and renders himself liable to be dealt with in accordance with the Act with a view to keep the stream of administration of justice unpol luted so that purity of courts atmosphere may give vitality to all the organs of the State. " 31. The Apex Court of the country extended the scope of the afore said Rule in In re : Shri Sanjiva Dutta case, 1995 (3) SCC 619 : 1995 (2) JCLR 62 (SC) where it was held that :- "offence of the contempt of court is committed not only by those, who author of an offensive document, but also those who file it in the court. " It was further held that:- "the advocate who drafted/settled the offending document also committed contempt of court as author of the document. " 32. The aforesaid decisions clearly lay down the law that the parties or their counsel who makes misleading statement, give incorrect information, file forged documents, file false affidavits in judicial proceedings commit criminal contempt. The effect of suppression of relevant facts also mislead the Court and obstruct it from arriving at correct and just conclusion thus relying and following the law laid down in aforesaid decisions I extend the scope of the aforesaid rule little further and hold that the parties or their counsel who deliberately suppress the material facts are also guilty of criminal contempt and are liable to be prosecuted and punished for the same. 33. 33. In the present case, petitioner deliberately suppressed his date of birth, which was recorded in the service record and succeeded in obtaining the interim order dated 9-7-1990 from this Court and on the basis of the said order he continued in service even after the date of his retirement. The writ petition and the affidavit filed in support thereof were drafted and filed in this court by his counsel, therefore, the petitioner and his counsel, in my opinion, have prima facie committed the contempt of Court and the present petition is liable to be dismissed on this ground also. 34. However, in view of the fact, petitioner happens to be illiterate person, a Class IV employee and in view of the facts that in the rejoinder affidavit he has admitted though reluctantly and with reservations that his date of birth in his service record was recorded as 1-1-1930,1 propose to take lenient view in the matter and simply depricate the conduct" of the petitioner and his counsel but admonish them not to commit such mistake again. 35. In view of the aforesaid discussions the writ petition of Deo Nath Yadav (leading case) deserves to be dismissed. 36. Before I part. with the case, I would like to state that in this case the District Inspector of Schools apparently colluded with Shri Deo Nath Yadav for the reasons best known to him, he did not file counter affidavit in the writ petition filed by the petitioner and did not bring the fact to the notice of the Court that the date of birth of the petitioner as recorded in the service book was 1-1-1930. In spite of the fact that the service book of the petitioner was furnished to him by the principal of the college much before the order dated 9-7-1990 was passed by this Court. The then District Inspector of Schools has also passed the order, dated 13-8-1990 before the same was required to be passed without affording an opportunity of being heard to the management with a view to make payment to Deo Nath Yadav. It was because of his inaction and collusion that payment of salary has been made to the petitioner w. e. f. 1-1- 1990 till date although he was not entitled to receive the same. In view of the said facts the conduct of the District Inspector of Schools concerned is depricated. 37. It was because of his inaction and collusion that payment of salary has been made to the petitioner w. e. f. 1-1- 1990 till date although he was not entitled to receive the same. In view of the said facts the conduct of the District Inspector of Schools concerned is depricated. 37. I, therefore, dismiss the Writ Petition No. 9845 of 1990 with costs. The Writ Petition Nos. 20898 of 1990, No. 344 of 1991 and No. 6318 of 1991 are allowed. The orders dated 13-8-1990 and 24-3-1990 are quashed. The respondent No. 1 is directed to accord approval to the appointment of Shri Ram Pyare and to pay the arrears of salary. Since the Government exchequer will have to bear the double burden, the amount to be paid to Ram Pyare will be recovered from Shri Deo Nath and the District Inspector of Schools concerned jointly and severally. Decided accordingly. .