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Madhya Pradesh High Court · body

2019 DIGILAW 537 (MP)

Rang Lal Joshi v. State of M. P.

2019-07-24

B.K.SHRIVASTAVA, SUJAY PAUL

body2019
ORDER : Sujoy Paul, J. 1. This petition filed under Article 226 of the Constitution of India takes exception to the order dated 21-3-2009 (Annexure P-10) whereby the respondent No. 3 in obedience of order of treasury has passed the impugned order dated 21-3-2009 and decided to recover certain amount from the retiral dues of the original petitioner. 2. The petitioner’s date of birth was initially recorded in the service book as 6-11-1937. The same was corrected on petitioner’s representation as 21-8-1943. The petitioner retired on attaining the age of superannuation on 31-8-2003. 3. After petitioner’s retirement, the treasury office took an objection about altering the date of birth in the service record of the petitioner. The treasury office by order dated 26-8-2005, raised objection on the action of altering the date of birth. Thereafter, pursuant to the order of treasury office, the District and Sessions Judge, Indore passed the impugned order and opined that petitioner should have been retired on 30-11-1995 on the basis of previously recorded date of birth i.e. 6-11-1937. Since he worked beyond his age of entitlement, the pay and allowances received by him beyond 30-11-1995, are liable to be recovered. The said amounts were quantified and decided to be recovered from the retrial dues. This order is called in question in this petition and this Court by order dated 15-6-2009, stayed the effect and operation of this order. In the meantime, the original petitioner died and legal representatives were substituted. 4. Shri Rehman, Government Advocate submits that the respondent/State has erred in not filing the separate return and adopting the return of remaining respondents. At this stage, after 10 years from filing this petition, he prayed for time to file return. The said prayer is already rejected by this Court. At this stage, he placed reliance on paragraph 5.5 of the petition and the circular dated 19-1-2005 to bolster his contention that date of birth once recorded in the service record, cannot be altered. 5. Shri Sanghi by taking this Court to the return filed by the respondent Nos. 2 and 3 submits that on an application filed by the petitioner seeking alteration in the date of birth, a conscious decision was taken by the then District Judge, Indore pursuant to which date of birth was duly altered in the service record. 5. Shri Sanghi by taking this Court to the return filed by the respondent Nos. 2 and 3 submits that on an application filed by the petitioner seeking alteration in the date of birth, a conscious decision was taken by the then District Judge, Indore pursuant to which date of birth was duly altered in the service record. On the strength of the said altered date of birth, petitioner had a right to continue till 31-8-2003. Thus, order of recovery is arbitrary and bad in law. 6. Shri Shroti placed reliance on the return. No other point is pressed by the parties. 7. We have heard the parties at length and perused the record. 8. At the outset, the letter dated 19-1-2005 on which reliance is placed, was issued after retirement of the petitioner on 31-8-2003. In our view, when the notices of this case were served on the State Government/Department, it was the time when Department should have carefully read the pleadings and decided whether they need to file separate reply or not. We are unable to appreciate this practice where return of remaining respondents was borrowed in 2010 and after 9 years, now time is prayed for to file a separate return. If this practice is permitted, pleadings will never complete and matters will start again from scratches when the matters are listed for final hearing. We deprecate this practice of praying for time to file return after 10 years. 9. Respondent Nos. 2 and 3 have filed the return and averred as under :— “4(a) The answering respondents submits that the date of birth of the petitioner as recorded in the service book at the time of his appointment was 6-11-1937. It appears that on his representation, the District Judge, Indore, vide order dated 23-5-1984 corrected the date of birth to 21-8-1943 on the basis of School Certificate and necessary correction was made in the service book. The petitioner accordingly retired on 31-8-2003 on attaining the age of superannuation. 4(b) It is submitted that correction in the date of birth was accepted by the respondent-District Judge on the basis of the date of birth as recorded in the Higher Secondary School Certificate Examination Course, 1963. It is not an absolute rule of law that an entry of date of birth once made in the service book at the time of appointment cannot be altered. It is not an absolute rule of law that an entry of date of birth once made in the service book at the time of appointment cannot be altered. If there is sufficient proof of date of birth such as Higher Secondary School Certificate Examination, the entry with regard to date of birth in the service book can always be corrected. The District Judge being the Competent Authority for recording change in date of birth in the service book and he having passed the order long back in the year 1984 correcting the date of birth of the petitioner as 21-8-1943 instead of 6-11-1937, the date of birth has to be accepted as 21-8-1943. It is also not a case that the date of birth has been changed just few years before superannuation of the petitioner. The petitioner has actually worked up to the date of superannuation i.e. on 31-8-2003. His retiral benefits have also been paid on that basis. 5. The answering respondents submit that the Treasury Officer is not correct in stating that the date of birth as written in the service book at the time of appointment of a government servant would be final. It may be mentioned here that the Treasury Officer has himself recommended the case of the petitioner treating as a special case and sanction from the finance department be obtained. However, no decision having been taken in the matter so far, the respondent District Judge, Indore, had no option but to pass the impugned order dated 21-3-2009 (Annexure P-10) directing recovery. It is submitted that finalization of pension has to be done by the Government.” (Emphasis supplied) 10. A plain reading of the stand of respondent Nos. 2 and 3 makes it clear that argument of Shri Sanghi has substantial force. The decision to alter the date of birth was taken by the concerned District Judge, Indore and in furtherance thereof, petitioner continued in employment till 31-8-2003. 11. Since date of birth was duly permitted to be altered by the competent authority, no fault can be found in the action of the petitioner to continue in employment on the basis of altered date of birth. Indisputably, the petitioner performed his duties till the retirement on 31-8-2003. If recovery is made from year 1995 to 2003, it will amount to extracting the work from petitioner without any remuneration. Indisputably, the petitioner performed his duties till the retirement on 31-8-2003. If recovery is made from year 1995 to 2003, it will amount to extracting the work from petitioner without any remuneration. Such action will amount to “Begar” which is prohibited under the Constitutional scheme of India. 12. For these cumulative reasons, we cannot countenance the impugned order dated 21-3-2009 (Annexure P-10). The impugned order is set aside and the petition is allowed. Petition allowed.