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Madhya Pradesh High Court · body

2003 DIGILAW 846 (MP)

Rakesh Kumar Tiwari v. State of M. P.

2003-07-16

CHANDRESH BHUSHAN, S.S.JHA

body2003
ORDER Jha, J. -- 1. This petition in public interest litigation is filed against the appointment of respondent No.3 as Dy. Commissioner, Municipal Corporation, Gwalior and it is also contended that respondent No.3 Rambabu Jakheniya is not eligible to continue in service beyond the age of 60 years. Respondent No.3 has manipulated the service record and he is being continued in service even after the age of superannuation. It is further contended that after finding discrepancy in his service record, notice Annexure P-5 was issued to him by Municipal Corporation on the directions of the Administrator, but no action was initiated on the said notification and after issuance of this notice, it is found that portion over which age and date of birth was written in the application form is damaged. 2. Respondent No.3 vehemently opposed the petition and submitted that petitioner has no locus to file petition. We have heard the counsel for parties. Section 58 of Municipal Corporation Act provides that post of Dy. Commissioner, Municipal Corporation shall be filled by the "Mayor-in-Council" after approval of the post by State Government. It further provides that after the post is sanctioned, "Mayor-in-Council" shall recommend the name and on approval of State Government, Dy. Commissioner shall be appointed. On perusal of letter of appointment of respondent No. 3 as Dy. Commissioner, it is found that he is appointed as Dy. Commissioner in anticipation of sanction from the State Government by the order of Commissioner, Municipal Corporation, Gwalior on the recommendation of the General Body of Municipal Corporation. Thus, appointment itself is contrary to section 58 of Municipal Corporation Act and it is held that respondent No.3 is not eligible to hold the post of Dy. Commissioner, Municipal Corporation. His appointment at the instance of General Body of Municipal Corporation is bad in law and order of his appointment dated 3.10.2000 Annexure P-6 is quashed. 3. First we deal with the question of locus standi it may be mentioned that petitioner has filed this petition in public interest. Petitioner is a citizen of India and has pointed out the irregularities in appointment of respondent No.3 as Deputy Commissioner and has also pointed out a number of irregularities in continuing respondent No. 3 in service. 3. First we deal with the question of locus standi it may be mentioned that petitioner has filed this petition in public interest. Petitioner is a citizen of India and has pointed out the irregularities in appointment of respondent No.3 as Deputy Commissioner and has also pointed out a number of irregularities in continuing respondent No. 3 in service. He has also pointed out that inspite of the complaints against the respondent No.3 they could not be examined by the Lokayukta as documents were not provided to the Lokayukta by the officers of respondent Municipal Corporation. Considering the facts of the case, we hold that the petitioner being a public-spirited citizen, has a locus standi to file the petition. 4. Petitioner has filed document Annexure P-1, in which respondent No.3 has mentioned his date of birth as 15.4.1942 and his age at the time of appointment is mentioned as 22 years. Petitioner has contended that this record was tempered by overwriting, which is apparent from document Annexure P-2, wherein date of birth is mentioned as 15.4.1945 and 19 years of age at the time of appointment on the post of Assistant Taxidermist. In the service book said to be prepared on 9.12.1974 his date of birth is mentioned as 22.10.1948. It is pertinent to mention here that respondent No. 3 Rambabu Jakheniya was appointed as Assistant Taxidermist on 7.5.1964. He was appointed temporarily. Later he was confirmed on the post of Assistant Taxidermist. During this period respondent No.3 appeared in the Higher Secondary Examination and passed the Higher Secondary Examination. Thus, main question is whether on a subsequent recorded date of birth respondent No.3 could be appointed as Assistant Taxidermist in 1964 when he was less than 16 years of age. Respondent Corporation has issued notice to respondent No.3 vide letter dated 12th September 1994 Annexure P-4 asking him to produce middle school certificate in proof of his age within 7 days. In the first application for appointment he has mentioned that he has passed Middle Examination. He was directed to produce Middle School Certificate and he was further directed that since he has passed Higher Secondary Examination during service, therefore his date of birth can be recorded on the basis of Middle School certificate. Respondent No. 3 was directed to produce Middle School Certificate within seven days. Respondent No. 3 did not produce the certificate. He was directed to produce Middle School Certificate and he was further directed that since he has passed Higher Secondary Examination during service, therefore his date of birth can be recorded on the basis of Middle School certificate. Respondent No. 3 was directed to produce Middle School Certificate within seven days. Respondent No. 3 did not produce the certificate. Then on 1.10.1994 notice was issued to respondent No.3 asking him to clarify that in the appointment letter in Column No. 5 he has shown his educational qualification as Middle pass and some overwriting over date of birth 9.4.1942 has been made and in Column 7 he has mentioned his age as 19 years on 7.5.1964 and notice was issued why his date of birth be not treated as 7.5.1945. In the notice it was mentioned that as per instructions of Government dated 30.8.1993 that if he was not eligible to be appointed on the date of appointment then he should not be allowed to continue in service and was asked to submit middle school certificate within 7 days. 5. On perusal of service record and the first application for appointment we find that column 6 which relates to certificate of exact age, the paper is torn at a place where year is written and for the date and month 22 and 10 apparent overwriting is seen. Against the age in column 7 paper is torn. Counsel for Municipal Corporation admitted that this erosion in the service record and the application for appointment has been made after notice Annexure P-5 was served upon respondent No.3. Thus, from document Annexure P-5 it is clear that there is manipulation in the date of birth in the application for appointment. Respondent No.3 suppressed the photo copy of Annexure annexed to Annexure P-5, which was sent to respondent No.3 but respondent No. 3 in his return has not uttered a word about the copy received by him. On perusal of record photo copy of annexure is found where date of birth is mentioned as 22.10.1948 and age at the time of appointment as 19 years. The figure 22 also looks like 25 in Hindi and on reading figure 48 minutely it appears that on figure 2 in Hindi figure 8 in Hindi is imposed by overwriting, whereas age at the time of appointment is mentioned as 19 years. The figure 22 also looks like 25 in Hindi and on reading figure 48 minutely it appears that on figure 2 in Hindi figure 8 in Hindi is imposed by overwriting, whereas age at the time of appointment is mentioned as 19 years. Inspite of the notice dated 1.10.1994 on reply to show cause notice was submitted by the respondent No.3. Respondent No.3 filed a Writ Petition No. 1172/94 and order of status quo was passed. Thus, instead of filing reply writ petition was filed by the respondent No.3. Copy of interim order is found on record of Municipal Corporation, but there is nothing on record about the final order on this petition. Respondent No.3 in his return has not mentioned a word about filing of this petition. Respondent No.3 has not filed any reply to show cause notice. Then in the year 1996 orders were passed for his transfer to Satna and thereafter respondent No.3 rejoined the service claiming therein that his transfer has been stayed. 6. Counsel appearing for respondent No.3 has vehemently opposed the petition and stated that Annexure P-1 and P-2 are forged documents. We have examined the documents. The writing in document Annexure P-1 and P-2 is similar to the application of respondent No.3 before the Municipal Corporation. We find that the record is tempered with. It may be mentioned that respondent No.3 who was holding important post in the Municipal Corporation, and in order to gain advantage in service, has manipulated the record and during this manipulation, application is torn at most vital places. Though some vigilance enquiry I regarding the conduct of respondent No.3 was directed by Lokayukta office and from the letter dt. 11.9.2000 it is found that inspite of repeated reminders the necessary documents were not sent to the office of Lokayukta nor any comments were sent. 7. This Court directed Municipal Corporation to hold an enquiry regarding the date of birth of respondent No.3. Inspite of conducting an enquiry Commissioner has submitted his opinion and has relied upon the report of a handwriting expert. We have examined the case and we hold that somebody in the Municipal Corporation or some other person interested in respondent No.3 has torn the portion where age and date of birth was written in the application form for the appointment for the benefit of respondent No.3. We have examined the case and we hold that somebody in the Municipal Corporation or some other person interested in respondent No.3 has torn the portion where age and date of birth was written in the application form for the appointment for the benefit of respondent No.3. However, considering the letter Annexure P-5, which is not disputed by Municipal Corporation, it is apparent that respondent No. 3 has mentioned his date of birth as 9.4.1942 at the time of appointment. He was appointed in the year 1964. Therefore, it can safely be presumed that the date of birth given by him at the time of appointment should be treated to be final. The contention of counsel for respondent No. 3 is that once date of birth is admitted in the service record, it cannot be altered. We may mention here that service book was prepared much later and on minute perusal of service book we find that the date mentioned under the signature of respondent No.3 is 9.12.1974 but the thumb impression of respondent No. 3 is not evidenced by signature of designation of officer before whom impression of finger prints and thumb impression was taken. The service book bears the signature of Account Officer and Commissioner Municipal Corporation dated 12.6.1980 and 25.7.1980. Thus, preparation of paper book in the year 1974 appears to be doubtful. In the service book it is found that it was signed in the year of 1980 by the Commissioner and the Account Officer on all the pages from page 4 onwards and thereafter no entry is made in this service book and it is mentioned that next entry be seen in Second service book. It appears that all the entries have been made by one stroke of pen in the year 1980 and the second service book does not bear date of birth, but it has been prepared in the same ink and pen upto the date of 9.11.1993. The date of birth is recorded on the basis of higher secondary certificate, whereas middle school certificate discloses the date of birth is 1946, which has been changed to 1948 after respondent No.3 passed in the higher secondary examination. 8. In the said facts of case it is settled position that the date of birth as declared by the employee at the time of appointment should be accepted and should be held to be final. 8. In the said facts of case it is settled position that the date of birth as declared by the employee at the time of appointment should be accepted and should be held to be final. Subsequent date of birth was not accepted by the employer and notice was also given to the respondent No.3 to furnish correct date of birth but he has not filed any reply to that notice. There is nothing on record to show that he has filed any reply to said notice. Counsel for respondent No. 3 has vehemently relied upon the seniority list, in which different dates of birth are mentioned. It can safely be said that seniority list is not a proof of correct age and date of birth of respondent No.3. 9. As discussed above, it is apparent that at the time of employment, respondent No.3 has declared his date of birth as 9.4.1942, which is apparent from document Annexure P-5. Since at the relevant places, not only erasion in the figures have been made but the paper is tom at the relevant places, where date of birth is recorded, which clearly shows that this manipulation is for the benefit of respondent No.3. In the circumstances, it will be safe to accept date of birth as declared by the respondent No. 3 at the time of joining the service. The date of birth i.e. 9.4.1942 as declared by the respondent No.3 at the time of joining of service in the year 1964 should be accepted. Since there were no specific recruitment rules in the Municipal Corporation, therefore, as per the practice prevailing the date which was declared at the time of appointment shall be deemed to be accepted between the pm1ies and the inference can also be drawn from para 14 of Standard Standing Orders framed under M.P. Standard Standing Act, 1960. Therefore, it is held that date of birth of respondent No.3 is 9.4.1942 and he is entitled to continue in service upto the age of superannuation i.e. 60 years. It is, therefore, ordered that respondent No. 3 is not entitled to continue in service beyond the age of superannuation. 10. In the result petition succeeds and is allowed. There shall be no orders as to costs. Petition for Special Leave to Appeal (Civil) No. 13229 of 2003 dismissed on 4.8.2003 by Hon'ble Supreme Court of India.