Allahabad High Court
Baboo Mukesh vs State Of U.P.Through Principal ... on 21 May, 2013
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R
Court No. - 10
Case :- SERVICE SINGLE No. - 5598 of 2009
Petitioner :- Baboo Mukesh
Respondent :- State Of U.P.Through Principal Secretary,
Petitioner Counsel :- Brijesh Kumar,A.K.Bajpai,Maneesh Kumar Singh
Respondent Counsel :- C.S.C.,Namit Sharma,S.P.Singh
Hon'ble Devendra Kumar Upadhyaya,J.
Heard Sri Maneesh Kumar Singh, learned counsel for petitioner and Sri Namit Sharma, learned counsel appearing for respondent nos.2 to 4.
The issue involved in the instant writ petition is as to whether date of birth of the petitioner has correctly been recorded in the records of Municipal Corporation, Lucknow and as to whether he has been rightly allowed to retire on his attaining the age of superannuation treating his date of birth to be 17.06.1952.
The petitioner was selected for appointment on the post of Line-man by the then Nagar Mahapalika, Lucknow and by means of order dated 06.03.1979 he was appointed on the said post. The educational qualification of the petitioner is Class 9th passed. He is also possessed with two years course of training at Industrial Training Institute, Lucknow in the trade of Wireman.
The petitioner has averred in the writ petition that in the application form for appointment and in all the certificates pertaining to his educational qualification submitted by him his date of birth is recorded as 17.06.1954. However, while incorporating the same in his service book authorities of the Nagar Mahapalika (Now Nagar Nigam) have wrongly mentioned it to be 17.06.1952 in place of 17.06.1954. The petitioner gave a representation on 28.09.1993 requesting the respondent no.4-Executive Engineer, Electrical/ Mechanical, Nagar Nigam, Lucknow to correct the date of birth in his service book in accordance with the date of birth recorded in the testimonials submitted by him in the department. However, the said request of the petitioner was not considered. The petitioner ultimately again represented on 18.06.2009 before the respondent no.4 seeking correction of his date of birth in his service book and prayed that it be mentioned as 17.06.1954 in place of 17.06.1952. On the said representation made by the petitioner, the order dated 11.08.2009 has been passed by the respondent no.4-Executive Engineer, Electrical/ Mechanical, Nagar Nigam, Lucknow whereby claim of the petitioner for correction of the date of birth has been rejected. It is this order dated 11.08.2009 which is under challenge in the instant writ petition.
Learned counsel for petitioner while arguing the case has drawn attention of the Court on the noting which is contained in annexure no.11 to the writ petition wherein it has clearly been indicated that date of birth of the petitioner as mentioned in all the certificates is 17.06.1954 whereas in the service book the same has been recorded to be 17.06.1952.
The Court, looking into the noting as contained in annexure no.11 to the writ petition, had summoned the record from the respondents, which has been produced. From a perusal of the original record produced by the respondents, it reveals that at page no.4 there exists an extract of scholar's register and the transfer certificate issued by the Principal of Ram Bharosey Maiku Lal Higher Secondary School, Telibagh, Lucknow wherein date of birth of petitioner has been recorded as 17.06.1954.
The record also contains provisional certificate of two years engineering course completed by the petitioner at Industrial Training Institute, Aliganj, Lucknow issued by the Directorate of Training & Employment, U.P which also records the date of birth of petitioner to be 17.06.1954. There are other documents which clearly record his date of birth as 17.06.1954.
The Court has also perused the original provisional certificate issued by the Directorate of Training & Employment, Government of U.P. wherein date of birth of the petitioner has been recorded to be 17.06.1954. The National Trade Certificate issued by the Ministry of Labour, Government of India also contains the date of birth of the petitioner as 17.06.1954. Similarly, the scholar's register and transfer certificate issued by the Principal of Ram Bharosey Maiku Lal Higher Secondary School, Telibagh, Lucknow way back in the year 1976 also contains the date of birth of petitioner as 17.06.1954.
On the basis of aforesaid documents, learned counsel for petitioner has stated that in fact the date of birth of the petitioner is 17.06.1954. While preparing the service book it was wrongly recorded as 17.06.1952. Learned counsel for petitioner has also stated that treating the date of birth of the petitioner as 17.06.1952 he has been retired in the month of June, 2012.
On the other hand, Sri Namit Sharma, learned counsel appearing for Nagar Nigam has vehemently argued placing reliance on the Government Order dated 08.06.1975 wherein it has been provided that date of birth of the employees other than the employees of centralized service of Nagar Mahapalika shall be recorded as per date of birth recorded in certificate of the high school or equivalent examination and further that no application for correction in the date of birth shall be entertained in any circumstances. The aforesaid Government Order dated 08.06.1975 as communicated by the State Government to the Urban Local Bodies is reproduced herein below:-
"izfrfyfi i= la[;k&6277 ¼2½@,@11&[email protected]@[email protected]] fnuakd y[kuÅ 8 twu] 1993A isz"kd] Jh g`n; ukjk;.k JhokLro] mi lfpo] mRrj izns'k 'kklu] uxj ikfydk vuqHkkx&4A lsok esa] iz'kkld] uxj egkikfydk] [email protected]@[email protected][kuÅ@okjk.klhA
fo"k;% egkikfydk deZpkfj;ksa dh tUe frfFk dk la'kks/ku A
eq>s vkidk /;ku mRrj izns'k uxj egkikfydk lsok fu;ekoyh] 1962 ds fu;e 47 ds mifu;e ¼7½ dh vksj vkd`"V djrs gq, ;g dgus dk funs'k gqvk gS fd egkikfydk ds vdsUnzhf;r lsok ds deZpkjh dk tUe fnukad tSlk fd mlds gkbZLdwy ;k led{k ijh{kk esa mRrh.kZ gks tkus ds izek.k&i= esa vf/kfyf[kr gks vFkok mijksDr mi fu;e esa fufnZ"V vU; fdlh vk/kkj ij mldh lsokiqfLrdk esa lsok esa izfo"V gksus ds le; vf/kfyf[kr gks] mldk Bhd tUe fnukad ekuk tk;sxk rFkk mlds la'kks/ku esa dksbZ vkosnu i= ;k izR;kosnu fdUgha Hkh ifjfLFkfr;ksa esa] pkgsa tks Hkh gks xzg.k ugh fd;k tk;sxkA lsok iqfLrdk esa vafdr tUe frfFk ds vk/kkj ij vfro;rk vk;q iwjh dj ysus ij deZpkjh dks vfuok;Z :i ls lsok fuo`Rr dj fn;k tk;sxkA
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g0 g`n; ukjk;.k JhokLro mi lfpo 08-07-75
Submission of learned counsel for Nagar Nigam, Lucknow appears to be half-baked for the reason that the said Government Order dated 08.06.1975 also provides the procedure for recording date of birth of an employee working in a non-centralized service. Perusal of aforesaid Government Order dated 08.06.1975 reveals that date of birth of an employee working in a non-centralized service is to be recorded in terms of provision contained in Rule 47 (5) Uttar Pradesh Nagar Mahapalika Sewa Niyamavali, 1962 (hereinafter referred to as 'Niyamavali, 1962') (wrongly mentioned as sub rule 7) and further that date of birth has to be recorded on the basis of date of birth available in the pass certificate of high school examination or an equivalent examination or on the basis of any other ground mentioned in sub rule 5 of Rule 47 of Niyamavali, 1962. Sub Rule 5 of Rule 47 of the Niyamavali, 1962 runs as under:-
"(5) For the purpose of this rule the age of a servant shall be determined with reference to his date of birth as recorded in the High School Examination certificate or in the certificate of an examination recognized by Government as equivalent thereto or if there is no such certificate with reference to his date of birth as recorded in the Hindustani Final Examination or Junior High School Examination or as entered in the Scholar's register of any institution recognized by Government. Where there is no such authentic record of the age of a servant or where the servant has not studied in any recognized institution it would be permissible to examine other reliable documentary evidence such as entries in the service book, certified copy of entry in the birth register, the affidavit of the parent or guardian, the horoscope or such other record or the medical certificate by the Civil Surgeon of the district. The decision of the Appointing Authority as to the correct age of a servant shall be final.
List of servants of the Mahapalika who will reach the age of retirement or who are on extension of service in the financial year:
1.Serial No.
2.Name
3.Designation
4.Salary
5.Year
6.Months
7.Date on which he reaches the age of retirement or the extension expires
8.Length of service on March 31 next
9.Recommendation of the immediate superior authority
10.Orders passed by the Appointing Authority"
Thus, sub rule 5 of Rule 47 of the Niyamavali, 1962 provides that the date of birth of an employee is to be recorded as recorded in the high school examination certificate or in the certificate of an examination recognized by Government as equivalent thereto or if there is no such certificate with reference to his date of birth as recorded in the Hindustani Final Examination or Junior High School Examination or as entered in the Scholar's register of any institution recognized by Government.
Sub rule 5 of Rule 47, in other words, prescribes an unambiguous provision that date of birth of an employee is to be recorded on the basis of some documentary evidence to be produced by the employee concerned.
In the instant case admittedly it is clear from perusal of the original record that there is no document available on record which shows the date of birth of the petitioner to be 17.06.1952; to the contrary all the documents available on record reveal the date of birth of the petitioner to be 17.06.1954.
The Court has perused the originals of certain documents issued by Directorate of Training and Employment, State of U.P, Ministry of Labour and Government of India and the Principal of recognized Higher Secondary School wherein every where date of birth of the petitioner has been recorded to be 17.06.1954.
Thus, from the aforesaid discussion, it is clear that the authorities while recording the date of birth of the petitioner in the service book have clearly mistook his date of birth as 17.06.1952 in place of 17.06.1954. In absence of any document/ certificate issued by any authority where date of birth of the petitioner is recorded as 17.06.1952, it was not legally permissible for the authorities of the Nagar Nigam to have recorded the date of birth of the petitioner in his service book as 17.06.1952.
Even during the course of hearing, learned counsel for Nagar Nigam has failed to produce any document available on record of Nagar Nigam wherein date of birth of the petitioner is shown as 17.06.1952. However, he has vehemently tried to defend the order passed by the Executive Engineer, Electrical/ Mechanical, Nagar Nigam, Lucknow on 11.08.2009 whereby claim of the petitioner regarding date of birth has been rejected stating that at no point of time, even at the time of his promotion the petitioner has ever objected to the alleged wrong recording of date of birth and hence at this juncture, he cannot be permitted to seek any correction.
Learned counsel for respondents has placed reliance on the judgment of this Court in the case of Triveni Prasad vs State of U.P. and others, reported in 2012 (1) LBESR 827 (Alld), wherein it has been held that if the person has entered into service after passing high school examination, the date of birth recorded in the service book shall be deemed to be correct.
The aforesaid judgement does not have any application in the instant case for two reasons, namely, (1) the said case of Triveni Prasad (supra) is based on U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974 which are admittedly applicable in the case of government servants whose service conditions are governed by Rules framed under Article 309 of the Constitution of India whereas the instant case has to be governed by the relevant provisions of Niyamavali, 1962 as admitted in the Government Order dated 08.06.1975. (2) The case of Triveni Prasad (supra) was a case where employee concerned was having high school passed qualification to his credit whereas in the instant case the petitioner is not high school passed; rather after passing class 9th, he has obtained an ITI certificate in the trade concerned.
Sri Namit Sharma, learned counsel for respondents has placed reliance on yet another judgement of Hon'ble Apex Court in the case of State of Madya Pradesh and another vs Premlal Shrivas, reported in (2011) 2 SCC (L&S) 574 and has submitted that it has been observed in the said case that in the matters involving correction of date of birth of a government servant, particularly on the eve of superannuation or at the fag end of his career, the Court or the Tribunal has to be circumspect cautious and careful while issuing direction for correction of date of birth.
As regards the submission of learned counsel for respondents based on the judgement of State of Madya Pradesh and another vs Premlal Shrivas (supra), it may be indicated at this juncture that original record relating to petitioner's appointment, preparation of service book etc. has been perused by the Court itself with care and necessary caution and it has been found that there is no document available on record which shows the date of birth of the petitioner to be 17.06.1952. Sub rule 5 of Rule 47 of Niyamavali, 1962 mandates the authority concerned in unambiguous terms to record date of birth on the basis of documents mentioned therein. Thus, in absence of any document available in the record of respondents revealing date of birth of the petitioner to be 17.06.1952; to the contrary the document available on record showing date of birth as 17.06.1954, the Court is of the considered opinion that date of birth of the petitioner at the very inception was wrongly recorded by not conforming to the statutory provision contained in sub rule 5 of Rule 47 of Niyamavali, 1962.
Thus, case at hand is not a case of correction of date of birth on the basis of some document procured by the employee concerned after his date of birth was recorded in his service book; rather it is a case of wrong recording of date of birth of the petitioner, which, as observed above, is in clear violation of Rule 47 (5) of Niyamavali, 1962.
As already observed above, the Court has also perused the original certificates produced by learned counsel for petitioner in the Court wherein also in all documents date of birth of the petitioner is recorded as 17.06.1954.
In view of the discussions made and reasons given above, the only indefeasible conclusion which can be drawn is that while recording date of birth of the petitioner the respondents have not followed the provision contained in sub rule 5 of Rule 47 of Niyamavali. The reasons, thus, indicated in the impugned order dated 11.08.2009, passed by Executive Engineer, Electrical/ Mechanical, Nagar Nigam, Lucknow are not tenable and hence, writ petition deserves to be allowed.
Accordingly, the writ petition is allowed and the impugned order dated 11.08.2009, passed by Executive Engineer, Electrical/ Mechanical, Nagar Nigam, Lucknow as contained in annexure no. 1 to the writ petition is hereby quashed. The respondents are directed to correct the date of birth of the petitioner in view of the observations made herein above and to allow him to work and discharge his duties on post and to pay him his salary till he attains the age of superannuation as per law treating his date of birth to be 17.06.1954. The necessary corrections in the service book of the petitioner in terms of the instant judgement shall be made by the respondents within a period of one month from the date certified copy of this order is produced before the competent authority of Nagar Nigam, Lucknow. Thereafter petitioner shall be allowed to join his duties within two weeks.
Treating the date of birth of the petitioner to be 17.06.1952, he was retired in the month of June, 2012 and since then he has not been working on the post. However, as a result of allowing the instant writ petition, the petitioner shall be entitled to be deemed to have continued in service for the period starting from 01.07.2012 till the date of his joining in terms of this judgement.
As regards payment of salary to the petitioner for the period starting from 01.07.2012 till the date his joining is allowed by Nagar Nigam, Lucknow, the petitioner will be at liberty to make representation in that regard to the competent authority in the Nagar Nigam, Lucknow, who shall take decision in the matter within two months.
Order Date :- 21.5.2013 Renu/-
