Allahabad High Court
Ram Naresh And 5 Others vs State Of U.P. And 2 Others on 9 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Neutral Citation No. - 2025:AHC:51147
Case :- WRIT - A No. - 13535 of 2020
Petitioner :- Ram Naresh And 5 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Prabhav Srivastava,Suchita Mehrotra
Counsel for Respondent :- Arun Kumar,C.S.C.,Suresh C. Dwivedi
Hon'ble Donadi Ramesh,J.
1. Heard Ms. Suchita Mehrotra, learned counsel for the petitioners and Sri Arun Kumar, learned counsel for the respondents.
2. In the present case, all the petitioners were working as daily wagers in the office of the Nagar Abhiyanta, Nagar Mahapalika Allahabad. Their services were regularized by the Government Order dated 01.06.1992 and they took charge as Gangman in the aforesaid office of the respondents and are working there continuously thereafter. As the petitioners are uneducated, at the time of regularization of their services except petitioner No.4, all the other petitioners have submitted medical certificates of Chief Medical Officer, Allahabad with regard to determination of their age. The said certificates have been annexed as annexure no.1 to the writ petition. After regularization of services of the petitioners, the respondents have opened their service records and recorded their age based on the certificates of Chief Medical Officer, Allahabad.
3. In the month of October, 2025 when the respondents introduced biometric attendance device with the office of the Nagar Nigam Allahabad, surprisingly access to the petitioners was denied in the biometric attendance on account of mismatch of date of birth in the service books. Once the petitioners obtained service books and noticed that their date of birth was altered unilaterally. Questioning the said action, the present writ petition has been filed.
4. The following chart shows the date of birth recorded in the service records at the time of regularization and also the date of birth in the service records after alteration:
Sl.
No.
Name of the Petitioner
DOB certified by the C.M.O.
DOB recorded in the Service Book
Ram Naresh
03.09.1963
01.05.1961
Shiv Murat
26.09.1965
01.10.1963
Shubhash
17.09.1970
01.05.1962
Sant Lal Pal
01.01.1966
01.04.1963
Chhote Lal
08.09.1962
01.12.1961
Ram Murat
01.09.1965
01.04.1964
5. As per the above chart, services of the petitioners were reduced from one to eight years. According to the above chart, services of the petitioner no.1 were reduced by 2 years, petitioner no.2 by 2 years, petitioner no.3 by 8 years, petitioner no.4 by 3 years, petitioner no.5 by one year and petitioner no.6 by one year, respectively.
6. On perusal of the service books, it came to the notice of the petitioners that based on the requisition of Nagar Ayukt, dated 06.01.2010, Nagar Abhiyanta, Nagar Nigam Allahabad, has altered the date of birth of the petitioners in their service books on 31.03.2010. It is not in dispute that initial date of birth was recorded in the service register as per certificates issued by Chief Medical Officer, Allahabad. But based on the resolution of Nagar Nigam, the respondent has altered the date of birth of the petitioners in the service records without giving any opportunity to establish their age. Before altering the date of birth in the service records, the respondents neither provided any opportunity to the petitioners to establish their age nor subjected to any medical examination. Hence, unilaterally alternation of the date of birth/age is not only contrary to the Rules but also fails the principles of nature justice.
7. Refuting the allegations made in the writ petition, the 3rd respondent has filed counter affidavit. As per averments made in the counter affidavit, Class-IV employees were engaged on daily wages till 1990 in various departments of the Nagar Nigam. Accordingly, a seniority list of daily wage employees of each department of Nagar Nigam was prepared in the year 1990 and petitioner nos.1, 2, 3, 4, 5 and 6 were placed at Serial Nos.25, 60, 38, 42, 31 and 69 respectively. Based on the said seniority list, the Government has issued an order dated 03.02.1992 for regularizing the daily wage employees working in the Nagar Nigam Allahabad and accordingly, services of the petitioners were regularized on 01.06.1992.
8. Based on the above said directions, service books of each daily wage employees were prepared and for recording date of birth, documents were called for. Accordingly, petitioner nos.1, 2, 3, 5 and 6 have submitted their medical certificates issued by Chief Medical Officer, Allahabad on the basis on their general appearance. The petitioner no.4 has submitted transfer certificate of Class-VIII issued on 03.08.1990. Based on the said certificates, the age of the petitioners were recorded in the service books.
9. Subsequently, objections were raised by Audit and Accounts Department of Nagar Nigam, Allahabad on the regularization orders dated 01.06.1992, that there are certain employees who are completing 42 years of service on the date of their retirement. Noticing the said anomaly, objections were raised through audit objection dated 05.11.2009 and 19.12.2009. Hence the Nagar Ayukt directed the matter to be placed before the Selection Committee of Nagar Nigam, which was constituted under Section 107 (4) of U.P. Municipal Corporation Act, 1959. By its resolution dated 06.01.2010, it resolved that as per Rule 4 (1) of Nagar Mahapalika Services Rules, 1962, no person below the age of 18 years can be appointed in the service of the Nagar Nigam and cannot render more than 42 years of service.
10. Based on the said resolution of the Selection Committee dated 06.01.2010, a letter dated 27.01.2010 was issued by Up Ayukt, Nagar Nigam Allahabad to the Head of various departments who accordingly inspected the service books of each employees of the department and corrected the date of birth. According to the date of birth of the petitioners recorded in their service books, their age is assessed less than 18 years at the time of initial engagement in Nagar Nigam as daily wages employees and further if the said date of birth is accepted to be correct then initial engagement becomes void ab initio. Hence a decision has been taken by the Selection Committee of Nagar Nigam, Allahabad in correcting the date of birth by taking the age to be 18 years at the time of initial engagement. Accordingly, the dates of birth were corrected.
11. Based on the above facts, Ms. Mehrotra, learned counsel for the petitioner has submitted that the respondents have recorded date of birth/age of the petitioners at the time of regularization of their services i.e. in the year 1992 by taking appropriate certificates from the competent officer i.e. Chief Medical Officer, Allahabad. In the said circumstances, the respondents ought not to have changed / corrected the age of the petitioners without giving any opportunity to the petitioner to establish their correct date of birth / age and the respondents have also not circulated or provided the resolution dated 06.01.2010 or letter dated 27.01.2010 before altering service records of the petitioner. Hence, this unilateral action of the respondents is contrary to the principles of natural justice and the respondents ought not to have changed the date of birth/age in the service records by reducing service of the petitioners.
12. Further, learned counsel for the petitioners has argued that the said action of the respondents is contrary to the Rule 2 of Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules 1974 and also Note - 6 of FR 56. The relevant provisions are extracted herein below:
"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 of 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 of age in any circumstances whatsoever.
NOTE 6 - The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the Appropriate Authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the Appropriate Authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if -
(a) a request in this regard is made within five years of his entry into Government service;
(b) it is clearly established that a genuine bona fine mistake has occurred; and
(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service."
13. Learned counsel for the petitioner has contended that as per above said Rules, the date of birth of a government servant as recorded in the service book at the time of his/her entry into government service shall be correct date of birth or age and the same cannot be altered for any reason / circumstances, whatsoever.
14. Further as per Note - 6 of FR 56, though in exceptional circumstances the authorities are at liberty to alter date of birth of a Government servant but it should be within five years of entry into Government service. Hence, the date / age recorded in the service register cannot be altered at any circumstances and even if such alteration is required, it should be done within a reasonable time i.e. within five years from opening of the service records. But in the instant case, all the petitioners were regularized in the year 1992 and admittedly, their service records were opened in the year 1992 and the respondents have altered the date of birth / age of the petitioners in the service books in the year 2010 which is nearly after two decades which is not permissible according to the Rules.
15. Learned Standing Counsel appearing for the respondents has vehemently contended that the facts are not in dispute and according to the records, the petitioners were initially engaged in between 1979 to 1982. If their dates of birth recorded in the service books are taken into consideration, the petitioners' appointments are contrary to the Rules and void ab initio. So instead of removing the petitioners from service, based on the resolution, the date of birth / age of the petitioners was altered taking to be 18 years at the time of initial engagement.
16. In view of the said circumstances, action of the respondents in altering service records is according to the Rules only and the Selection Committee has passed the resolution on 06.01.2010 which reads as below:
"नगर निगम सेवा नियमावली-1962 में दिये गये प्राविधानों के अनुसार कर्मचारियों की नियुक्ति तथा सेवानिवृत्ति की उम्र सीमा के संबंध में
मुख्य नगर लेखा परीक्षक की टीप दिनांक 05-11-2009 तथा दिनांक 19-12-2009 पर नगर आयुक्त के आदेश दिनांक 06-11-2009 व 23-12-2009 में आदेशित किया गया था कि प्रकरण समिति के समक्ष प्रस्तुत किया जाये। नगर निगम सेवा नियमावली-1962 के नियम-4(1) में दिये गये प्राविधानों के अन्तर्गत "महापालिका के अधीन पदों पर प्रत्यक्ष भर्ती के निमित्त अभ्यर्थी की आयु, जिस वर्ष चुने जाने के लिये प्रार्थना-पत्र मांगे जायं, उस वर्ष की पहली जनवरी को 18 वर्ष से कम और 30 वर्ष से अधिक न होगी।" प्रभारी कार्यालय अधीक्षक द्वारा चयन समिति के सदस्यों के समक्ष कर्मचारियों की उम्र सीमा के संबंध में मुख्य नगर लेखा परीक्षक द्वारा परीक्षण के उपरान्त तैयार सूची प्रस्तुत की गई। चयन समिति के सदस्यों द्वारा सूची का अवलोकन किया गया जिसमें यह पाया गया कि कतिपय विभागों में सेवा नियमावली में दिये गये प्राविधानों के विपरीत कर्मचारी न्यूनतम आयु 18 वर्ष एवं अधिवर्षता आयु 60 वर्ष अर्थात् अधिकतम कुल 42 वर्ष की सेवायें पूर्ण होगी परन्तु 42 वर्ष पूर्ण होने के पश्चात् भी कार्य कर रहे हैं अथवा भविष्य में सेवानिवृत्ति होने वाले हैं। इस संबंध में चयन समिति द्वारा सर्वसम्मति से निर्णय लिया गया कि नगर निगम सेवा नियमावली-1962 के अनुसार कर्मचारी की नियुक्ति 18 वर्ष से कम होने की दशा में किसी भी प्रकार नहीं की जा सकती तथा 60 वर्ष की उम्र पूर्ण होने पर उसे सेवानिवृत्त माना जायेगा। जिन विभागों में ऐसे कर्मचारी कार्यरत हैं और 42 वर्ष से अधिक सेवा कर लिया गया है उनको प्रकरण संज्ञान में आने की तिथि से सेवानिवृत्ति माना जायेगा। साथ ही सभी विभागाध्यक्षों को निर्देशित किया जाये कि अपने विभाग में कार्यरत समस्त अधिकारियों/कर्मचारियों की सेवा-पुस्तिका का परीक्षण स्वयं करते हुए ऐसे प्रकरण पर यथोचित कार्यवाही करें। चयन समिति द्वारा नगर निगम सेवा नियमावली-1962 के अनुसार आयु के संबंध में कार्यवाही किये जाने की संस्तुति की जाती है।
ह० अपठनीय ह० अपठनीय ह० अपठनीय ह० अपठनीय
6.1.10 6.1.10 6.1.10 6.1.10
(शिव लखन यादव) (ओम प्रकाश श्रीवास्तव) (यशवन्त कुमार) (डा० अरूण कुमार)
विधि सलाहकार मु०न०ले० परीक्षक नगर अभियन्ता नगर स्वास्थ्य अधिकारी
सदस्य सदस्य सदस्य सदस्य
ह० अपठनीय
(जी०एन०शुक्ल)
अध्यक्ष, चयन समिति"
17. The Selection Committee has considered the provisions of the Municipal Corporation Service Rules 1962 and has come up with more specific Rules 4 (1) of the Municipal Corporation Service Rules, 1962 wherein the age of the candidate for direct recruitment to the post under Nagar Mahapalika was not be less than 18 years and not more than 30 years on 1st January of the year and one should not have maximum 42 of service in the Corporation. By taking those into consideration, if the date of birth recorded in the service books at the time of entry i.e. in the year 1992, the petitioners' service would not be more than 42 years in the Corporation which is quite contrary to the Rule 4(1) of the Municipal Corporation Services Rules, 1962. Hence, the respondents have altered service record by fixing 18 years at the time of their initial engagement.
18. Reply to the said contention, learned counsel for the petitioner has submitted that the said Rule 4 (1) is not at all applicable to the instant case. Here admittedly, all the petitioners' services were regularized in the year 1992, so that Rule is applicable to substantive services only if that is taken into consideration, all the petitioners' service were regularized and substantively appointed to the post / service in the respondent-Corporation only in the year 1992. Hence, at the time of regularization, whatever the age recorded based on the certificates issued by the Chief Medical Officer, the respondents ought not to have altered by quoting Rule 4 (1). By taking the date of birth / age recorded in the service books, the petitioners would not be in service more than 30 years. Hence the said Rule/contention of the respondents is not applicable to the petitioners in the instant case.
19. Learned counsel for the petitioners has further submitted that identical issue as involved in this petition has already been decided by this Court in the case of Brajvir Jha Vs. U.P. State Electricity Board, Shakti Bhawan, Lucknow and others, 1993 SCC OnLine All 353, Shiv Charan Vs. Executive Officer, Nagar Palika Parishad, Lalitpur and others, 2006 (6) ADJ 310 and UP Power Corporation Limited and others Vs. Satya Narain and others, 2005 (2) ESC 1246 (All).
20. In the case of Shiv Charan (supra), the issue involved was that initially the petitioners therein were engaged as ad-hoc employees in the year 1963 and on that point of time, the petitioner's age was 15 years in the service book i.e. recorded 02.08.1948 and in the year 2005 based on the compliant, his date of birth was altered to 1944. The said action has been assailed in Writ-A No.75411 of 2005 relying on the Rule 1974 Rules and by following observations of the Apex Court in the case of Union of India Vs. Harnam Singh (1993) 2 SCC 162, this Court has held in paragraph nos.20 and 21, as follows:
20. Here in the present case fact of the matter reveals that petitioners initial entry into service was on ad-hoc basis. Date of birth of petitioner was recorded in service book as 02.08.1948, in the year 1983 on the basis of certification made by Chief Medical Officer. While making this entry, the question which is sought to be raised today could have been raised. Respondents with them had full details of the entry of petitioner in service, and this collateral challenge is impermissible, as in spite of equipped with full material action has not been taken within reasonable period. Both the parties were equally guilty, inasmuch as it was bounden duty of respondents to ensure that no minor was provided employment. Division Bench of this Court in the case of U.P. Power Corporation Ltd. and another v. Satya Narain (Driver) and another, MANU/UP/0128/2005 : 2005 (2) ESC 1246 (DB), faced with identical situation has taken the view that in the matter of correction of age, Court has to exercise an equitable discretion in the matter and if petitioner was admitted into service below age, then both the parties are equally guilty and entry made in service book be treated as correct, and it would be inequitable to correct factual assessment on the basis of merely, what should have been done or should not have been done, after sixteen years, when factual assessment was made.
21. Here also situation is identical to the case of the petitioner. In case petitioner was admitted in service being minor and that was reflected from the date of birth of the petitioner being recorded in the service book in the year 1983 then remedial measure ought to have taken at that point of time qua the same but having permitted the situation to continue and hold the field for such long period, then respondents cannot be permitted to change the date of birth of its employee at the fag end of his career. Much stress has been laid on misrepresentation by the petitioner. Principal of the institution wherein it has been alleged that petitioner has studied upto class Vth has submitted report on 09.09.2005. In the said school leaving certificate filed at page 24 of counter affidavit parentage shown is different as at each place in the records maintained by Respondents petitioner's father name has been described as "Nanne" and in the school leaving certificate, which is sole foundation and basis for taking decision, same is described as "Nanne". Petitioner has made categorical statement of fact that he was not at all connected with institution in question but at no point of time claim of the petitioner has ever adverted to on this score and school leaving certificate has been accepted as gospel truth and impugned decision has been taken. Decision taken as such is faulty on the face of it."
21. In the case of U.P. Power Corporation Ltd. (supra), the division Bench of this Court in Special Appeal No.291 of 2005 has rejected the appeal filed by the U.P. Power Corporation confirming the orders of the learned Single Judge by holding that service book was entered up by the appellants themselves and the date of birth was entered upon basis of the factual assessment of Chief Medical Officer at the relevant point of time and it would be incorrect and unequivocal to correct factual assessment on the basis of merely what should have been done or what should not have been done, after 16 years, when the actual assessment had been made.
22. Learned counsel for the petitioners has also relied upon decision in the case of Onkar Nath Srivastava Vs. State of U.P. and others, 1990 SCC OnLine All 230 wherein this Court has interfered and set aside the orders stating it not only contrary to the Rules, 1974 and also for not providing reasonable opportunity of hearing before alteration of such date of birth in the service records.
23. Lastly, learned counsel for the petitioners has contended that as per the judgment of this Court as well as Rule 2 of Rules, 1974, action of the respondents in altering service records unilaterally is contrary, hence she requests to set aside the same by directing the respondents to continue the petitioners in service as per the age recorded in the service records.
24. Considering the submissions made by learned counsel for the petitioners and perusing the records, admittedly in the instant case, though the petitioners were engaged as daily wage employees in 1979-1981 but after a long lapse of time, their services were regularized in the year 1992 and at the time of taking the petitioners into regular services, service books were opened by the respondents themselves after obtaining appropriate certificates by determining the age of the petitioners from Chief Medical Officer, Allahabad. Based on the said certificates, the respondents have entered the age / date of birth of the petitioners in the service records without any objection and after nearly 20 years, if any objection was raised by the Audit department, the authorities should have given one more opportunity to the petitioners before taking any adverse action in altering service records. Even perusal of the resolution dated 06.01.2010 reflects that it is based on Rule 4 (1) of the Municipal Corporation Service Rules, 1962. The said provision only speaks to the service of an employee who is entitled to service after completion of 18 years. But in the instant case, services of the petitioners were regularized only in the year 1992 i.e. by taking said date of entry into service, all the petitioner have completed more than 18 years. Hence objection taken by the respondents is not applicable to the instant case.
25. On perusal of Rule 2 of the Rules, 1974, it clarifies the date of birth or age recorded in the service books at the time of entry in the Government service is to be taken as correct date of birth or the age and the same is taken for all purposes including retirement benefits. If this Court carefully reads the said Rule, it prohibits both employer and employee to make any application for altering service books. Perusal of Note - 6 of FR 56 also clarifies that the date of birth / age recorded in the service books are not subjected to any alternation though it has clarified in special circumstances, it has to be made with prior permission from the State Government that too it should be done within five years from the date of entry into service.
26. Considering the observations made by the coordinate Bench of this Court as well as division Bench of this Court in the above referred matters and also language used in Rule 2 of the Rules 1974 as also Note 6 of FR 56, alterations which were made by the respondents in service register of the petitioners are held contrary to the said Rules as well as the principles of natural justice. Therefore, the said alterations made by the respondents dated 06.01.2010 and 30.01.2010 are set aside. Further, respondents are direct to allow the petitioners to continue in service till the age of retirement as per original service records and pay all consequential benefits to them.
27. Accordingly, the instant writ petition is allowed.
Order Date :- 9.4.2025
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