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Allahabad High Court · body

2003 DIGILAW 209 (ALL)

SHANTI DEVI v. STATE OF U P

2003-01-30

R.B.MISRA

body2003
R. B. MISRA, J. Heard Sri Amit Singh holding brief of Sri Dev Raj learned Counsel for the petitioner as well as Sri Raj Kumar and Sri Deepak Sharma learned Counsel for the respondents. 2. It appears that the petitioner was appointed as a Class IV employee (Dai) in the department of Medical Health and Family Planning and the petitioner is not a High School pass, however his date of birth entered as 18th February, 1935 in the service book was verified time and again by the authorities concerned and the age of retirement of the petitioner an employee of Class IV category as 60 years. The petitioner was to be retired on 18th February, 1995. For the reasons unknown on 3rd April, 1991 the Medical Officer of Primary Health Centre Chandak, District Bijnor has asked the petitioner to give a proof of her date of birth and the petitioner was required to be examined by the Chief Medical Officer. Consequent upon the examination,the Chief Medical Officer, Bijnor estimated age of the petitioner on 3-4-1991 as about 60 years. Taking into consideration of this medical certificate the petitioner was made to retire on 30th April, 1991. At subsequent stage out of wisdom, on the representation and undertaking (Annexure-4) of the petitioner, the petitioner was taken back into the service on 27-5-1994 in reference to her undertaking that she had not worked for 22 months, therefore, she will not claim now and in future the salary for that period on the ground of ethics. 3. Subsequently the petitioner claimed for her salary for the period from 1-5-1991 to 26-5-1994 with interest. According to Annexure-3 of the writ petition a letter dated 22nd September, 1992 was written from Deputy Director, Medical Health to the Director General of Medical Health and Family Welfare, Uttar Pradesh narrating the entire facts and circumstances of the case and also indicating that the date of birth once entered in the service book and verified by the officials from time and again could not be altered and as such the retirement of the petitioner was not legal, therefore, Deputy Director by his above letter expected to do justice to the petitioner. 4. 4. The contents of paragraphs of the counter-affidavit have not been substantially denied rather it was indicated only that the Chief Medical Officer has physically examined and assessed the age of the petitioner on 3-4-1991 as about 60 years and on that basis only the petitioner was made to retire. All the aspects of the counter-affidavit had been controverted in detail in the rejoinder-affidavit in addition the averments and contentions of the writ petition have been reiterated. According to paragraph 2 of the rejoinder-affidavit the petitioner was retired from the service illegally ignoring her date of birth recorded in service book and in derogation to the provisions of "u. P. Recruitment in Service (Determination Date of Birth) Rules, 1974 "as amended in the year 1980 whereby the date of birth entered into service record shall be taken as true date of birth. All the Government servants, those who had not passed High School Examination will retire on the last date of the month in which they complete their age of superannuation and as the petitioner was Class IV employee in view of amended Fundamental Rule 56 (Financial Hand Book) Vol. II, Part 2 to 4 the date of birth as recorded in service book the date of superannuation was 28th February, 1995. 5. In (2003)1 UPLBEC 280 , Bimlesh Sharma v. Electricity Board, Office of Chief Engineer, U. P. Rajya Vidyut Parishad, Moradabad and others, where date of birth entered in the service book was to be changed by the deceased employee wife when the husband of the writ petitioner had died after retirement by disputing the change of date of birth. This Court has held disputed question of fact cannot be investigated in the writ petition and the date of birth once entered in the service book of the petitioner under U. P. Recruitment to Service (Determination of Date of Birth) Rules, 1974, was treated to be correct supported by the relevant documents and supporting entires in the service book and the change of the date of birth disputing the same on the basis of fitness certificate were not treated to be relevant proof of age and such controversy and disputed question of fact could not be resolved by investigating the authenticity of the documents relied upon by the parties concerned in the writ proceedings. 6. 6. In the case of of Adhishashi Abhiyanta, Electricity Board, Rihand and Hydel Civil Division U. P. State Electricity Board, Allahabad and another v. Shitla Prasad and another, Special Appeal No. 383 of 1989, decided on 17-9-1993, a Division Bench of this Court has held that: ". . . . . In our opinion, the medical fitness certificate dated 25-7-1974 could not be treated an opinion of the Doctor regarding the age of the petitioner. The certificate has been given in the proforma prescribed under Fundamental Rules 10. The Doctor had examined the petitioner in order to ascertain as to whether he suffered from any communicable disease or otherwise and whether he had any constitutional weakness or bodily infirmity which would constitute disqualification for employment in the Hydel department. The doctor was not asked or required to give an opinion regarding the age of the petitioner. There are well know scientific methods to ascertain the age of a person and ossification of bone gives a fairly accurate idea regarding the age. However, for this purpose X-ray examination has to be performed in case of doctor had been asked to give his opinion regarding the age of the petitioner he would have performed necessary tests including X-ray examination etc. and would have also given the scientific date on the basis of which he would have formed his opinion about the age. The doctor while giving opinion about the age of a persons is if the. . . . . Nature of the an expert and in absence of necessary scientific date. . . . . weight in view of Section 45 of Evidence Act. We are clearly of the opinion that the medical fitness certificate dated 25-7-1994, could not at all be treated as an opinion of the doctor regarding the age of the petitioner. As a consequence the said document could not be used for the purpose of determining his age. " 7. In the case of Burn Standard Co. We are clearly of the opinion that the medical fitness certificate dated 25-7-1994, could not at all be treated as an opinion of the doctor regarding the age of the petitioner. As a consequence the said document could not be used for the purpose of determining his age. " 7. In the case of Burn Standard Co. Ltd. v. Dinabandhu Majumdar, AIR 1995 Supreme Court 1499; 1995 (4) SCC 172 , it was held that the employee of a public sector undertaking whose date of birth was entered in service book and leave record on the basis of the voluntary declaration made by the employee at the time of appointment and authenticated by him was never objected to up to the fag end of service, thereafter he sought for correction of date of birth about two years before his superannuation, when his prayer was refused, he moved the High Court in the writ petition, where relief was granted in his favour, however, the Supreme Court in appeal by special leave has held that ordinarily the High Court should not exercise its discretionary in writ jurisdiction and entertain a writ petition filed by an employee of the Government or any instrumentality of State towards the fag end of his service seeking correction of his date of birth entered in his service record or service register with the avowed object of continuing in service beyond the consequential period of retirement. The Supreme Court has pointed out when an employer of the Government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct all of a sudden comes forward towards the fag-end of his service career with writ petition before the High Court seeking correction of date of birth in his service record, the very conduct of not raising any objection in the matter by the employee for long should be a sufficient reason for the High Court not to entertain such application on the ground of acquiescence undue delay and laches. 8. In the case of State of Orissa and others v. Ramnath Patnaik, AIR 1997 Supreme Court 2452, the Supreme Court has observed in para 4. 8. In the case of State of Orissa and others v. Ramnath Patnaik, AIR 1997 Supreme Court 2452, the Supreme Court has observed in para 4. "when entry was made in service record and when he was in service, he did not make any attempt to have the service record corrected, therefore, any amount of evidence produced subsequently would be of no avail. . . . " 9. In the case of Hindustan Lever Limited v. S. M. Jadhav and another, 2001 (2) ESC 338 (SC), Supreme Court, has elaborated its earlier view and held that "an employee cannot be allowed to raise, at the fag end of the career, dispute regarding correction of his date of birth. " 10. In another case State of Orissa and others v. Ramnath Patnaik, 1997 Alld. Civil Law Journal 1149, the Supreme Court has held that "an employee cannot be permitted to seek correction of his date of birth after his retirement. " 11. In the case of General Manager, Bhawani Cooking Coal Limited, West Bengal v. Shib Kumar Dushad and others, 2001 (1) ESC 41 (SC), the Supreme Court has held that "no dispute regarding correction of date of birth shall be permitted to be raised after long time his joining service unless it is based on some typographical or arithmetical error and the Court refused to interfere in such matter. " 12. In the matter of dispute regarding date of birth, the Government may choose one of the suggested date of birth given by the employee if some preliminary inquiry is made to resolve the controversy of the date of birth and Inquiry Officer holds the preliminary inquiry does not disclose to the person concerned and the decision arrived thereunder was treated to be contrary to the basis of justice and can have no value and shall be treated against the rules of natural justice has to accept one date of birth out of the claims by the employee on the basis of the inquiry report, such inquiry report should be passed on after informing the person concerned and after taking into the evidence in support thereof and after providing opportunity to the persons concerned as held in the State of Orissa v. Dr. Miss Binapani Dei, AIR 1967 SC 1269 . 13. Miss Binapani Dei, AIR 1967 SC 1269 . 13. In Bhupendra Nath Chatterjee v. State of Bihar, AIR 1977 SC 746 , it was held that the date of birth recorded in service record is to govern the date of superannuation of the person from service. 14. In the matter of correction of date of birth an application for that purpose is to be filed, according to the procedure prescribed within the time under rules or if no rule is prescribed, such application should be made within reasonable time. The Supreme Court has held that no interim order on application for correction of the date of birth should be passed by the Tribunal or the High Court keeping in view only the public service, directing the employee to be continuing in service unless there are cogent and conclusive materials produced by the employee that the date of birth recorded in the service record was not correct. The onus is heavy on the employee to prove the authenticity of the date of birth claimed for, it was therefore, held that the Court or Tribunal shall be slow in granting such interim relief unless the claim is supported by prima facie evidence of unimpeachable character, as observed in Secretary- cum-Commissioner, Home Department v. R. Kirubakaram, AIR 1993 SC 2647 : 1994 Supp (1) SCC 155. 15. The application for correction of date of birth as recorded in the service book are not permitted to be corrected by ordinate delay as held in Union of India v. Kantilal Hematram Pandiya, (1995)3 SCC 17 . 16. In another case when long delay was made in seeking the correction of date of birth and the application having been filed beyond the statutory time limit (three years) it was held by the Supreme Court that competent authority may reject such application and the plea of the employee that the alleged mistake was discovered at about the time when he filed the application for date of birth which was about 40 years of the date of joining the service cannot be accepted as correct. Chief Medical Officer v. Khadeer Khadri, AIR 1995 SC 850 : (1995)2 SCC 82 . 17. Chief Medical Officer v. Khadeer Khadri, AIR 1995 SC 850 : (1995)2 SCC 82 . 17. In Union of India v. Ram Suia Sharma 16, (1996)7 SCC 421 , the Supreme Court has again reiterated that the claim for correction of the recorded date of birth made 25 years of joining in the service could not have been entertained by the Central Administrative Tribunal and the Tribunals direction allowing such a claim as per se illegal and that due to long delay and laches, such a claim should not have been entertained by the Tribunal. 18. In respect of condition precedent for correction of date of birth the Supreme Court held the employee seeking the correction of the date of birth must show that the recorded date of birth was made due to negligence of some other person or that the same was an obvious clerical error and that where the employee fails to do so, such relief for correction of date of birth should not be granted by the Administrative Tribunal. In that case, the extract from the birth register was produced, subsequently to the recording of date of birth on the basis of the school leaving certificate. The authority refused to correct the date of birth in the service on the basis of such extract. It is held by Supreme Court that in the absence of any material to show that the entry in the school leaving certificate was incorrect, the authority rightly refused to correct the date of birth, more so when the extract from the birth register even otherwise was found to be doubtful. Commissioner of Police, Bombay v. Bhagaban V. Lahane, AIR 1997 SC 1986 . 19. The respondent applied for correction of date of birth before the appointing authority on obtaining a decree from Civil Court in a civil suit filed by the respondent against the Board/university for correction of his date of birth in the matriculation certificate issued by the Board/university. In that suit Government was not made a party. The question arose if the Government was bound to correct the date of birth in the service record on the basis of the said decree obtained against the Board/university in which the Government was not a party. In that suit Government was not made a party. The question arose if the Government was bound to correct the date of birth in the service record on the basis of the said decree obtained against the Board/university in which the Government was not a party. The Supreme Court has held that as in the suit the Government was not a party, such decree is not binding upon the Government and the Government is not obliged to correct the date of birth on the basis of the said decree. It is also held that at best it is a piece of evidence and the Government has to look into all kinds of evidence for determination in order to decide whether the date of birth should be correct. It is observed that what is the date of birth is undoubtedly a question of fact and so all kinds of evidence can be looked into for such determination and if the Government on consideration of all these facts refused to correct the date of birth, then the order cannot be interfered with by the Court or Tribunal. Director of Technical Education v. Smt. K. Sitadevi, AIR 1991 SC 308 : 1991 Supp (2) SCC 387. 20. The object of the rule or statutory instructions issued under the provision to Article 309 or orders issued by the Government under Article 162 of the Constitution for the correction of date of birth entered in the service record, is that the Government employee, if he has any grievance, in respect of any error or entry in the date of birth, will have an opportunity, at the earliest to have it corrected. Its object also is that the correction of the date of birth beyond a reasonable time should not be encouraged. Permission to reopen accepted date of birth of an employee, specially on the eve of or shortly before the superannuation of the Government employee would be an impetus to produce fabricated records. State of T. N. v. T. V. Venugopalan, (1994)6 SCC 302 . 21. In reference to the decision of Supreme Court in Burn Standard Co. Permission to reopen accepted date of birth of an employee, specially on the eve of or shortly before the superannuation of the Government employee would be an impetus to produce fabricated records. State of T. N. v. T. V. Venugopalan, (1994)6 SCC 302 . 21. In reference to the decision of Supreme Court in Burn Standard Co. Ltd. (supra) where entry of date of birth noted in the Admit Card of Matriculation Examination could not be relied upon by the employer to correct the date of birth recorded in the service and Leave Register of the employee and authenticated by the employee himself it was the date of birth recorded at the time of joining service on the basis of the S. S. L. C. register was challenged by the employee 35 years later and his previous application for correction seven years earlier had already been rejected by the authority and at the belated stage, the only evidence was his oral evidence and the horoscope evidence. Therefore, the Supreme Court held that at the belated stage the horoscope evidence or oral statements cannot be believed. Collector of Madras v. Rajamanickram, (1995)2 SCC 98 . 22. The date of birth recorded in periodical medical inspection reports-can be relied upon when the employee challenged the declared date of birth as mentioned in the notice of superannuation as incorrect as the service records were missing. The departmental pleaded before the Court below that the service record was manipulated and that the service register was removed by the employee in connivance with the Office Superintendent. The employee sought to rely upon the periodical medical reports noting date of birth to uphold his contention that the date of birth mentioned in the notice of superannuation was not correct. It was held that the date of birth recorded in the periodical medical inspection reports are not such reliable piece of evidence to uphold the contention of the employee that the date of birth mentioned in the superannuation notice is incorrect. Sheo Nandan Singh v. Union of India, (1996)1 SCC 593 . 23. It was held that the date of birth recorded in the periodical medical inspection reports are not such reliable piece of evidence to uphold the contention of the employee that the date of birth mentioned in the superannuation notice is incorrect. Sheo Nandan Singh v. Union of India, (1996)1 SCC 593 . 23. In respect of correction of date of birth after retirement when claimant retired from the service of 31st December, 1978 and in 1981 he filed a suit against the rejection of his representation for correct of his date of birth for declaration that his correct date of birth is 1st January, 1925 and not 1st January, 1921. The trial Court dismissed the suit but the first appellate Court decreed the suit and the Orissa High Court has dismissed the second appeal in limine. The Supreme Court set aside the order of the High Court and allowed the appeal and also the judgment and decree of the First Appellate Court and restored and the trial Court. It was held that when entry was made in the service record and when he was in service, he did not make any attempt to have the service record corrected any amount of evidence produced subsequently would be of no avail and that the High Court has therefore committed the manifest error in refusing to entertain the second appeal. State of Orissa v. Ramnath Patnaik, AIR 1997 SC 2452 : (1997)5 SCC 181 . 24. The observations made in the dismissed suit cannot be relied upon to arrive at a conclusive finding. Here the manager return the date of birth has been shown as 31-7-1928 which has been accepted by the D. I. O. S. In my respectful consideration the order dated 13-4-1993 of this Court as referred by the petitioner was decided in the facts and circumstances of one Sri Mangru and in the present case on the basis of return of manager, the D. I. O. S. has taken a definite view to ascertain the date of birth. If any date of birth other than the manager return is now intended to be claimed that will become disputed question of fact and the controversy of disputed question of fact of date of birth cannot gone into the writ jurisdiction. If any date of birth other than the manager return is now intended to be claimed that will become disputed question of fact and the controversy of disputed question of fact of date of birth cannot gone into the writ jurisdiction. The petitioner has already been retired in 1988 and he has approached by way of filing suit which was dismissed and the change of date of birth by disputing the same cannot be resolved in writ jurisdiction. 25. I have heard learned Counsel for the parties. I find that once the date of birth was entered into service book and was verified by the petitioner as well as by the concerned competent officials then at the instance of some body or some official on the basis of the medical examination of the petitioner on taking into consideration the estimation of age, the petitioner could not be made to retire on the basis of that certificate which is not based on the deep examination or the occification of bones- test or based on the real test which are necessary to analyse the real date of birth. The estimation date of birth cannot be relied upon in derogation of rules framed by the State of U. P. (Determination Date of Birth) Rules, 1974 as amended in the year 1980. From this point of view the petitioners date of birth was not to altered and she was entitled to work upto 18-2-1995. 26. An undertaking that the petitioner would not claim the salary for 22 months during which she did not work would not debar the petitioner from claiming the salary in future. It was the peculiar facts and circumstances that the State Government and their officials had restrained the petitioner to discharge her duty for no fault on her part, therefore, the petitioner is entitled to the salary of the period from 1- 5-1991 to 26-5- 1994. 27. In view of the above observations, writ petition is liable to be allowed, therefore, mandamus is issued to respondent No. 1 i. e. , Chief Medical Officer, Bijnor to make arithmetical calculation of the salary payable to the petitioner for the period from 1-5-1991 to 26-5-1994 alongwith increments which were due and payable to her and shall make payment to the petitioner within four months from the date a certified copy of this order is placed to the Chief Medical Officer, Bijnor. The petitioner if entitled under law to be given post retirement benefit, for that purpose she may put her claim separately, if so advised. 28. A certified copy of this order shall be served on the Chief Medical Officer, Bijnor by registered post as well as dasti service who shall not refuse to receive the same and if payment is not made then the Chief Medical Officer, Bijnor is responsible to pay a simple interest to be payable amount which is due to her from his own pocket. 29. Writ petition is allowed. No order as to cost. A certified copy of this order shall be given to the learned Standing Counsel free of cost within a week and on payment of usual charges to the learned Counsel for the petitioner. Petition allowed. .