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Madhya Pradesh High Court · body

2011 DIGILAW 1280 (MP)

Laxmi Narayan Agrawal v. State Of M. P.

2011-11-11

K.K.TRIVEDI

body2011
Judgment ( 1. ) THIS petition was originally filed as Original Application No. 65/1999-B, before the M.P. Administrative Tribunal Bench at Bhopal, by the petitioner seeking correction in his date of birth mentioned in the service record. It was contended that instead of retiring him from the actual date of retirement on 30-4-2002, he has been retired on 30-4-1998. The representation was made by the petitioner for correction of his date of birth, but nothing was done and, therefore, he was required to approach the M.P. Administrative Tribunal. It is the contention of the petitioner that the order retiring him so issued on 28-1-1998 (Annexure A-1) is bad in law and is liable to be quashed. ( 2. ) THE Original Application was entertained, the notices were issued to the respondents, who have filed their return. During the pendency of the Original Application, since the Tribunal was closed, the Original application has been transmitted to this Court and has been registered as Writ Petition. Learned Counsel for the petitioner has, vehemently, contended that there was no documentary evidence available to indicate the date of birth so recorded in his service books as 11-4-1940. According to the petitioner, he has simply signed on the first page of the service book which was prepared on 20-7-1962, but has not made any declaration of date of birth. When there were certain disputes with respect to the date of birth came to the notice of the State authorities, instructions were issued directing that employee concerned be asked to make representation. Accordingly, a memo was issued to the petitioner on 25-7-1996 asking him to submit the documents relating to proof of date of birth. Such documents were made available by the petitioner and thereafter he was intimated vide memo dated 20-11-1996 vide Annexure A/16 by the respondents calling on him to produce original of the educational certificate in proof of his date of birth. The petitioner immediately produced such certificates vide his application dated 25-11-1996, but instead of taking a decision on that and correcting the date of birth of the petitioner since the order of retirement was issued he was required to approach the Tribunal. The petitioner immediately produced such certificates vide his application dated 25-11-1996, but instead of taking a decision on that and correcting the date of birth of the petitioner since the order of retirement was issued he was required to approach the Tribunal. Relying on certificate issued in respect of petitioner, before the date of his first appointment, the petitioner has contended that his correct date of birth was 11-4-1944 and, therefore, there was an error in recording the date of birth of the petitioner as 11-4-1940 and he should not have been retired on the basis of such a date of birth. The relief to this effect have been claimed in the Original Application. ( 3. ) REFUTING the allegation made by the petitioner, detailed return has been filed by the respondents and they have categorically contended that the petitioner has not only signed on the first page of the service book which was prepared according to his own declaration, but he has also put his finger impression. It was categorically contended that when the petitioner was required to make a declaration with respect to General Provident Fund account, he submitted such a declaration categorically mentioning his date of birth as 11-4-1940. It is further contended that when subsequent to this in the year 1978, the petitioner made a declaration about the details of his family in Form 3, he categorically stated his date of birth to be 11-4-1940 and his first date of appointment as 1-8-1961. This particular document was also signed by the petitioner. It is further contended by the respondents that the petitioner was communicated the gradation seniority list in which the specific entries were made with respect to the date of birth and it was said that the recorded date of birth of the petitioner was 11-4-1940. Till the year 1995, such facts were duly brought to the notice of the petitioner. It is further contended by the respondents that the petitioner was communicated the gradation seniority list in which the specific entries were made with respect to the date of birth and it was said that the recorded date of birth of the petitioner was 11-4-1940. Till the year 1995, such facts were duly brought to the notice of the petitioner. He has never objected to such an entry made in the service book with respect to his date of birth and, therefore, when information was sought, the documents were produced by the petitioner, all such facts were taken into account and the respondent No. 2 passed an order on 28-1-1998 rejecting the claim made by the petitioner for correction in the date of birth recorded in his service book and said that his date of birth should be treated as 11-4-1940, according to which the petitioner has been retired. Further stating that as per provisions of Rule 84 of M.P. Financial Code Part I, any change in the date of birth once recorded in the service book, is permissible only if any clerical error is committed. Since there was no clerical error pointed out in recording the date of birth of the petitioner nor there was any interpolation, the claim of the petitioner for correction in the date of birth was rightly rejected. According to the learned Deputy Advocate General appearing for the respondents, no case is made out to interfere in the action taken by the respondents and, therefore, submission is made that the petition is liable to be dismissed. ( 4. ) HEARD the learned Counsel for the parties at length. Learned Counsel for the petitioner has put his reliance heavily on a Division Bench decision of this Court in Writ Petition No. 2561/2001, decided on 17-1-2002. It is contended by the learned Counsel for the petitioner that as was held by the Division Bench of this Court, it was necessary on the part of the respondents to indicate what was the basis of recording the date of birth of the petitioner and what was the evidence available lor justification of recording such a particular date of birth of the petitioner in the service book. There is nothing on record to indicate that the date of birth of the petitioner was proved to be 11-4-1940 on the basis of any document. There is nothing on record to indicate that the date of birth of the petitioner was proved to be 11-4-1940 on the basis of any document. Not even a declaration made by the petitioner to this effect has been produced and merely because the recorded date of birth was reflected in subsequent documents, it could not be said that the date of birth of the petitioner was rightly recorded in the service book and no change was warranted. It is the contention of the learned Counsel for the petitioner that there was no declaration made to this effect and, therefore, in view of the law laid down by the Division Bench of this Court, the petitioner is entitled to all the reliefs claimed in the petition. ( 5. ) PER contra it is, vehemently, contended by the learned Deputy Advocate General for the respondents that the law is well settled by catena of decisions of the Apex Court where it has been held that the date of birth once recorded is not ordinarily required to be changed. Relying on a decision rendered by the Apex Court in the case of Bhupindra Nath Chatterjee Vs. The State of Bihar and others, 1977 (1) SLR 590, learned Deputy Advocate General has contended that the Apex Court has said that if the date of birth was recorded, the same was admitted by the Government servant, then it was not open to the Government servant to say that such a date of birth was not correctly recorded. The Apex Court in Paragraph 5 of the report has held that the date of birth was recorded by the Accountant General of the State in the said case. In one of the application submitted by the appellant, in the aforesaid case, he himself had admitted the date of birth so recorded in the service book, therefore, it was held that the admitted position was not to be changed merely because something else was mentioned in the education certificate produced by the appellant in that case. Here in the case in hand, the fact is required to be seen that what was the basis of recording the date of birth of the petitioner in the service book at the time of preparation of the service book. Here in the case in hand, the fact is required to be seen that what was the basis of recording the date of birth of the petitioner in the service book at the time of preparation of the service book. Neither there is any declaration made in this respect nor there is any documentary proof to the effect that the date of birth of the petitioner was 11-4-1940. From where this particular year was obtained for mentioning in the service book is not clear. The petitioner was a low paid employee in the lowest rungs appointed in the services and, therefore, if, he was not very much aware of making of proper declaration, it could not have been said that the petitioner has admitted the correctness of the date of birth open heartedly or with full consciousness of the impact of such admission. In the case of State of Orissa and others Vs. Brahamarbar Senapathi, (1994) 2 SCC 491 , on which the reliance is placed by the learned Deputy Advocate General, the Apex Court was of the opinion that correction in the date of birth was not required at the fag end when specifically it was provided in the Orissa General Financial Rules for intimation of the date of birth to each and every person, and knowing fully well even after serving for more than five yeas, if no change is sought. The case in hand is different on such footings. Here the petitioner himseff was asked to furnish the information, the documentary evidence in proof of the date of birth. When he submitted the documents, the respondents departmental authorities themselves have asked the petitioner to furnish original coy of the educational certificate. Such educational qualification certificates were prior to the date of appointment of the petitioner in the service. Even if it be treated that the petitioner was under age at the initial date of appointment, he was appointed only on a lower wages on a post of 'Masalchi'. Therefore, it could not be said that any fraud was played by the petitioner to obtain employment in the services by showing that his date of birth was 11-4-1940 and, accordingly, he was within the age limit to be appointed in the Government services. Therefore, it could not be said that any fraud was played by the petitioner to obtain employment in the services by showing that his date of birth was 11-4-1940 and, accordingly, he was within the age limit to be appointed in the Government services. Therefore, to say that the petitioner has obtained appointment in such a manner and was, thus, not entitled to seek any change in the date of birth is not correct. In the considered opinion of this Court, the law laid down by the Apex Court in the case of State of Orissa and others Vs. Brahamarbar (supra), is not squarely applicable. ( 6. ) THE other decision relied on by the learned Deputy Advocate General for the State is Union of India Vs. Ram Suia Sharma, (1996) 7 SCC 421 . THE Apex Court simply said that at a belated stage, the Court or Tribunal cannot entertain a claim for correction of the date of birth duly entered in the service. After such a long period, if the change is sought, after putting in years of services, the Apex Court has said that such claim for change in the recorded date of birth is not to be entertained by the Court. In the opinion of this Court, such a decision is also not applicable. On 25-7-1996 (Annexure A-15), the respondent No. 2 himself has directed the petitioner to produce the proof of date of birth since it was said that the date of birth recorded in the service book of the petitioner was not duly certified by any Competent Authority. Such an objection was taken in an audit conducted by the auditors of the Accountant General, M.P., Gwalior. THE petitioner was not asking for change of date of birth on his own, but when he submitted the document in proof of his date of birth, the respondent No. 2 himself has written him a letter on 20-11-1996 (Annexure A-16) calling upon the petitioner to produce the original certificate in proof of date of birth of the petitioner so as to certify whether the date of birth of the petitioner was 11-4-1940, or it was 11-4-1944. Pursuance to this, the petitioner submitted the representation (Annexure A-12) on 22-11-1996, annexing with it all the original of the documents. Pursuance to this, the petitioner submitted the representation (Annexure A-12) on 22-11-1996, annexing with it all the original of the documents. If the enquiry was to be conduced with respect to the correctness of date of birth of the petitioner, it was not to be conducted at the behest of the petitioner. On the other hand, it was initiated on the basis of an audit objection raised by the auditors of the Accountant General, M.P., Gwalior and for that the documents were called from the petitioner. Thus, it was the heavy burden on the respondents to indicate as to what was the basis of recording date of birth of the petitioner to be 11-4-1940 in his service book when initially it was prepared. THE respondents have utterly failed to discharge this burden as they could not point out any document except the subsequent declarations made by the petitioner with respect to the date of birth after the preparation of the service book. Looking to the category in which the petitioner was serving if such a declaration was made or such declaration was signed by the petitioner, it cannot be said that he has openly accepted the correctness of the date of birth recorded in his service book. Had it been so, the auditor of the Accountant General, M.P., Gwalior would not have raised the objection with respect to the certification of the date of birth of the petitioner in his service book. As nothing has been pointed out by the respondents as to what was the procedure for seeking correction in the date of birth and whether there is any limitation prescribed and whether such a fact was ever brought to the notice of the petitioner at the relevant time, the reliance by the learned Deputy Advocate General in the case of State of Uttar Pradesh and another Vs. Shiv Narain Upadhyaya, (2005) 6 SCC 49 , is also not justified. The law laid down by the Apex Court in the case of Shiv Narayan (supra), is based on the principle that there should be a procedure for correction in the date of birth and a time limit should also be prescribed for making such a correction. Shiv Narain Upadhyaya, (2005) 6 SCC 49 , is also not justified. The law laid down by the Apex Court in the case of Shiv Narayan (supra), is based on the principle that there should be a procedure for correction in the date of birth and a time limit should also be prescribed for making such a correction. However, this particular aspect is to be examined whether at any point of time, after initial appointment, the petitioner was apprised of the fact that his date of birth was so recorded in his service book. Apparently, this was brought to the notice of the petitioner only when audit objections were raised by the auditors of the Accountant General, M.P., Gwalior with respect to the certification of the date of birth of the petitioner in the year 1996. As he was called upon to furnish the proof of his date of birth, he simply did it without asking for any change. The Director of the department himself found discrepancies in the date of birth so recorded in the service book and mentioned in the educational certificates of the petitioner and asked the petitioner to produce original certificate in proof of such fact. This itself is enough to indicate that there was no material available with the respondents at the time when the service book of the petitioner was prepared way back in the year 1962 with respect to the date of birth of the petitioner and, therefore, the date of birth to the petitioner was erroneously recorded. If that being so, at this stage, the respondents cannot say that folly was totally on the part of the petitioner and, therefore, he is not entitled to any relief. ( 7. ) IN the considered opinion of this Court, the decisions of the Apex Court relied on by the learned Deputy Advocate General are distinguishable on such facts. Therefore, such contentions of the respondents cannot be accepted. Consequently, the petition is allowed. The order impugned dated 28-1-1998 (Annexure A-1) is, hereby, quashed. Since the petitioner has already attained the age of superannuation according to his correct date of birth, it is ordered that treating that the date of birth of the petitioner is 11-4-1944, he be treated to be retired with effect from 30-4-2002. Consequently, the petition is allowed. The order impugned dated 28-1-1998 (Annexure A-1) is, hereby, quashed. Since the petitioner has already attained the age of superannuation according to his correct date of birth, it is ordered that treating that the date of birth of the petitioner is 11-4-1944, he be treated to be retired with effect from 30-4-2002. Since the petitioner was not permitted to work for the aforesaid period because of the folly on the part of the respondents, they are commanded to make payment of salary for the period with effect from 1-5-1998 to 30-4-2002. The pension paid to the petitioner during this period will be deducted from the salary amount which is required to be paid to the petitioner and rest of the amount be paid to him within a period of three months from the date of the order. ( 8. ) THE petition is allowed to the extent indicated hereinabove.