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2025 DIGILAW 954 (ALL)

Yagya Narayan Sen v. State of U. P.

2025-07-17

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner and Ms. Akansha Sharma, learned counsel for the respondents and Sri Lokesh Kumar Dwivedi, learned counsel for the complainant. 2. By means of this petition filed under Article 226 of Constitution of India, petitioner has prayed for quashing the order dated 27.11.2019 whereby his salary has been withheld on the ground that upon enquiry/ investigation being conducted into original school record from the institution it transpired that petitioner had got fraudulently recorded his date of birth while entering service as 01.08.1970 whereas the date of birth recorded in the records of the school in front of the name of one Yagya Narayan was shown to be 02.11.1961. 3. From the pleadings brought on record and the documents by the respective parties it transpires that petitioner was initially engaged as daily wager on 01.11.1983 but upon detecting that he was underage being a minor, he was discontinued after two months and thereafter came to be re-engaged on a daily wages basis only in the year 1989 and having continued working for more than 240 days and he being enlisted in the muster role issued in the year 1998 at serial no.22 provided by Executive Engineer, Baadh Sector, Construction Division Ist, Mirzapur, he was given permanent appointment on the post of Chowkidaar in the work charge establishment on 10.05.1998. He was made to continue until 2001 when finally he was shifted to regular establishment and given joining on 18.01.2001. He was subsequently transferred to the ofÏce of Executive Engineer, Baghla Kanal Division on the post of Mate. 4. It transpires from the records that a third party complaint was made by a villager in the ofÏce of Executive Engineer stating therein that petitioner's date of birth was 02.11.1961. It is on the basis of this complaint that an internal inhouse enquiry was set into motion and it was found that in the service records petitioner's name was recorded as Yagya Narayan Sen with date of birth as 01.08.1970. On the basis of the medical examination report submitted by Chief Medical OfÏcer, Mirzapur his date of birth was so recorded. 5. On the basis of the medical examination report submitted by Chief Medical OfÏcer, Mirzapur his date of birth was so recorded. 5. A letter was written by the ofÏce where the petitioner was posted on 10.01.2019 directing the Executive Engineer,Baadh Sector, Construction Division, Mirzapur to submit its report and since the said division subsequently came to be merged with the Kanhar Kanal Project Division, Sonbhadra a letter was written on 12.02.2019 and 16.05.2019 from Prayagraj to the said division to furnish report. As a consequence thereof, the Executive Engineer, Kanhar Division 4th, Duddhi submitted a report on 25.06.2019 that there was no record available in the name of Yagya Narayan and when again a letter was written to investigate into the cash section of the ofÏce to find out the payment vouchers, it was in response to this, that information was given that again entire records were investigated but no document could be made available in the name of Yagya Narayan Sen. It is after this that the Executive Engineer, Baghla Kanal Project, Allahabad submitted report on 10.09.2019 that the school records of Bajrang Bali Purva Madhyamik Vidyalaya, Baghla, Shankargarh, the verification showed that Yagya Narayan Sens' date of birth was 01.08.1970 and accordingly, the Superintendent Engineer submitted report that petitioner's date of birth can be taken to be 01.08.1970. However, the matter did not end here and some further investigation an enquiry was undertaken in view of the letter written by the Superintending Engineer on 14.11.2019. This letter was written to the Chief Engineer, Irrigation, U.P., Lucknow and and as a sequal thereto an order was passed on 27.11.2019 restraining payment of salary to the petitioner. 6. Learned counsel for the petitioner has raised two points: firstly, due to mere pendency of any enquiry or investigation, salary of an employee could not have been witheld and that too without putting him to notice when such an order is having adverse civil consequences; and secondly, the Determination of Date of Birth Rules, 1974 are applicable to the establishment in question which does not permit any change in the date of birth, may be on a mere complaint, once it has been entered at the time of entry into service. 7. 7. Learned Standing Counsel on the contrary submits that the service book sufÏciently demonstrates that the word 'Sen' has been further added after the name 'Yagya Narayan' inasmuch as the signatures of Yagya Narayan as 'Yagya Narayan Sen' also differs in flow of writing especially when subsequently title given therein as 'Sen'. However, learned Standing Counsel would fairly admit that the entire service book carries the name as 'Yagya Narayan Sen' and the original date of birth recorded at the time of entry into service is 01.08.1970. 8. Having heard learned counsel for the parties and having perused the records, the point of of law that emerges for consideration before the Court is, whether the date of birth of the petitioner once entered into service record at the time of entry into service could be changed by investigating into his date of birth on a third party complaint subsequently, more especially when such an employee is not high school pass out. 9. It is not disputed to the parties that petitioner came to be employed permanently in the work charge establishment only in the year 2001 naturally, therefore, the service book was prepared for the first time in 2001 and even if some may doubt the title of 'Sen' to be not originally written at the time of preparation of service book but the entry of date of birth as 1970 has not been doubted. This entry of date of birth at the time of preparation of service book shall stand governed under the 1974 Rules because the petitioner would be taken to have enrolled as a permanent employee of the establishment only in the year 2001. So entry in service is 2001 and date of birth entered at that time was 01.08.1970. 10. I have perused the original service book and I do not find any interpolation therein. 11. It is also admitted to the respondents that the petitioner is not high school passed, nor ever furnished any certificate of this effect, nor ever applied for change of his date of birth recorded originally in service book. It is also admitted to the respondents that the petitioner entered in service as daily wager in 1989 and when finally he was given permanent appointment in 2001, he was major. It is also admitted to the respondents that the petitioner entered in service as daily wager in 1989 and when finally he was given permanent appointment in 2001, he was major. So at the time of entry as a regular member of service, petitioner was major and the period counted for the purposes of regularisation from 1989 would also disclose that he was major in 1989. Thus the argument that the petitioner was minor at the time of entry into service on the basis of his date of birth in 1970 deserves to be rejected. In the background of aforesaid facts therefore, the 1974 Rules are fully applicable. Relevant Rules of 1974 Rules are reproduced hereunder: "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. 3. Change of date of birth-Bona fide mistake.-The date of birth can be changed only if there was a bona fide mistake. The principle of estoppel will apply and hence when the Government servant had indicated a particular date of birth in his application form or any other document at the time of employment the Court should not change that date of birth." 12. From a bare reading of the aforesaid provisions, it is clear that date of birth of employee who has not passed the High School Certificate cannot be changed once originally recorded at the time of entry in service. 13. From a bare reading of the aforesaid provisions, it is clear that date of birth of employee who has not passed the High School Certificate cannot be changed once originally recorded at the time of entry in service. 13. In my above view I find support in the judgments of a coordinate benches of this court in the case of Surendra Singh v. State of U.P and Others, 2019 5 ADJ 365 , and of the Division Bench judgment in the case of Mohan Singh v. U.P. Rajya Vidyut Utpadan Ltd. And Others, 2012 (8) ADJ 383. 14. In view of the above, therefore, respondents were not justified in conducting any investigation or enquiry into the date of birth of the petitioner originally recorded in the service book as 01.08.1970. It is also admitted to the respondents that no notice or opportunity of hearing was afforded to the petitioner before passing the order impugned witholding payment of salary. The counter afÏdavit only demonstrates that during an in-house enquiry conducted petitioner was afforded opportunity. I may further refer it to the enquiry report of the Superintending Engineer dated 03.11.2017 which in its concluding part records that petitioner's date of birth should be considered as 01.08.1970 on the basis of records and the certificate issued by the Chief Medical OfÏcer. I therefore, fail to understand as to why upon a sheer third party complaint made by a villager who may be a busybody, the respondents embarked upon a fresh enquiry under the order dated 14.10.2019 passed by Superintendent Engineer. 15. Thus, the order passed by the Superintendent Engineer dated 14.11.2019 is also not sustainable in view of the aforesaid rules. I take judicial notice of the order dated 14.11.2019 also because it has laid the foundation for the order impugned dated 27.11.2019 and hence while the order dated 27.11.2019 deserves to be quashed the order dated 14.11.2019 equally deserves to be quashed. 16. Writ petition succeeds and is allowed . The order impugned dated 27.11.2019 passed by the Executive Engineer, Baghla Kanal Project, Prayagraj witholding payment of salary of the petitioner brought as Annexure-8 to the writ petition and order passed by the Superintending Engineer dated 14.11.2019 directing for fresh investigation and enquiry are hereby quashed. 16. Writ petition succeeds and is allowed . The order impugned dated 27.11.2019 passed by the Executive Engineer, Baghla Kanal Project, Prayagraj witholding payment of salary of the petitioner brought as Annexure-8 to the writ petition and order passed by the Superintending Engineer dated 14.11.2019 directing for fresh investigation and enquiry are hereby quashed. The petitioner shall be continued in service on the basis of his date of birth recorded as 01.08.1970 in the service book and shall be entitled to entire salary which has remained witheld and also the current salary until he attains the age of superannuation. 17. Service book is returned to the learned Standing Counsel.