Shudhir Kumar Yadav vs State Of U.P.Thru Prin.Secy. ...
2022 Latest Caselaw 9011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 6669 of 2020
 

 
Petitioner :- Shudhir Kumar Yadav
 
Respondent :- State Of U.P.Thru Prin.Secy. Ayush Lucknow And Ors.
 
Counsel for Petitioner :- Avinash Tiwari
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Avinash Tiwari, learned counsel for the petitioner as well as learned Standing Counsel for the respondents.

2. Controversy involved in the present case is with regard to date of birth of the petitioner, where by means of the impugned order dated 22.02.2020, he has been removed from service with effect from 20.02.2020, on the ground that his date of birth should have been 08.12.1959 and accordingly he would have attained age of superannuation on 07.12.2018.

3. It has been submitted by learned counsel for the petitioner that the petitioner was initially appointed in 1977 on daily wage basis on the post of 'labourer'. Subsequently, on 04.01.1986, petitioner was given regular appointment and his services were also confirmed by means of order dated 15.09.1994, against duly sanctioned permanent post of 'labourer'. The petitioner continued to discharge his duties to the full satisfaction of his superiors and therefore was given all the benefits to which he was entitled as well as increments and enhancement of pay as per recommendations made by various pay commissions.

4. It is next submitted by learned counsel for the petitioner that at the time of his regular appointment in his service book his date of birth was indicated as 24.10.1964. This fact has been admitted by the respondents in the counter affidavit and the extracts of the service book have been annexed alongwith the counter affidavit, which indicate petitioner's date of birth as 24.10.1964. It is after serving with the respondents for sufficiently long time that the respondents have sought re-determination of date of birth of the petitioner and they have come to conclusion that his date of birth is 08.12.1959 and not 24.10.1964, as recorded in his service book and on the basis of such deduction the petitioner has been removed from service as having attained age of superannuation.

5. In the counter affidavit filed by the respondents it has been stated that an inquiry committee was constituted by letter dated 04.01.2020 for determination of date of birth of the petitioner. It is also stated that petitioner was required to furnish documents on the basis of which his date of birth has been recorded in his service book, but the petitioner did not participated in the inquiry and hence the inquiry was concluded by recording petitioner's date of birth as 08.12.1959, on the basis of an application made by the petitioner on 02.12.1977, while seeking appointment as daily wager. In the said application the petitioner has disclosed his age to be 18 years and the said application was of 02.12.1977 and hence by simple calculation, the inquiry committee relying upon the application determined date of birth to be 08.12.1959.

6. The case of the petitioner is that he had submitted his Transfer Certificate before the inquiry committee and endorsement of the same also finds mention in the counter affidavit, but it seems that the inquiry committee did not considered the said record and proceeded to determine the date of birth of the petitioner to be 08.12.1959, in the most arbitrary manner.

7. The petitioner while assailing the impugned order has submitted firstly that for nearly three decades the petitioner was in service and his date of birth was never questioned and nor the entries in the service book were ever questioned and only at the fag end of his career, re-opening the issue that too after long length of time is impermissible and arbitrary. Learned counsel for the petitioner has relied upon the provisions of U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974. Rule 2 of the said Rules provides as under :

"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 examinations 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."

8. It is submitted by counsel for the petitioner that according to Rules, 1974, age as recorded in the petitioner's service book shall be deemed to be correct and no changes in the same is provided for under the Rules, 1974. He submits that said Rules are also applicable to the respondents also and hence as such there is no infirmity in the date of birth recorded in the petitioner's service book, and at he said entry could not have been changed in the manner as has been done by the respondents, and also in the peculiar facts of the present case even on merits the date of birth has been correctly recorded as 24.10.1964 on the basis of the transfer certificate (T.C.).

9. It is further submitted by learned counsel for the petitioner that while assailing the impugned order that same has been passed without affording any opportunity of hearing or issuing show cause notice or charge sheet and he has been removed from service in utter violation of principles of natural justice.

10. In support of his submissions learned counsel for the petitioner has relied upon the judgment passed by this Court in the case of Amar Nath Tewari Vs. District Inspector of Schools, Sultanpur, 2009 (27) LCD 1609 and on the judgment of this Court rendered in the case of Smt. Godhani Devi Vs. State of U.P. through Principal Secretary (Writ-A No. 20480 of 2018, decided on 11.01.2019. The Court in the case of Amar Nath Tewari (supra) has held has under :

"8. In our opinion there was no occasion for changing the date of birth as 15.6.1941 after such a long time and the fact that High School certificate was obtained by the appellant after entering into service, therefore, the plea that it cannot be given credence has no force for the reason that the same corroborated the date of birth which was recorded in the service book at the time of entering into the service. The date of birth recorded in the service book at the time of entry into service therefore has to be treated as the date of birth of the appellant."

10. Learned Standing Counsel on the other hand has supported the case of the respondents by submitting that date of birth has been wrongly recorded by the petitioner in his service book and in fact his date of birth as appearing in his application while seeking appointment as daily wager in 1977 has been deemed to be 18 years and hence according to which his date of birth is 08.12.1959 and hence prays for dismissal of the writ petition.

11. Heard learned counsel for the parties and perused the record.

12. It is noticed that by means of impugned order simplicitor, the petitioner has been sought to be removed from service. The foundation of the impugned order is the dispute pertaining to petitioner's date of birth. Prior to the passing of the impugned order, the respondents constituted inquiry committee where petitioner's date of birth was determined to be 08.12.1959, though the said inquiry committee's report has been placed on record, its contents have been disclosed in the counter affidavit.

13. The ground for changing the date of birth of the petitioner is solely the application given by him in 1977, showing his age to be 18 years. Clearly he was regularly appointed in 1986 and his services were also confirmed at the time of his regular appointment he was made to fill up his service book where his date of birth was recorded as 24.10.1964. The petitioner continued to be in service with the said age recorded in his service book and was never disputed till the time he has neared his age of superannuation.

14. Considering that the State Government has made specific rules with regard to determination of age, in which it is provided that date of birth as recorded in the service book of a Government servant shall be deemed to be final and shall not be up set in any circumstances whatsoever and consequently same rule apply with the same fervor on the respondents also.

15. The service book was in possession of the respondents for a considerable long length of time nearly more than four decades. The petitioner was granted increments and other service benefits as recommended by various pay commissions, where these facts would necessarily have been looked into and at none of the aforesaid stage any discrepancy was noticed while at the fag end of petitioner's career inquiry was initiated, contrary to Rules, 1974, in the most illegal and arbitrary manner. It is noticed that date of birth once recorded in the service book which was on record for more than three decades, cannot be up set just prior to the retirement of an employee, on the basis of an application where intentionally/unintentionally petitioner's age has been stated to be 18 years, cannot be the sole basis to change the date of birth and considering the fact that no opportunity of hearing was afforded nor any show cause notice was given to the petitioner before removing him from service, the impugned order is illegal and arbitrary. If there was some material with the respondents which necessitated interference with the date of birth then proper opportunity of hearing should have been afforded to the petitioner before passing of the impugned order.

16. In the light of above, the impugned order is illegal and arbitrary and is set aside as violative of principles natural justice. The petitioner shall be entitled to all consequential benefits.

17. The writ petition is allowed.

Order Date :- 3.8.2022/A. Verma

(Alok Mathur, J.)