State Of U.P. Through Prin. Secy. ... vs Emmnuel Singh & Another
2017 Latest Caselaw 895 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 

 
Case :- SERVICE BENCH No. - 467 of 2014
 

 
Petitioner :- State Of U.P. Through Principal Secretary P.W.D. Lucknow and others
 
Respondent :- Emmnuel Singh and another
 
Counsel for Petitioner :- C.S.C.
 
Counsel for Respondent :- Shishir Jain
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Virendra Kumar-II,J.

1. Heard learned Standing Counsel for petitioners and Sri Shishir Jain, learned counsel for respondents.

2. This writ petition under Article 226 of Constitution of India is directed against judgment and order dated 21.06.2012 passed by State Public Services Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Claim Petition No. 1026 of 1999.

3. Admittedly, date of birth recorded in service book of claimant-respondent is 25.12.1929. He was appointed in service as Roller Driver in 1972 and at no point of time, date of birth recorded in service book was ever disputed by him. Claimant-respondent, however, was working on deputation with U.P. Rajkiya Nirman Nigam Limited, Lucknow (hereinafter referred to as "Nigam"), Chikitshalay Ikai, Haldwani wherefrom he was not retired on attaining the age of superannuation in December, 1989 and was allowed to continue even thereafter.

4. The service book and other record of claimant-respondent was received by Office of Executive Engineer (Construction Division), Public Works Department (hereinafter referred to as "PWD") alongwith letter dated 23.12.1992 when it came to know that claimant-respondent has been allowed to continue even after attaining the age of superannuation in December, 1989. Consequently, an inquiry was made by Executive Engineer by letter dated 30.01.1993 from Additional Project Manager of Nigam as to why claimant-respondent was not retired on 30.12.1989 in view of his date of birth mentioned in the service book.

5. An official from Nigam vide letter dated 27.03.1993 informed that claimant-respondent submitted a school leaving certificate of Christian Primary School, Jhansi of having passed Class-IV and in the said certificate dated 18.11.1991, his date of birth was mentioned as 25.12.1950 and the employee stated that his date of birth mentioned in service book was not correct and requested for correction of date of birth in the service book.

6. Executive Engineer, however, found that no such correction of date of birth in service book was permissible in view of Government Order dated 01.09.1986 and 28.09.1974 read with U.P. Recruitment to Service Determination of Date of Birth Rules, 1974 (hereinafter referred to as "Rules, 1974") and consequently wrote vide letter dated 19.04.1993 that no such correction is permissible thereupon General Manager of Nigam vide letter dated 24.08.1993 informed Executive Engineer that date of birth of claimant-respondent in the service book was 25.12.1929 and proceeding for his retirement is under process. Consequently, vide order dated 21.10.1993, Executive Engineer declared that claimant-respondent shall be treated to have retired on attaining the age of superannuation on 25.12.1989 w.e.f. 31.12.1989 and service undertaken by Nigam thereafter from claimant-respondent is wholly irregular and for that PWD is not responsible but entire responsibility would lie upon Nigam, Lucknow.

7. Consequently, Additional Project Manager of Nigam vide order dated 26.10.1993 made claimant-respondent to retire w.e.f. 31.12.1989. Claimant-respondent in para 4.17 of claim petition has said that he made several representations requesting for correction of his date of birth but he was ultimately rejected vide order dated 25.08.1998. Thereafter, Claim Petition No. 1026 of 1999 was filed which has been allowed by Tribunal and order dated 21.10.1993 has been set aside.

8. Tribunal has declared that date of birth of claimant-respondent shall be treated to be 25.12.1950 hence he will be deemed to have continued in service upto 31.12.2010.

9. Tribunal has observed that claimant-respondent was not aware of his wrong recording of date of birth in the service book else there was nothing to benefit him from wrong recording of date of birth. It has however ignored the fact that in the service book of claimant-respondent, signature of claimant-respondent is there and his date of birth is clearly mentioned as 25.12.1929. There is no alternation or overwriting, etc. on the said date of birth which is clearly mentioned in the service book and duly signed by claimant-respondent in English showing that he was literate enough to read entries in his service book and well aware of date of birth mentioned in the service book when it was prepared as it was duly signed by him. Hence findings recorded by Tribunal that claimant-respondent probably was not aware of wrong recording of date of birth in service book is perverse and it has proceeded on assumption.

10. Moreover, documents produced by claimant-respondent showing a different date of birth are said to have been issued in 1991 and onwards. Obviously, these documents could not have been placed before authorities concerned when claimant-respondent was appointed in PWD in 1972. Written statement filed by petitioners before Tribunal also shows that copy of service book contained signature of claimant-respondent and at no point of time, he ever raised dispute regarding his date of birth in service book.

11. After attaining age of superannuation, no correction in date of birth mentioned in the service book was admissible. One of the reason that favoured with Tribunal to allow claim petition is that the date of birth, if would have been 1929, claimant-respondent was overage and could not have been appointed on 01.03.1971. We have not been informed of any statutory provision whereunder appointment of claimant-respondent as Roller Driver/Mixture Operator w.e.f. 01.03.1971 was barred on account of age as such Driver.

12. Moreover, even otherwise, Tribunal has also failed to consider that claimant-respondent was appointed as Roller Driver/Mixture Operator and if his contention is accepted to be correct, he was 21 years 2 months and a few days in age on the date of his appointment which was made w.e.f. 01.03.1971. At what stage, claimant-respondent got training and license to become driver for driving specialized kind of vehicle; has not been disclosed anywhere.

13. Be that as it may, the fact remains that in the service book claimant-respondent has duly signed in English and he was literate enough to read entries made in service book which mention his date of birth as 25.12.1929. The admitted fact that he never raised any dispute about correctness of said date of birth till 1992 also make it clear that he was well aware of his date of birth which was correctly mentioned in service book but tried to take advantage of a situation created by the fault of officials of Nigam who allowed him to continue even after attaining the age of superannuation.

14. No correction in date of birth is allowed at the fag end of retirement or after a long time when incumbent concerned has been appointed, his service book has been prepared mentioning date of birth and no dispute was raised by him.

15. In Government of Andhra Pradesh & another Vs. M. Hayagreev Sharma 1990 (2) SCC 682, Court held that date of birth recorded in service book cannot be altered after long time and that too at the fag end of retirement.

16. In Executive Engineer, Bhadrak (R&B) Division, Orissa & others Vs. Rangadhar Mallik 1993 Suppl. (1) SCC 763, it was held that representation made for correction in date of birth near about at the time of superannuation shall not be entertained. The aforesaid law was reiterated in Union of India Vs. Hari Ram Singh 1993 (2) SCC 162 and Court held:

"A Government servant, who has declared his age at initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in position of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government Servant must do so without any unreasonable delay."

17. Court deprecated the practice of entertaining representations or claim of employees with respect to correction of date of birth after long time and particularly at the time of retirement on the basis of the date of birth recorded in the service book. Same view was reiterated in Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran 1994 Suppl. (1) SCC 155 : State of Tamilnadu Vs. T.V. Venugopalan 1994 (6) SCC 302 and State of Orissa Vs. Ramanath Patnaik 1997 (5) SCC 181. It was held that when entry was made in service book when employee was in service and he did not make any attempt to get entry corrected, any amount of evidence produced subsequently, particularly at the time of retirement, would be of no consequences and should not be entertained. The above position was also noticed with approval in State of U.P. & others Vs. Smt. Gulaichi 2003 (6) SCC 483 and all the aforesaid judgments have been referred to and followed recently, in State of Gujrat & others Vs. Vali Mohd. Dosabhai Sindhi 2006 (6) SCC 537; State of Maharashtra and another Vs. Gorakhnath Sitaram Kamble and others, 2010(14) SCC 423; and, Bharat Coking Coal Ltd. and others Vs. Chhota Birsa Uranw, JT 2014(6) SC 551.

18. In view of above exposition of law, we find that judgment impugned in this writ petition cannot be sustained.

19. In the result, writ petition is allowed. Impugned judgment dated 21.06.2012 is hereby set aside. Claim Petition No. 1026 of 1999 of claimant-respondent is hereby dismissed.

Order Date :- 19.5.2017

Shubham