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2018 DIGILAW 558 (ALL)

JAUNAR SINGH v. STATE OF U. P.

2018-03-07

MANOJ KUMAR GUPTA

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JUDGMENT : Hon'ble Manoj Kumar Gupta,J. A supplementary affidavit has been filed which is taken on record. 2. Sri S.R. Pandey, learned counsel for the respondent states that he does not wish to file any affidavit in rebuttal. 3. Heard counsel for the parties on merits of the case. 4. The petitioner has filed the instant petition seeking quashing of notice dated 30.9.2006 issued by the Executive Officer, Nagar Palika Parishad, Marahra, Etah, whereby he was informed that he would retire on 31 Dec. 2006 upon attaining age of superannuation i.e., 60 years and for a further direction restraining the respondents from interfering in the working of the petitioner as Safai Naik after recording his correct date of birth in the service book as 14 April 1956, instead of 1 January 1947. 5. The case of the petitioner is that he entered in the service of Nagar Palika as Safai Naik on 1 January 1975. At that time, he submitted his original School Leaving Certificate of class Vth wherein, according to the petitioner, his date of birth was recorded as 14 April 1956. He was medically examined by the Chief Medical Officer, Etah and thereafter his service book was duly prepared. He was entitled to continue in service till 13 April 2016, but he has been served with the impugned notice whereby, he was sought to be retired on 31 December 2006. The categorical case of the petitioner is that his original service book was lost by the respondents. Subsequently, they prepared a new service book in the year 1986, in which his date of birth was recorded as 1.1.1947, without any basis. 6. The respondent-Nagar Palika has filed a counter affidavit contending that the date of birth of the petitioner is recorded as 1 January 1947 in the service book. The first page of the service book bears signature of the petitioner, which means that he was aware of the date recorded in the service book. He cannot challenge the same at such a belated stage. 7. It is noteworthy that in the counter affidavit it is not disputed that at the time of entry of the petitioner into service, his service book was prepared but which was lost, consequently another service book was prepared in the year 1987. He cannot challenge the same at such a belated stage. 7. It is noteworthy that in the counter affidavit it is not disputed that at the time of entry of the petitioner into service, his service book was prepared but which was lost, consequently another service book was prepared in the year 1987. In the aforesaid circumstances, this Court by order dated 10 February 2015 directed the respondents to produce the service book of the petitioner before this Court. In compliance of the said order, the service book as well as other records were produced before this Court. After perusing the same, this Court passed a detailed order on 9 March 2015, relevant part of which reads as under:- "In compliance of order of this Court dated 10.2.2015, the service book of the petitioner and the form submitted by the petitioner for availing benefit under the Employees Group Insurance Scheme, have been produced before this Court. Perusal of the service book indicates that it was prepared afresh on 24.12.1987 and wherein the date of birth of the petitioner is mentioned as 1.1.47. It bears his signature on the first page, where his date of birth is mentioned. The form submitted for availing the benefit under the Employees Group Insurance, mentions the date of birth of the petitioner as 1.1.47 and the said form also duly bears the signatures of the petitioner. The form is undated. However, there is yet another form by the name of Data Collection Form-A in which, various particulars of the employee are furnished for preparation of Data Base for employees management and information system (DEMIST), wherein also the date of superannuation of the petitioner is mentioned as 31.12.2006. The aforesaid form also bears the signatures of the petitioner. It is thus, apparent from the original record produced before this Court that though the service book of the petitioner appears to have been prepared afresh in the year 1987 but the factum of the date of birth of the petitioner being 1.1.47 recorded therein was in the knowledge of the petitioner. Thus, the question which would arise is regarding delay in challenging such entry. Learned counsel for the petitioner seeks time to explain the same by means of supplementary affidavit. Two weeks time is accordingly allowed. List after two weeks." 8. Thus, the question which would arise is regarding delay in challenging such entry. Learned counsel for the petitioner seeks time to explain the same by means of supplementary affidavit. Two weeks time is accordingly allowed. List after two weeks." 8. The petitioner thereafter filed a supplementary affidavit in which it is stated that his signature was taken on the service book, without relevant entries being filled up. According to the petitioner, the entry relating to date of birth was filled up by the respondents later on and thus, he had no knowledge of the same until he received the retirement notice. Learned counsel for the petitioner submitted that the petitioner, who was working as Safai Naik, which is a class IV post, was not aware of the implications of the entries in Data Collection Form-A which was prepared by the employer and was got signed from the employees in a routine manner. Same contention has been raised in regard to the form submitted before the authorities for availing the benefit under the Employees Group Insurance Scheme. 9. On the other hand, learned counsel for the respondent contended that the petitioner has been retired on basis of date of birth recorded in the service book and thus, there is no illegality in the impugned notice. 10. Normally, the entries in the service book are to be taken on their face value. If an employee has to dispute the correctness of any entry, especially the one relating to date of birth, it should be done immediately after he gained knowledge of the incorrect entry. He cannot be permitted to challenge the same at the fag end of the service. But these principles would not apply to the facts of instant case, where the respondents do not dispute the specific case of the petitioner that the service book prepared at the time of entry of the petitioner into service, had been lost and they prepared a new service book in the year 1987. In the entire counter affidavit, they have failed to explain as from where they recorded the date of birth of the petitioner as 1.1.1947. Counsel for the respondent fairly admits that Nagar Palika is not in possession of any document on basis of which the entry regarding date of birth was made in the service book, when it was prepared in the year 1987. Counsel for the respondent fairly admits that Nagar Palika is not in possession of any document on basis of which the entry regarding date of birth was made in the service book, when it was prepared in the year 1987. All other documents, i.e., Data Base Form, the form for availing benefit under the Group Insurance Scheme, appears to have been prepared on basis of date of birth recorded in the service book, prepared in the year 1987, and therefore much significance could not be attached to these documents. This court finds considerable force in the submission of learned counsel for the petitioner that the petitioner, who was working on a class IV post as Safai Naik, was not aware of the implication of the entries made in various forms and signed the same in a routine manner. 11. Admittedly, the petitioner has not passed High School and thus, High School Certificate is not available. The petitioner has brought on record School Leaving Certificate issued by Jawahar Lal Prathmik Vidyalaya, Marahara, Etah, after he passed standard V from that school. It certifies that the date of birth of the petitioner, as recorded in the school record, was 14 April 1956. The Scholar's Register and Transfer Certificate Form are also brought on record, wherein also the date of birth of the petitioner is 14 April 1956. A supplementary affidavit has been filed today, bringing on record extract from the Register of Examination Result of Standard VIII of the year 1969-1970, wherein petitioner is shown to be promoted to the next class. A certificate from the Officiating Principal of Rani Awantibai Inter College, Marahara, Etah, from where the petitioner had passed standard VIII has also been brought on record, which certifies that the date of birth of the petitioner, as recorded in the school record, is 14 April 1956. Counsel for the respondent has already made a statement before this Court that he does not wish to file any affidavit in rebuttal to the said supplementary affidavit and therefore, prima facie, the case of the petitioner that his date of birth is 14 April 1956, stands established from the documentary evidence brought on record before this Court. Counsel for the respondent has already made a statement before this Court that he does not wish to file any affidavit in rebuttal to the said supplementary affidavit and therefore, prima facie, the case of the petitioner that his date of birth is 14 April 1956, stands established from the documentary evidence brought on record before this Court. Concededly, while preparing the service book for the second time in the year 1987, the respondent had not put the petitioner to notice nor any documentary evidence was sought from him, to facilitate recording of the correct date of birth. In the main counter affidavit, the respondents have tried to cast doubt upon the authenticity of documents filed alongwith the writ petition, but since there is no denial in response to the documents filed alongwith the supplementary affidavit and therefore, this Court is of the opinion that the entry relating to date of birth in the service book prepared in the year 1987 could not be held to be sacrosanct. Since doubts have been expressed about the authenticity of the documents on which reliance is being placed, this Court is not proceeding to record any finding itself, but directs the respondents, to undertake the said exercise, having regard to documentary evidence, upon which reliance is being placed by the petitioner before this Court. 12. Accordingly, the writ petition is allowed. The fourth respondent is directed to examine the claim of the petitioner regarding his date of birth, on basis of documentary evidence brought on record before this Court, with liberty to the petitioner to file a detailed representation annexing therewith the documentary evidence alongwith a certified copy of this order. The fourth respondent shall take decision in the matter within a period of three months from the date of production of certified copy of this order. 13. The continuance of the petitioner in service, after the date mentioned in the impugned notice, shall abide by the decision which would be taken by the fourth respondent, in compliance of this order.