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2002 DIGILAW 1533 (RAJ)

Daya Ram v. Jaipur Vidyut Vitran Nigam Ltd.

2002-09-04

S.K.KESHOTE, SHASHI KANT SHARMA

body2002
JUDGMENT : 1. This appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the order dated 11-7-1994 of the learned single Judge in S. B. Civil Writ Petition No. 2651 of 1994. 2. Facts giving rise to this appeal are to be briefly stated.Daya Ram, the petitioner-appellant (hereinafter referred to as 'the appellant') entered in the services of respondent No. 1 Rajasthan State Electricity Board (for short 'the respondent Board') on 16-4-1957 as Helper Gr. II. 3. He was promoted on the post of Helper Gr. I on the recommendation of the Fixation Committee under the order dated 10-9-1970 with effect from 2-7-1967. 4. In para No. 3 of the writ petition the appellant stated that his date of birth was entered by the office on estimate basis as 16-4-1937, what he further stated that the date of birth has not been verified nor was the petitioner required to give declaration or information in this regard nor information was given to the appellant this his date of birth was written as 16-4-1937 on estimate basis. 5. In para No. 4 of the writ petition it is stated that consequent upon his promotion as Helper Gr. I with effect 2-7-1967 the competent authority required the appellant to give a certificate of his qualification and date of birth. The appellant stated that he submitted to the competent authority a certificate issued by Sarvodaya Inter College, Bunboi (Bulandshahar) showing that he had studied in the school in 6th, 7th, 8th and 9th Standard and the date of birth as 1-10-1942. It is grievance that in spite of submitting the certificate correction was not made in the service book regarding his date of birth. Neither date of birth was verified nor changed by the respondent No. 2. 6. In para No. 6 of the writ petition the appellant stated that right from the year 1986 he has continuously been represented to the respondent for change of his date of birth as 1-10-1942 in place of 16-4-1937, yet no change was made. A seniority list was issued against which a representation was submitted by the appellant in which a representation was submitted by the appellant in which mention that his date of birth has wrongly been shown and mentioned as 16-4-1937 and the same should be accordingly changed to 1-10-1942. 7. A seniority list was issued against which a representation was submitted by the appellant in which a representation was submitted by the appellant in which mention that his date of birth has wrongly been shown and mentioned as 16-4-1937 and the same should be accordingly changed to 1-10-1942. 7. It is to be mentioned here that the appellant has not produced the copy of this alleged seniority list nor he even mentioned the date on which the same was published. The copy of representation has also not been submitted nor he has mentioned the date on which the same has been sent. 8. The reference has been made by the appellant to his another representation. Application dated 17-12-1988 in which it is prayed that his date of birth be corrected to 1-10-1942. Another application stated to have been made for correction/modification stated to have been made for correction/modification of his date of birth on 3-4-1992. What the appellant stated that no action has been taken to correct his date of birth. Copy of this representation dated 3-4-1992 is submitted enclosed to the petition as Annexure-3. 9. The reference has been made to the letter dated 10-1-1993 of the Assistant Engineer, respondent No. 2 written to the Assistant Engineer C-II stating that certain defects have come to his notice on perusal of service book of the appellant. In para No. 1 of that letter it is stated that in service book the date of birth of the appellant is 16-4-1937 which has not been verified. Possibility of manipulating this letter by the appellant cannot be overruled in the facts of the case. 10. The appellant submitted reply to this letter and stated that his date of birth has wrongly been mentioned on estimate basis and his date of birth be accordingly corrected as 1-10-1942. No action was stated to have been taken and the appellant sent a notice for demand of justice (Annexure-5) to the respondents. The appellant received order dated 24-3-1994 (Annexure-6 to the writ petition) with regard to his retirement from the service with effect from 30-4-1995 afternoon. 11. The writ petition was submitted on 29-4-1995. Alongwith the writ petition a stay application has also been filed. 12. In the writ petition the appellant has not stated on which date the copy of order dated 24-3-1995 was received by him. 11. The writ petition was submitted on 29-4-1995. Alongwith the writ petition a stay application has also been filed. 12. In the writ petition the appellant has not stated on which date the copy of order dated 24-3-1995 was received by him. For non-mentioning of this fact reasonably an inference can be drawn that copy of this order would have been served upon the appellant forthwith. The writ petition has been filed on 29-4-1995, this act appears to be a deliberate one so as to get the stay order/interim relief from the court. 13. Be that as it may the appellant has not got the matter circulated till 19-5-1994. On 19-5-1994 on the request of the appellant the matter was adjourned to 24-5-1994. On this date the matter appears not to have been reached. Be that as it may ultimately on 11-7-1994 the writ petition was dismissed by the learned single Judge in limine. 14. The appeal is presented on 9-8-1994. Along with the appeal, an application for stay/interim relief has also been filed. 15. The appeal came up for preliminary hearing on 17-8-1994. Appeal was admitted. On 21-4-1995 the Court has stayed the order dated 24-3-1994 retiring the appellant from the services. 16. It is not in dispute that under the interim relief granted by the Court the appellant continued in the service till he attains the age of superannuation calculated on the basis of his alleged date of birth 1-10-1942. On 9-11-2000 he submitted an application and prayed therein to direct the respondents to pay to the appellant all the pensionary and other retiral benefits. This application was decided on 24-11-2000. The respondents were directed to release the retiral benefits to the appellant as admissible, by taking his date of birth as 16-04-1937 as per record (services book) of the respondents. 17. Learned counsel for the appellant contended that the learned single Judge erred in dismissing the writ petition on the ground that it involved determination of disputed question of fact. 18. It has next been contended that as per the provisions of the Rajasthan State Electricity Board (Technical Services) Regulations, 1975 it was incumbent upon the respondents to correct the date of birth on an application. The respondents have failed to pay any attention on the representation made by the appellant. That aspect has not been considered. 19. 18. It has next been contended that as per the provisions of the Rajasthan State Electricity Board (Technical Services) Regulations, 1975 it was incumbent upon the respondents to correct the date of birth on an application. The respondents have failed to pay any attention on the representation made by the appellant. That aspect has not been considered. 19. It is submitted that before the learned single Judge prayer has not been made to make an adjudication on the question whether the date of birth was 16-4-1937 or 1-10-1942. Even during the course of arguments, it has been submitted that the respondents may be directed to consider the representation of the appellant and pass the appropriate orders. It is urged that the date of birth in the service book of the appellant was entered on estimated basis. It is unverified and thus highly improper on the part of the respondent to retire the appellant on that basis. 20. Lastly it is contended that the appellant has completed the age of superannuation on the basis what he is claiming his date of birth to be 1-10-1942 and he worked on the post, the respondents be directed to give all retiral benefits to the appellant making calculation on that basis. 21. Shri J.K. Singhi, learned counsel for the respondents submitted that the appellant has given 16-4-1937 his date of birth in the declaration and nomination form submitted for employees general provident fund on 31.3.1989. A zerox copy of this form is placed for perusal of the Court. Same has been shown to the learned counsel for the appellant. He has not denied the contents and correctness of this document. With the consent of the learned counsel for the appellant this document is taken on record of the appeal and marked as Court document No. 1. 22. Shri Singhi, learned counsel for the respondents submitted that the claim of the appellant for correction of his recorded date of birth in his service book on the basis of document Annexure-2 enclosed to the writ petition is not tenable. It is neither the certified copy nor the zerox copy of the original document. The date of birth mentioned therein is taken to be correct on 16-4-1957 and the age of the appellant was only of 14 years, 6 months and 14 days. Thus he could not have been appointed in the Board's services on that date. It is neither the certified copy nor the zerox copy of the original document. The date of birth mentioned therein is taken to be correct on 16-4-1957 and the age of the appellant was only of 14 years, 6 months and 14 days. Thus he could not have been appointed in the Board's services on that date. In his submission the appellant got the benefit of entering in the services on the basis of the date of birth recorded in his service book and now he wants to take further benefit of the extension of the services. 23. Shri Singhi, learned counsel for the respondents urged that though he entered In the service in the year 1957 but not bothered or concerned with the entry of his date of birth in the service record for all these years. At this late stage otherwise also it is not permissible to him to apply of correction thereof. It is submitted that it is highly disputed question of fact and same cannot be gone into in a writ petition under Article 226 of the Constitution of India and rightly on this ground the writ petition has been dismissed by the learned Single Judge. It has next been dismissed by the learned Single Judge. It has been contended that this way the correction in the recorded date of birth are made unscrupulous employees/officers may get double benefits. Lastly it is contended that the appellant was continued in the service beyond the age of superannuation under the interim order of the Court. Thus whatever benefits he got under the interim order of the Court are to be restored to the Board. 24. We have given thoughtful consideration to the submissions made by the learned counsel for the parties, carefully gone through the memo of writ petition, its enclosures, the memo of special appeal, reply to the stay application and the order of the learned Single Judge. 25. The writ petition of the appellant was dismissed in limine. Thus there was no opportunity for the respondents to put their case before the learned Single Judge. When the appeal is admitted there would not have been any hurdle or legal impediment in the way of the respondents to file the reply to the writ petition. 25. The writ petition of the appellant was dismissed in limine. Thus there was no opportunity for the respondents to put their case before the learned Single Judge. When the appeal is admitted there would not have been any hurdle or legal impediment in the way of the respondents to file the reply to the writ petition. In a given case where the writ petition is dismissed in limine and against the order of the learned Single Judge appeal is admitted it is acceptable, advisable and in the larger interest of the parties to the litigation that other side may file the reply to the writ petition so that before the court their defence may be available for consideration with prior notice to the appellant also. Otherwise also the appellate jurisdiction is co-extensive with the original jurisdiction of the court in the appeal filed against an order passed by the learned Single Judge in a petition under Article 226 of the Constitution of India. 26. Be that as it may the respondents filed a detailed reply to the stay application. Along with this reply the respondents submitted various documents. 27. Rejoinder to this reply to the stay application has not been filed by the appellant. 28. In the reply to the stay application it is stated that the appellant is not produced any evidence to show that a representation was made by him in the year 1966 or thereafter. However, it is admitted that the appellant made the representation on 17-12-1988. Submission of the school leaving certificate has also been admitted. 29. It is submitted that the final seniority list showing the service particulars including the date of birth of employees as on 31st March, 1968 was issued on 7/10th May, 1975 after inviting objections to the provisional seniority list which also contained date of birth of the appellant. This provisional seniority list was duly notified on the notice board. The appellant did not make any representation against this provisional seniority list. 30. Another seniority list was issued on 29-9-1987 which also contained the date of birth along with the other service particulars of the employees including the appellant after inviting the objection to provisional seniority list. In this provisional seniority list the appellant's date of birth has been shown 16-4-1937. The appellant did not make representation against this also. 31. 30. Another seniority list was issued on 29-9-1987 which also contained the date of birth along with the other service particulars of the employees including the appellant after inviting the objection to provisional seniority list. In this provisional seniority list the appellant's date of birth has been shown 16-4-1937. The appellant did not make representation against this also. 31. Again an another tentative seniority list was issued on 24-3-1979 inviting objections against the entries made therein including the date of birth. 32. The appeal was provided against the entries made therein within 30 days. The appellant preferred appeal against this tentative seniority list and the same was decided by the appellate authority vide order dated 15-3-1984. The appellant was heard on 7-3-1984 and, thereafter, this order was communicated to him. The copy of the note sheet as well as the order are submitted along with reply as Annexure-4. 33. It is stated in the reply to the stay application that the date of birth 16-4-1937 of the appellant is duly verified by the Assistant Engineer C-II of the respondent Board, Jaipur. This has been done, as per this seniority list published on 9-3-1987. 34. As said earlier rejoinder to the reply to the stay application has not been submitted by the appellant and the averments made therein stand un-controverted and the same are to be taken correct. 35. In the writ petition the appellant challenged the order Annexure-5 on the ground that despite of submitting the documents and repeated representations the matter has not bee decided by the respondent. The plea has also been taken that the principles of natural justice are not followed as ignoring the representations made, the order has been passed against the appellant. Thus the grievance of the appellant is that his representations regarding correction in the date of birth are not decided and this order has been passed retiring him from the service by the respondent Board which is wholly unjustified. 36. This claim of the appellant for correction of the date of birth has been considered and after hearing him same was not found worth of acceptance. The document produced by the respondents along with the reply to the stay application i.e. inviting the objections against seniority list in which this date of birth has been mentioned, the appellant filed representation and it has been considered and decided after hearing him. The document produced by the respondents along with the reply to the stay application i.e. inviting the objections against seniority list in which this date of birth has been mentioned, the appellant filed representation and it has been considered and decided after hearing him. This fact that the appellant submitted objections against the provisional seniority list in which his date of birth was shown as 16-4-1937 and the same have been considered and decided after hearing him and his claim was not accepted, it is a relevant and material fact to the controversy raised in this case. The appellant has deliberately concealed this fact from the Court. The writ petition is filed by him one day before the date of his retirement and the fact afore-stated has not been disclosed. It is a different matter that writ petition has been dismissed in limine but by concealing/suppressing this material, relevant and important fact the appellant has made an attempt to get not only his writ petition admitted but also the interim order or stay. In the appeal also this material, relevant and important fact has been concealed by the appellant. In these facts of this case we are satisfied that the writ petition deserves to be dismissed only on the ground of deliberate concealment of material fact made by the appellant. 37. In the proceedings under Article 226 of the Constitution which initiated for attracting the extraordinary equitable jurisdiction of High Court, it is utmost important and necessary that the petitioner should come forward with clean hands. High Court sitting under extraordinary jurisdiction also cannot encourage the idea that a person is entitled to adopt dubious, dishonest or fraudulent means and make false averments or conceal the material facts while submitting a writ petition in High Court and when the other side has exposed this material concealment of the facts made by the petitioner by putting the necessary facts before the Court, it is not proper to allow the petitioner to make his submissions on the merits of the case. It would be laying down a very dangerous principle in the conduct of human affairs if the courts of law would allow to be flooded with the petition based on concealed facts or false averments. It would be laying down a very dangerous principle in the conduct of human affairs if the courts of law would allow to be flooded with the petition based on concealed facts or false averments. This Court in its extraordinary equitable jurisdiction can help only to those persons who approach the Court with clean hands, and in a case where the Court finds that the conduct of the petitioner is not honest and free from deceit it is perfectly legally justified, to decline to give any relief to the petitioner. A person who adopts dubious means in the Court must suffer the consequences of his conduct. 38. The law is well settled that the petitioner is not entitled as a matter of course to a writ of certiorari and mandamus. He must be perfectly frank and open to the Court. He has an obligation to the Court to make full and correct disclosure as all the material facts in a candid manner and if he does not do so and suppress any material fact and thereby obtain a rule nisi or notice or ex parte ad interim relief, the Court will not grant any relief to them on merits. 39. In Asiatic Engineering Co. v. Achhru Ram, reported in AIR 1951 All. 746 , the Full Bench of the Allahabad High Court while dealing with obtaining of ad interim ex parte stay order suppressing of the facts, has held that a person obtaining an ex parte order or a rule by means of a petition for exercise of the extraordinary powers under Article 226 of the Constitution must come with clean hands, must not suppress any relevant facts, must refrain from making misleading statements and from giving incorrect information to the Court. The Court should insist that persons invoking extraordinary jurisdiction of the Court should not attempt in any manner to misuse a valuable right by obtaining ex parte orders by suppression, misrepresentation or misstatement of facts. It is further said in this case if the facts are stated in such a way as to mislead and deceive the Court there is a power inherent in the Court. in order to protect itself and to prevent an abuse of its process, to discharge the interim order and to refuse to proceed further with the examination of the merits of the application. 40. in order to protect itself and to prevent an abuse of its process, to discharge the interim order and to refuse to proceed further with the examination of the merits of the application. 40. In K.K. Anathan Pillai v. State of Kerala, AIR 1968 Kerala 234 : 1968 LabIC 1059 (FB) , it is laid down that a petitioner resorting to suppression vari and suggestion falsi, obtains ex parte stay order should not be given any relief in a Writ Petition under Article 226 of the Constitution. It has been said in this case that the petitioner's conduct is a relevant factor in the matter of invoking an extraordinary equitable jurisdiction of the High Court. The Court said further that whatever sympathy one might feel on merits, where the petitioner is guilty of suppression vari and suggestion falsi he disentitled himself to invoke extraordinary jurisdiction of the High Court. 41. In Nandlal v. State of Jammu and Kashmir, AIR 1960 J&K 19 , it is held that where the petitioner under Article 226 of the Constitution has not stated the relevant facts correctly and candidly either in the petition or in the affidavit in support of his petition this by itself sufficient to entail the outright dismissal of the writ petition without going in to its merits, the High Court of Jammu Kashmir has further said even if the petitioner has a good case on merits, the Court will be entitled to decline to go in the merits and dismiss the petition because the conduct of the petitioner has been such as to mislead the Court in ex parte injunction order. In this case the High Court referred to the leading authority of Rex v. Kensighton Income Tax Commissioner, (1917) 1 KB 486 and the relevant extract from the observation of Cozens Hardy M. R. quoted as follows:- "On an ex parte application uberrima fides is required and unless that can be established if there is anything like deception practise on the Court, the Court ought not to go in to the merits of the case but simply say that we will not listen to your application because of what you have done. 42. 42. In that very case Lord Scrutton L. J. put the matter very clearly by saying as under:- "It has been for many years the rule of the Court and one which it is of the greatest importance to maintain that when any appliant comes to the Court to obtain interim relief on an ex parte submission he should make a full and fair disclosure of all the material facts, not law. The applicant must state fully and fairly the facts and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any which it has taken on the faith of the imperfect statement". 43. In that case aforesaid though the Court had found that the Income Tax Commissioner had no jurisdiction to make assessment yet it said:- "We refuse the rule of profession without going into the merits of the case on the ground of conduct of the applicant in bringing the case before us." 44. This authority of the King Bench has also been followed by the Full Bench of the Allahabad High Court in the case of Asiatic Co. AIR 1951 Allahabad 746 (supra). Lord Haterly in R. v. Church Wardens of All Saints Wigan (1876) 1 AC 611 stated:- "Upon a prerogative writ there may arise many matters of discretion which may induce the Judges to withhold the grant of its matters connected with delay or possibly with the conduct of the parties." 45. Reference may also have to the case of Reg. v. Gerland, 1870 (39) LJQB 86 in which it was held:- "Where a process is exdebite that Court would refuse to exercise its discretion in favour of the applicant where he is found to be wanting in bonafide". 46. In the case of T. Subramania Chettiar v. District Supply Officer, AIR 1995 Madras 54 , the Court in dealing with somewhat similar point held:- "Any way, it is clear that the petitioners have suppressed in the supporting affidavit this particular fact, namely that the payment of renewal fee and the application for registration certificate were out of time. In all fairness, the petitioners in their supporting affidavit should have mention about of this fact, but deliberately have suppressed the above said material fact. In all fairness, the petitioners in their supporting affidavit should have mention about of this fact, but deliberately have suppressed the above said material fact. On this ground also, this writ petition is liable to be dismissed". 47. Again the Madras High Court in the case of Kamashi v. A. Radhakrishnan, reported in AIR 1995 Madras 60 , observed as follows:- "When the extraordinary jurisdiction of this court under Article 226 of the Constitution of India is invoked, the person who does so must take the court into confidence and place all the facts before it without any reservation. If the court finds that the petitioners have not stated the full truth in the relevant matters, it shall refuse to exercise its discretion in favour of the petitioners." 48. The Apex Court in the case of Ramjas Foundation v. Union of India, 1993 Supp (2) SCC 20 : AIR 1993 SC 852 , in para No. 7 observed:- "It is well settled that a person invoking an equitable extraordinary jurisdiction of the court under Article 226 of the Constitution is required to come with clean hands and should not conceal material facts. The objection regarding not affording an opportunity of personal hearing in respect of objections filed under Section 5-A of the Act was one of the main planks of the grounds raised in the writ petition as well as in the special leave petition filed before this Court and ought we know if such ground had not been taken this court would have entertained this appeal or not." 49. Reference may have to another decision of the Apex Court in the case of Agricultural and Processed Food Products v. Oswal Agro Furane, 1996 (4) SCC 297 : AIR 1996 SC 1947 , where in the Hon'ble Court in para No. 29 of the judgment observed thus:- "The facts as stated here-in-above, on the other hand, show that the High Court ought not to have exercised its jurisdiction under Article 226 of the Constitution of India, for more than one reason and, therefore, it would be incumbent upon this Court to interfere under Article 136 of the Constitution and not to allow Oswal Agro to take advantage of an obviously wrong decision of the High Court. Firstly High Court misconstrued Clause 15(j) of the order and held that because Oswal Agro was an export oriented unit, therefore, it could export any item manufactured by it, which conclusion is wholly incorrect. Secondly the High Court not to have entertained the writ petition because of Oswal Agro's conduct. If had filed an earlier writ petition in the Punjab and Haryana High Court dealing with the same issue, namely, its obligation and right to export its products under the licence and in terms of the Export (Control) Order. It is possible that the Delhi High Court may not be aware of the pendency of the writ petition in the Punjab and Haryana High Court, regarding the export of edible rice bran oil, because there in no reference to the filing of the said case in the writ petition filed in the Delhi High Court. Oswal Agro is guilty of suppression of this very important fact. It was contended in the Punjab and Haryana High Court that it was under no obligation to export the edible rice bran oil and its only obligation was to export furfural while, in the writ petition filed in the Delhi High Court, a somewhat contrary contention was raised, namely, that being an export oriented unit, it was entitled to export non-basmati rice, in addition to furfural. Had Oswal Agro indicated in writ petition filed in the Delhi High Court that it had also filed a petition in the Punjab and Haryana High Court which still pending, relating to export of edible rice bran oil, then the Delhi High Court most probably would not have entertained the petition because the proper course which should have been followed by Oswal Agro was to raise this contention, regarding export of non-basmati rice, in the writ petition filed in the Punjab and Haryana High Court or to file a new petition there." 50. In the case of National Insurance Co. Ltd. v. Satima Cold Storage (P) Ltd., (1998) 8 SCC 181 : AIR 1999 SC 2624 their Lordships of Hon'ble Supreme Court held:- "In the counter affidavit the basis for making the statement is not disclosed and the rejoinder affidavit is equally silent on that issue. The matter is rather serious. In the case of National Insurance Co. Ltd. v. Satima Cold Storage (P) Ltd., (1998) 8 SCC 181 : AIR 1999 SC 2624 their Lordships of Hon'ble Supreme Court held:- "In the counter affidavit the basis for making the statement is not disclosed and the rejoinder affidavit is equally silent on that issue. The matter is rather serious. If a concession had been made by a senior counsel and he had not pressed the application for transfer of the case in the High Court then the filing of the special leave petition in this Court without disclosing that fact would amount to suppression of facts, not entitling the petitioners to any discretionary relief under Article 136 of the Constitution of India, and on the other hand, if no concession was made, the very ground on which the application is resisted by respondent, I would fall flat and respondent 1 would be guilty of misleading the Court. 51. It is a developing tendency amongst employees/officers of the Government, Central or State, statutory bodies, Boards or Corporations or Corporation/Boards owned or controlled by Central or State Government after entry into service to make all efforts to get extension of service by praying for correction of their recorded dated of birth. 52. Here in this case question regarding correctness of the date of birth as entered in the service record has been raised by the appellant in the Court at a very belated stage i.e. at the fag end of his service. He is to retire as per his recorded date of birth in the service book on 30-4-1994 afternoon and the petition is filed on 29-4-1994. From the averments made by the appellant in the writ petition we find that he raised this dispute on 17-4-1988 i.e. after more than 31 years of his entry in the service. It is though stated that he made the representation from the year 1966 but he has not produced any evidence in support of this factual averment. The first representation which has been made by his and admitted by the respondent is of 17-12-1988. This belated claim raised by the appellant otherwise also could not have been entertained by the respondents. 53. Be that as it may the appellant has not taken action in the matter except filing of representation with the respondents. The first representation which has been made by his and admitted by the respondent is of 17-12-1988. This belated claim raised by the appellant otherwise also could not have been entertained by the respondents. 53. Be that as it may the appellant has not taken action in the matter except filing of representation with the respondents. He could not have taken any action in the matter in the Court as on 29th March, 1989 after his representation, he himself has disclosed, admitted and accepted his date of birth to be 16-4-1937. This is clearly borne out from the Court document No. 1 which is the appellant's own declaration made in connection with employees general provident fund. Whatever grievance made in the representation dated 17th December 1988 is nothing but concocted and manufactured. That grievance comes to any end on the basis of the appellant's own document i.e. this declaration and nomination form aforestated. 54. The reference may have also to the seniority lists which have been published from time to time and the appellant had not raised any objection against entries made therein regarding his date of birth. Only in the year 1992 he raised this objection against this entry and praying for correction thereof on the basis of the document Annexure-2 filed along with the writ petition. The matter has been considered by the respondents and this claim of the petitioner has not been accepted. Though at a belated stage and more so when earlier this date of birth shown in the documents of the Board has not challenged by the appellant, it was not incumbent upon or obligatory on the part of the respondents to decide this dispute raised but they acted fairly, reasonably and inconsonance with the principle of natural justice and fair play and decided the matter. It is not the case of the appellant that there is any arithmetical mistake or typographical error apparent on record. In this case on the basis of a document procured at latter stage he is praying for change of his recorded date of birth. It is a case where the controversy over the recorded date of birth has been raised by the appellant long after joining of service, still the matter has been considered and decided by the respondents. 55. In this case on the basis of a document procured at latter stage he is praying for change of his recorded date of birth. It is a case where the controversy over the recorded date of birth has been raised by the appellant long after joining of service, still the matter has been considered and decided by the respondents. 55. The appellant prayed for or claimed correction in his recorded date of birth in the service record on the basis of document Annexure-2, a school leaving certificate. Whether this certificate produced by the appellant showing his date of birth different from that entered in his service record is acceptable or not is purely a question of fact. This Court sitting under Article 226 of the Constitution of India cannot undertaken an enquiry into such disputed question of fact. The learned Single Judge has rightly, where it is not the case of arithmetical mistake or typographical error apparent on the face of record, declined to interfere in the matter. Core question is whether the certificate Annexure-2 subsequently obtained by the appellant should be accepted or not and the date of birth of the appellant entered therein should be taken to be conclusive evidence. This question is essentially one of fact and determination of which requires detailed enquiry into relevant factual matters. Whether this certificate produced is authenticated, true and correct or certified copy of the original record or not is a question which is also needs to be considered. Another aspect would have been that this certificate is not forged and lastly is acceptable evidence of a clinching nature. The other relevant aspects to be considered in such matter is whether the certificate has been issued by an authority competent to issue the same under the statute or rules, whether the authority issuing the certificate is required under the statute or rules to enquire into question of the date of birth of the person before issuing the same and or such enquiry the authority is found his date of birth to be entered in the certificate or the entry has been made merely on the disclosure made by the holder of the certificate. In the former case some sanctity may be attached to the entry that is of the date of birth in the certificate though it is not conclusive. 56. In the former case some sanctity may be attached to the entry that is of the date of birth in the certificate though it is not conclusive. 56. Here is the case where the certificate, a document purported to have been issued by the Headmaster of the school in which the appellant alleged to have studied. The document Annexure-2 is a xerox copy. It does not bear any date of issue thereof. It is not being a certified or attested true copy of the original, how it can be taken to be a document admissible in evidence. It is admittedly a document from scholar register of the school and the certified or attested copy thereof would have been with the appellant. It is a certificate which is to be countersigned by the competent authority that is also not there. Be that as it may be as it is not a certified or attested true copy it could not have been taken and read in evidence.In the affidavit in support of the petition it is stated that document School Annexure-2 is a true and exact copy of the original which is factually incorrect. In case it is a true and exact copy of the original it should have been xerox copy of the scholar register and not a certificate. It is a school leaving certificate and entries are to be made therein on the basis of scholar register and that can only be in the form of a certified copy of attested true copy issued under the signatures of the Headmaster and countersigned by the competent authority. As it is not a certified or attested true copy of the scholar register. It has no evidentiary value what to say to take it to be an acceptable evidence of a clinching nature. The appellant studied in the school as what he stated then what for this document is not produced at the time of entry in the service or immediately thereafter. These are some of the questions answer of which will depend on the evidence either oral or documentary to be placed by the parties and this Court in the writ petition is not an appropriate forum for undertaking such an enquiry into disputed question of facts. 57. These are some of the questions answer of which will depend on the evidence either oral or documentary to be placed by the parties and this Court in the writ petition is not an appropriate forum for undertaking such an enquiry into disputed question of facts. 57. Leaving apart of these questions of concealment of fact, the claim has been made at a belated stage, the petition has been filed at the fag end of service, the appellant's own declaration of date of birth and the matter has already been decided by the respondents, otherwise also no relief can be granted to the appellant on the basis of document Annexure-2. 58. The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends on the quantum of retiral benefits he would be entitled. Therefore while determining the dispute in such matters the Court to bear in mind that a change of the date of birth long after joining service particularly when the employee is retiring shortly when abruptly prayed for change of recorded date of birth in the service book in the due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of clinching nature. The appellant has failed to discharge this burden. The document Annexure-2 is not the evidence which can be accepted. First, as said earlier, it is not a certified or attested true copy; secondly, it is not produced at the relevant time, thirdly, having a glance at this document the possibility of forging this document cannot be excluded. 59. When a person seeks employment he agrees with the terms and conditions on which same is offered. For every post in the service of the Corporation which is an instrumentality of the State there is minimum age of entry prescribed depending on the functional requirement of the post. The learned counsel for the appellant does not dispute this aspect. In order to verify that the person concerned is not below the prescribed age he is required to disclose his date of birth. The learned counsel for the appellant does not dispute this aspect. In order to verify that the person concerned is not below the prescribed age he is required to disclose his date of birth. It is ordinarily assumed, presumed and accepted that the date of birth disclosed by the incumbent is accurate. The situation then is that the incumbent gives date of birth and the employer has accepted it as true and accurate before it is entered in the service record. 60. The appellant's date of birth is taken to be 1st of October, 1942 then he would have been of 14 and a half years of age when he joined the service. It is not the case of the appellant in the writ petition nor it is contended by the learned counsel for the appellant before us nor has produced any material to show that the minimum age for entry in the service of the Board at the relevant time was less than 15 years. Where material is available on record that the Board was legally permitted to employ a minor in service this date of birth what appellant is claiming, is not correct. Thus there are all the possibilities as said earlier of forging this document to take the advantage of extension of service. 61. Even where it is taken to be a correct document this conduct of the appellant to conceal his true date of birth and manipulated his entry in Board's services by disclosing incorrect date of birth disentitles him from seeking any relief from high court under its extraordinary equitable jurisdiction. 62. Not only this otherwise also no relief can be granted to the appellant under Article 226 of the Constitution of India on the ground of acquiescence or estoppel. The appellant has taken the benefit of this date of birth at the time of entry in service otherwise would not have been eligible for the appointment. For all the service purposes this date of birth is to be taken his correct date of birth. In these facts this claim of correction of the date of birth made by the appellant is fraudulent or an attempt to cheat the employer. Not only this, but it is a case where the appellant has made attempt to abuse the process of court also. In these facts this claim of correction of the date of birth made by the appellant is fraudulent or an attempt to cheat the employer. Not only this, but it is a case where the appellant has made attempt to abuse the process of court also. Thus on merits also this claim of the appellant for correction of the date of birth recorded in the service book is not tenable. 63. Now we advert to the last contention raised by the learned counsel for the appellant. 64. The learned Single Judge has not granted any interim relief in favour of the appellant. The appellant retired from the service on 30-4-1994 in the afternoon. This interim relief granted in the appeal on 21st of April, 1995 i.e. almost after one year of the retirement. 65. Provisions of Order 39 of the CPC, 1908 may not be applicable to the proceedings under Article 226 of the Constitution of India but at the same time various principles laid down under that order for granting ad interim injunction or interim relief are to be taken into consideration. In the case of Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225 : 1994 AIR SCW 2801 their Lordships of the Hon'ble Supreme Court laid down the guiding principles to grant of ad interim injunction which are as under - "(4) As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are - (a) whether irreparable or serious mischief will ensure to the plaintiff; (b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve; (c) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction. Thus their Lordships of the Hon'ble Supreme Court have not appreciated this practice of the Courts to permit the employees/officers of the Government or the statutory Boards of Corporations etc. in the service beyond the age of superannuation reached on the basis of their recorded date of birth then dispute raised for correct thereof. Thus their Lordships of the Hon'ble Supreme Court have not appreciated this practice of the Courts to permit the employees/officers of the Government or the statutory Boards of Corporations etc. in the service beyond the age of superannuation reached on the basis of their recorded date of birth then dispute raised for correct thereof. (e) The Court would expect a party applying for ex parte injunction to show utmost good faith in making the application; (f) Even if granted, the ex parte injunction would be for a limited period of time; (g) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the Court." 66. In the case of Secretary and Commissioner, Home Department v. R. Kirubakaran, 1994 Supp (1) SCC 155 : AIR 1993 SC 2647 their Lordships of the Hon'ble Supreme Court indicated the approach to be made by the Tribunal or the High Court in a dispute regarding correction of the date of birth. The Court held:- "An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. 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. 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 a 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 material which make such claim only plausible. Before any such direction is issued, the Court or the tribunal 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 the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within the time, which can be held to be reasonable. The applicant has such claim, which may amount to (sic) birth. If no rule or order has been framed or made, prescribing the period within the time, which can be held to be reasonable. The applicant has such claim, which may amount to (sic) birth. Whenever any such question arises, the onus is on the applicant. to prove the wrong recording of his date of birth, in his service book." 67. In the case of G.M., Bharat Coking Coal Limited v. Shib Kumar Dushad, (2000) 8 SCC 696 : 2001 LabIC 28 it is held:- "The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should be in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In the ease that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. In a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the Courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the Court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialize, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior." 68. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialize, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior." 68. Their Lordships of the Hon'ble Supreme Court time and again gave a word of caution that the High Court ought not to grant relief which can only be granted at the time of final decision. For this reference may have to the following decisions:- 1) Council for Indian School Certificate Examination v. Isha Mittal, (2000) 7 SCC 521 2) State of U.P. v. Visheshwar, 1995 Supp. (3) SCC 590 3) Bank of Maharashtra v. Race Shipping & Transport Co. Private Limited, (1995) 3 SCC 257 : AIR 1995 SC 1368 4) Bharatbhushan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa, 1995 Supp. (2) SCC 593 5) Shiv Shankar v. Board of Directors, U.P.S.R.T.C., 1995 Supp. (2) SCC 726 6) Commissioner/Secretary to Government Health & Medical Education Department Civil Secretariat, Jammu v. Dr. Ashok Kumar Kohli, 1995 Supp. (4) SCC 214 . 69. In one case which has arisen from the judgment of the Central Administrative Tribunal, their Lordships of the Hon'ble Supreme Court held that in such matters there is no question of grant of temporary injunction or interim relief as non-grant thereof will not result in causing any irreparable injury which cannot be compensated in terms of money to the concerned employee. In case ultimately in the dispute the employee/officer succeeds and the court or the Tribunal accept the date of birth what he is claiming to be correct, all consequential benefits follows therefrom can be granted in his favour, he can be granted all service benefits without working. However, grant of temporary injunction/interim relief or stay in such disputes raised and pending thereof by the Court may adversely affect the right of the employees or the Officers in the department or the establishment who are waiting for their promotion or where the post is to be filled in by direct recruitment the unemployed persons shall be deprived of their employment. The employee and the Officer who has been deprived of the promotion or a candidate who could not be appointed by direct recruitment as under the interim order in the matter re dispute for correction of the date of birth that employee/officer continued in service on the dismissal of the matter they cannot be compensated in any manner. As a result of non-promotion or non-appointment the aspirant of the same will suffer till he remained on the post i.e. they will be deprived of promotion and ultimately higher retiral benefits. 70. The temporary injunction or interim relief or interim stay cannot be granted until the court is satisfied, a litigant is praying for the same has made out a prima facie case in his favour, that non-grant thereof will result in causing of irreparable injury to him which cannot be compensated in terms of money and balance of convenience also favours grant thereof. All these three ingredients are to be established to the satisfaction of the Court and then only the Court may grant temporary injunction or interim relief or interim stay. In such matters on the basis of the recorded date of birth an employee or the Officer is to retire from the services and on his succeeding in the matter in the Court or Tribunal he can be granted all the benefits. Thus, the alleged pre-mature retirement of the appellant is looked into and considered from this aspect, it will not result in immediate causing of any injury to him. He will get his retiral benefits may be less than what he would have in case his claim for correction of the date of birth is accepted. In the case of State of Haryana v. Suman, 2000 (10) SCC 311 (supra), their Lordships have not considered there that to be a fit case for grant of temporary injunction or interim relief. That was a case of termination of services meaning thereby the employee will not get anything but here in the case of correction of date of birth pending decision thereon the employee or Officer will get all retiral benefits. His case is on much lower footings then the case of an employee or officer whose services have been terminated. That was a case of termination of services meaning thereby the employee will not get anything but here in the case of correction of date of birth pending decision thereon the employee or Officer will get all retiral benefits. His case is on much lower footings then the case of an employee or officer whose services have been terminated. But when in latter case the Hon'ble Supreme Court has not considered it to be a fit case for grant of interim relief or stay how far it is justified for the Court or tribunal to grant the interim relief or temporary injunction in the dispute re correction of the date of birth raised by the employee or the Officer. 71. Leaving apart this, interim relief has not been granted in this matter by the learned Single Judge and after one year of the order there may not be any necessity or need for grant of any temporary injunction/interim relief or interim stay in the matter. 72. The claim of the appellant for correction of his date of birth on merits is not acceptable, but he continued in the service beyond his age of superannuation calculated on the basis of his recorded date of birth under the order of this Court. He was ordered to be given the retiral benefits admissible to him by taking his date of birth as 16th of April, 1937 by the court under its order dated 24-11-2000. 73. The question which falls for consideration is whether the appellant cannot be permitted to retain the benefits he got or received from the respondents working beyond his date of superannuation under the interim relief granted in his favour on 21-4-1995. Mere passing of an order of interim stay cannot be presumed to be the confirmation of any additional right upon the litigating party. A party applies and obtains a stay from the Court of law, it is always at his own risk and responsibility. Interim relief granted is subject to final order to be passed in the matter. The interim order/interim relief granted merges in the final order in the case passed and on dismissal thereof, it automatically stands dismissed or cancelled. It is permissible to the Court at a final stage to correct or repair damage caused by the interim order to the other side. The interim order/interim relief granted merges in the final order in the case passed and on dismissal thereof, it automatically stands dismissed or cancelled. It is permissible to the Court at a final stage to correct or repair damage caused by the interim order to the other side. It is also a well known principle of law that no one is allowed to suffer for the act of the Court. As this appeal is to be dismissed on merits, the order dated 21-4-1995 merges in the final order and whatsoever benefits which the appellant got while working on the post under that order cannot be permitted to be retained by him. But for this interim order he could not have continued in service. 74. It is true that he worked on the post but we cannot be oblivious of the fact that it was under the Court's order and not as of his right. When the Court granted stay, naturally the other side has no option except to honour the same and continued the appellant in the service till he attains the age of superannuation on the basis of his alleged date of birth. 75. It is a case where the appellant got the benefits for which otherwise he is not entitled. In case on this principle that he worked on the post he is allowed to retain these benefits it is a public loss and against the public interest and policy. 76. Not only this it will result in unjust enrichment of the appellant only on this fortuitous circumstances that in his case interim relief is granted. In case, on this consideration what it is presented and placed, the appellant is permitted to retain all these benefits for which he otherwise was not legally entitled it is against the basic principle of fair play as well as direct loss to the public account as the Board is the instrumentality of the State. This interim order/interim relief or the interim stay granted is always subject to final outcome in the matter and when on merits he has no case, the appeal is to be dismissed, he is not legally entitled to retain all these benefits which he got in pursuance of that order. This interim order/interim relief or the interim stay granted is always subject to final outcome in the matter and when on merits he has no case, the appeal is to be dismissed, he is not legally entitled to retain all these benefits which he got in pursuance of that order. In case what it is prayed for and granted the appellant shall get the benefit of extension of service for which otherwise it would not have been permissible for him. 77. The matter can yet be considered and examined from another aspect. The interim relief granted cannot go beyond the final relief ultimately granted to the appellant in the matter. On success of the appellant he could have got all these benefits but on his failure how these benefits could have been permitted to retain by him. The interim relief granted in a lis is subject to inbuilt condition that on the dismissal of the matter finally whatever benefits a litigant got under that order is to be restored to the other side. At the cost of repetition it is to be stated that the respondent Board is the instrumentality of the State. It concerns with the public interest and if the appellant is permitted to retain these benefits, it is directly loss to the public. 78. The matter can be looked into from another angle. In case the appellant is permitted to retain these benefits there is all the possibility a discrimination is made by the Court under its judicial process of making order. There are cases after cases where the Court would not have granted interim order or stay in the matters re-correction of date of birth. In those cases the petitioners therein will not get any benefits on dismissal of the writ petition or appeal. Here in this case due to this interim relief granted the appellant got the benefits so considering this matter from this aspect the appellant is not entitled to retain these benefits. 79. As a result of the aforesaid discussion this appeal fails and the same is dismissed with costs which is quantified to Rs. 5,000/- (five thousand only). Here in this case due to this interim relief granted the appellant got the benefits so considering this matter from this aspect the appellant is not entitled to retain these benefits. 79. As a result of the aforesaid discussion this appeal fails and the same is dismissed with costs which is quantified to Rs. 5,000/- (five thousand only). The appellant is directed to refund the amount of the salary, allowances, perks and other benefits which he received during this period he worked with the Board under the Court's order, within a period of two months from the date of receipt of a copy of this order. Where the appellant has any genuine, bonafide and real (sic) difficult to make the payment of this amount at one time, he is free to apply by filing a simple note and as and when such a note is filed the registry is directed to circulate it. The Court then will consider the matter of grant of permission to deposit this amount in reasonable instalments.Appeal dismissed.