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Allahabad High Court · body

2016 DIGILAW 2974 (ALL)

BRIJ KISHORE v. STATE OF U. P.

2016-08-30

P.K.S.BAGHEL

body2016
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has preferred this writ petition under Article 226 of the Constitution for quashing the order dated 31.12.2011 passed by fifth respondent retiring the petitioner from service and for the recovery of the excess amount paid to him. 2. The brief reference to the factual aspect would suffice. The petitioner was initially engaged on the post of Waterman on 8.2.1980 on casual basis. He was regularized on the said post on 1.1.1988. A show-cause notice was issued to the petitioner on 23.11.2011 on the basis of a complaint made by his brother dated 1.6.2010 wherein it was alleged that the petitioner’s date of birth in the school leaving certificate was recorded as 2.1.1945. It was alleged that he was a student of Primary School, Nawabganj Sandi, Hardoi and according to the records of the said institution, his date of birth was 2.1.1945. Copy of the show-cause notice is on record as Annexure-7 to the writ petition. 3. The petitioner has submitted his reply to the said show-cause notice on 26.11.2011 denying all the allegations made therein. It has been contended on his behalf that the petitioner at the time of his appointment, was sent for medical examination and on the basis of the age mentioned in the medical examination report, his date of birth was recorded in his service record as 2.1.1954. He has stated that his brother due to enmity, has got manufactured some documents to cause harassment to the petitioner. 4. After considering the reply submitted by the petitioner, the fourth respondent has passed the impugned order and the petitioner has been retired. In the impugned order the fourth respondent has recorded that correct date of birth of the petitioner is 2.1.1945, thus, petitioner ought to have been retired on attaining the age of superannuation on 3.1.2005. Accordingly, a direction was issued to treat the petitioner as retired on 31.12.2011 and for recovery of his salary from 1.2.2005 to 31.12.2011. In the impugned order it is also recorded that on a complaint dated 1.6.2010, it came to the knowledge that the petitioner’s correct date of birth is 2.1.1945 and on the basis of the fabricated medical report, the petitioner has got recorded his date of birth as 2.1.1954 in his service record. Some legal opinion has also been sought before passing the impugned order. 5. A counter-affidavit has been filed. Some legal opinion has also been sought before passing the impugned order. 5. A counter-affidavit has been filed. The stand taken in the counter-affidavit is that a complaint was received against the petitioner wherein it is mentioned that the petitioner got his primary education from Primary School, Nawabganj Sandi, Hardoi and according to the school register, his date of birth is 2.1.1945. A communication dated 18.10.2010 sent by the Head Master of the institution has also been brought on record wherein it is mentioned that according to the said record, the petitioner’s date of birth is 2.1.1945. 6. An impleadment application has been filed on behalf of Virendra Kumar, his brother, in the writ petition but no one is present on his behalf to press the impleadment application. An objection to the impleadment application has been filed by the petitioner. In the said objection, it is stated that a large number of criminal cases are pending between the brothers, hence due to the mala fide reasons, he had moved the complaint against the petitioner, which ought not to have been entertained. 7. Heard learned counsel for the petitioner, Sri Jitendra Singh learned Standing Counsel and Sri N.C. Mehrotra for respondent Nos. 2 to 5. 8. It is contended on behalf of the petitioner that he was appointed in the year 1980 and was regularized in the year 1988 and after such a long period, a complaint has been made against the petitioner in 2011 and without holding any enquiry, the petitioner’s services has been terminated. It is further urged that the petitioner was appointed after the medical examination, on the basis of medical report his age was recorded in service book. Next it was submitted that U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 (In short ‘Rules 1974’) provide that if a person has not passed High School then the age recorded in the service record is final. He has further submitted that neither the communication of the Head Master of the institution was supplied to him nor any other document was furnished to him. Thus, the entire proceedings is in the breach of natural justice. 9. He has further submitted that neither the communication of the Head Master of the institution was supplied to him nor any other document was furnished to him. Thus, the entire proceedings is in the breach of natural justice. 9. Lastly, it is urged that the petitioner has worked till 2011, thus the direction for recovery of the salary from 2005 to 2011 is arbitrary as during the said period, the petitioner has actually worked, hence no recovery can be made for the said period. 10. Sri N.C. Mehrotra, learned counsel for the respondent Nos. 2 to 5 submits that the petitioner has committed fraud and he has obtained his appointment on the basis of the fabricated medical report. 11. I have considered the rival submissions and perused the record. 12. The petitioner was initially appointed in the year 1980 on casual basis and in the year 1988 he was regularized and after about 30 years a complaint was made against him by his real brother that his date of birth is wrongly recorded and his correct date of birth is 2.1.1945. In support of the said allegation, it appears that he has produced some duplicate copy of the school leaving certificate which indicate that his date of birth is recorded 2.1.1945 in schools record. On the basis of the communication of the Head Master and the said document, a show-cause notice was issued to the petitioner stating that the Head Master of the institution has certified that his date of birth is 2.1.1945. The petitioner in his reply to the said show-cause notice has categorically denied the said fact. From the show-cause notice, it is clear that the document relied by the respondents i.e. the communication of the Head Master and his duplicate school leaving certificate was not furnished to the petitioner. 13. The State Government has framed U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 to determine the date of birth of the Government servants. The Rule-2 of Rules, 1974 provides the determination of correct date of birth. Rule-2 of Rules, 1974 reads as under : “2. 13. The State Government has framed U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 to determine the date of birth of the Government servants. The Rule-2 of Rules, 1974 provides the determination of correct date of birth. Rule-2 of Rules, 1974 reads as under : “2. Determination of correct date of birth or age—The date of birth of a Government servant as recorded in the certificate of his having passed the high School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.” 14. From the reading of the Rule-2 it is evident that if a person is High School at the time of his entry into Government service, the date of birth recorded in the High School certificate shall be deemed to be his correct date of birth and in case the Government servant is not High School then the date of birth or the age recorded in service book at the time of his entry, shall be deemed to be his correct date of birth or age. 15. The Rule 2 of Rules 1974 came to be considered by the Supreme Court in the case of State of Uttranchal and others v. Pitamber Dutt Semwal, (2002) 1 UPLBEC 441 SC. The Court has held as under: “6. These rules, the validity of which have not been challenged, clearly stipulate that no application or representation shall be entertained for correcting any date or age record and the entry made in the service book shall be deemed to be the correct date of birth. Be that as it may, even dehors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. Be that as it may, even dehors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the service book was prepared in 1965 and according to the appellant, he has signed the said service book at least on three occasions. In any case, the plea of the wrong recording of the age in the service book has been taken, nearly thirty years after the service book was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the High Court to have interfered with the decision of the appellant.” 16. The said rule was again considered in the case of State of U.P. and others v. Gulaichi (Smt), (2003) 6 SCC 483 , wherein the Court has held as under: “12. - - - Additionally, the first appellate Court and the High Court seem to have lost sight of the fact that the person who endorsed changes was not authorized to do so. The original service-book was produced before us by the learned counsel for the appellants. Though the learned counsel for the respondent submitted that we should not look into it, for the purpose of arriving at the truth, we overruled the objection and looked at the original document, which undisplutedly was exhibited during trial. The entry i.e. 31-07-1929 appears to have been made simultaneously by one and the same person at the time when other entries were made in FR Form 13. The respondent has herself signed the page at Serial No. 8, whereas the entry relating to the date of birth is at Serial No. 5.” 17. In U.P. Madhyamik Shiksha Parishad and others v. Raj Kumar Agnihotri, (2005) 11 SCC 465 , the Supreme Court had occasioned to consider the Rule 2 of the Rules 1974 and has held that the age recorded in the service at the time of entry shall be deemed to be correct date of birth for all purposes and no application or representation shall be entertained for correction of such date. The Court held as under: “18. In the instant case, the U.P. Recruitment to Service (Determination of date of birth) Rules came into force w.e.f. 28.5.1974. The Court held as under: “18. In the instant case, the U.P. Recruitment to Service (Determination of date of birth) Rules came into force w.e.f. 28.5.1974. Rule 2 of the Rules was amended by the first amendment Rules, 1980 of 7.6.1980. The existing rule and the substituted rule are extracted hereinbelow: COLUMN 1 (Existing rule) COLUMN 2  (Rule as hereby substituted) 2. The date of birth of Government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a Government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into Government service, shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation to his service including, eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. 2. The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. As per the existing rule, the date of birth or the age recorded in his service book at the time of entry into the Government service shall be deemed to be the correct date of birth or age, as the case may be, for all purposes and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. 18. 18. What emerges from the above mentioned cases is that Rule 2 of Rules 1974 does not provide any change and no representation can be entertained for the change of date of birth for whatsoever reason by the employee. 19. It is a common ground that the petitioner is not High School and his date of birth recorded in the service record is 2.1.1954. He did not produce any school leaving certificate at the time of his appointment that was the reason for recording his date of birth on the basis of Medical report. It is noteworthy that the petitioner has averred in the writ petition that at time of his appointment, he was sent for a medical examination and the said report dated 3.3.1987 is issued under the seal and signature of Chief Medical Officer, Hardoi, it is on the record as Annexure-3 to the writ petition. It is recorded therein that at time of the medical examination, his age was about 34 years. The said certificate was issued in the year 1987. The averment made in the writ petition and about this document has been replied in the counter-affidavit in paragraph No. 17. The paragraph No. 17 of the counter-affidavit reads as under : “17. That the contents of paragraph No. 5 of the writ petition are false and are denied. The alleged certificate has no relevance. The document itself shows that the date of birth of the petitioner is 2.1.1945 and not 2.1.1954.” 20. A careful perusal of the medical report dated 3.3.1987 indicates that the averment made in the counter-affidavit that in the said certificate it is mentioned that the petitioner’s date of birth is 2.1.1945, is palpably false. There is no such recital is in the said certificate. Moreover in the counter-affidavit the genuineness of the medical certificate has not been doubted. 21. In addition to above, the respondents have entertained the complaint after 30 years of service. In the objection to the impleadment application, the petitioner has given the details of the criminal cases between the brothers. This facts also indicate that for the mala fide intention, the brother of the petitioner had made the complaint. 22. 21. In addition to above, the respondents have entertained the complaint after 30 years of service. In the objection to the impleadment application, the petitioner has given the details of the criminal cases between the brothers. This facts also indicate that for the mala fide intention, the brother of the petitioner had made the complaint. 22. It is noteworthy that, the petitioner in his reply to the show-cause notice has categorically denied the fact that he has received any education in the said institution and the documents relied by the respondents are fabricated and manufactured documents, in my view, a regular departmental proceedings ought to have been initiated against the petitioner giving him full opportunity to rebut the allegation made against him. No such enquiry has been conducted against the petitioner even the document which has been relied in the impugned order, has not been furnished to the petitioner. Thus, whatever enquiry has been conducted by the respondents, is in the breach of the natural justice. 23. It is a trite that if a document is relied by the employer for taking action against the employee, the said document must be supplied to the employee. The said requirement is based on the fair play and natural justice. No such procedure has been adopted by the respondents. In my view, the action of the respondents has to be tested on the touchstone of justice, equity and fair play. Accordingly, the impugned order stands vitiated on the ground of the breach of the principle of natural justice. 24. The petitioner is a Class IV employee. From the counter-affidavit, it is evident that no allegation against the petitioner in respect of his work and conduct has been made. Only on the basis of a complaint of his brother, the enquiry has been initiated after such a long period. A person who has been working satisfactory for 30 years, cannot be disturbed at the verge of his retirement. As noted above, no enquiry against him has been conducted in accordance with law. In his service record, his date of birth is 2.1.1954. During the pendency of the writ petition, he stood retired. 25. After a careful consideration of the matter, for the reasons stated above, I find that the impugned order dated 31.12.2011 is not sustainable. It needs to be quashed. Accordingly, it is quashed. In his service record, his date of birth is 2.1.1954. During the pendency of the writ petition, he stood retired. 25. After a careful consideration of the matter, for the reasons stated above, I find that the impugned order dated 31.12.2011 is not sustainable. It needs to be quashed. Accordingly, it is quashed. No recovery shall be made pursuant to the impugned order. 26. The writ petition is allowed.