Bombay High Court
Prakash S/O Narayanrao Thakare vs Sonaji Maharaj Edu. Society, Sonala, ... on 16 October, 2025
2025:BHC-NAG:11215
1610WP763-21.odt 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 763 OF 2021
Prakash Narayanrao Thakare, aged about 58 years,
Occu-Retired Supervisor, Sonaji Maharaj High School,
Sonala, Tq.Sangrampur, Dist. Buldana, R/o Sonala,
Tq. Sangrampur, District Buldana. PETITIONER
VERSUS
1. Sonaji Maharaj Education Society, Sonala,
Tq.Sangrampur, Distt.Buldana, Through four
Members of Executive Committee.
a. Prabhakar Namdeo Tapre. (DELETED)
b. Ramchandra Mahadeo Malokar, Age 75,
At Bawanbir, Tq.Sangrampur, Distt. Buldana.
c. Shrikrushna Jagdeo Thakare, Age 81, at Post
Sonala, Tq.Sangrampur, Distt. Buldana.
d. Prabhakar Yashwant Wakde, Age 67,
C/o Gajanan Sankul, Bharat Vidyalaya,
Tapdiya Road, Akola.
2. The Headmaster, Sonaji Maharaj High School,
Sonala, Tq.Sangrampur, Distt. Buldana.
3. Education Officer (Secondary), Zilla Parishad
Buldana, Tq. and Distt. Buldana.
4. Presiding Officer, School Tribunal, Amravati
Division, Amravati. RESPONDENTS
______________________________________________________________
Shri R.L. Khapre, Senior Advocate with Shri Abhishek Shukla, Counsel for the
petitioner.
Shri S.V. Deshmukh, Counsel for the respondent no.1.
Shri R.M. Tahaliyani, Counsel for the respondent no.2.
Mrs.M.S. Naik, Assistant Government Pleader for the respondent nos.3 and 4.
______________________________________________________________
CORAM : PRAFULLA S. KHUBALKAR, J.
DATE ON WHICH ARGUMENTS WERE HEARD : AUGUST 13, 2025
DATE ON WHICH JUDGMENT IS PRONOUNCWED: OCTOBER 16, 2025
JUDGMENT
RULE. Rule is made returnable forthwith and heard finally with
consent of the counsel for the parties.
1610WP763-21.odt 2 Judgment
2. Impugned in the petition is the judgment and order dated
03.11.2020 passed by the School Tribunal, Amravati (for short, 'the
Tribunal') in Appeal No.20 of 2018 by which the appeal filed by the
petitioner came to be dismissed by holding that his date of birth would be
considered as 15.09.1960 for the purpose of determining his pensionary
benefits by discarding his date of birth as 01.10.1962 which was although
recorded in his service book.
3. The facts giving rise to the instant petition are succinctly put below:-
(i) The petitioner was appointed as an assistant teacher on 17.03.1989
and at the time of his entry in the Service, his date of birth was recorded
as 01.10.1962 on the basis of a Kotwal book entry and his affidavit dated
29.12.1983.
(ii) After rendering service of about 29 years, in the year 2018, the
Respondent No.3-Education Officer served a copy of communication dated
27.03.2018 addressed to the Headmaster of the school on the petitioner
thereby informing that the petitioner's date of birth is confirmed and
approved as 15.09.1960.
(iii) Feeling aggrieved by this letter, by terming this communication as a
notice of retirement, the petitioner filed appeal before the Tribunal
bearing Appeal No.20 of 2018.
(iv) The Respondent No.1-Management appeared before the Tribunal
and raised a preliminary objection about maintainability of the appeal
alleging that the appeal under section 9 of the Maharashtra Employees of
Private Schools (Conditions of Service), Act, 1977 (for short, 'the Act of
1610WP763-21.odt 3 Judgment
1977') was not maintainable since there was no challenge to any kind of
order of dismissal or removal or otherwise termination.
(v) By order dated 11.09.2018, the Tribunal upheld the preliminary
objection and dismissed the appeal filed by the petitioner.
(vi) The petitioner challenged the aforesaid order before this Court vide
Writ Petition No.6189 of 2018 contending therein that the impugned
communication amounts to otherwise termination of the petitioner and
hence the appeal was maintainable.
(vii) By order dated 03.04.2019, this Court allowed the petition holding,
thereby, that the communication issued by the Education Officer which
was subject matter of challenge in the appeal was a decision of the
Management and resultantly held that the appeal was maintainable.
(viii) During the pendency of aforesaid writ petition, the petitioner had
continued to work and after the matter was reminded back to the Tribunal,
the petitioner remained in service and during pendency of the appeal, the
petitioner retired from service on 01.10.2020 on attaining the age of
superannuation.
(ix) The petitioner was paid with regular salary for the period for which
he had worked. Since the impugned communication has the effect to
retire the petitioner on 30.09.2018 by considering his date of birth as
15.09.1960, prejudicially affecting his entitlement for the pensionary
benefits, the appeal was contested by both the parties.
(x) On 03.11.2020, the Tribunal passed the final judgment and
dismissed the appeal.
1610WP763-21.odt 4 Judgment
(xi) The petitioner has challenged the said judgment of the Tribunal by
the instant writ petition.
4. Shri R.L. Khapre, learned Senior Advocate strenuously submitted
that the petitioner's date of birth is recorded in the service book as
01.10.1962 on the basis of extract of the birth register maintained by the
Kotwal and affidavit of the petitioner. He submitted that the said entry
was verified by the competent authority and countersigned by the
concerned headmaster and maintained for 29 years after the petitioner
entered service and therefore in absence of change/cancellation of the
said entry, the respondent no.3-Education Officer could not have
unilaterally changed the same at the fag end of his service without
affording an opportunity of hearing to the petitioner. He submitted that
in view of the controversy raised by the Head master by letter dated
17.02.2018, calling upon the petitioner to submit his explanation, the
petitioner has submitted his explanation dated 22.02.2018 and clarified
the position that the entry of date of birth was made on the basis of entry
in the Kotwal book. As regards confusion about name of the petitioner, he
had given explanation that his birth name is Ramchandra and his name
for official purposes is Prakash. On the basis of this explanation, it was
submitted that the petitioner's date of birth was rightly recorded as
01.10.1962 on the basis of Kotwal book entry and it cannot be changed
after five years of his entry in the service. As such, he submitted that the
decision of the Education Officer to change the petitioner's date of birth is
unsustainable being without any notice and opportunity.
1610WP763-21.odt 5 Judgment
5. Adverting my attention to Rule 11 of Maharashtra Employees of
Private Schools (Conditions of Service) Rules, 1981, he submitted that the
headmaster is the only authority for verification of entries in the service
book relating to date of birth, qualification, etc. and the rule requires the
headmaster to personally verify the entries. He therefore submitted that
the entry of date of birth as recorded in the service book was personally
verified by the then headmaster and the same cannot be questioned after
the petitioner has put in about thirty years of service. He also relied upon
provision contained in Annexure 53 of the Secondary School Code to
contend that once the entries of date of birth are made in service book, no
alteration is allowed, except for reasons mentioned in the said provision
and in absence of any cogent reasons, the change in date of birth made
unilaterally is arbitrary and illegal. He also relied upon the provisions of
Rule 38 of the Maharashtra Civil Services (General Conditions of Service)
Rules, 1981 and submitted that even the procedure akin to the procedure
for change in date of birth of a Government servant is not followed at all.
In support of his contentions, learned counsel for petitioner relied
upon the following case laws:-
a. Shankar Lal Versus Hindustan Copper Limited & Others [(2022) 6
SCC 211].
b. Tata Memorial Centre Versus Tata Memorial Hospital Kamgar
Sanghatana & Others [2006(6) Bom.C.R. 887].
c. Dominic Fernandes Versus Voltas Limited [2007(5) Bom.C.R.392].
d. Man Singh Versus State of Uttar Pradesh Through Secretary &
Others [2022 SCC OnLine SC 726].
1610WP763-21.odt 6 Judgment
6. Per contra, Shri S.V. Deshmukh learned counsel for the respondent
No.1-Management vehemently opposed the petition and submitted that
the petitioner cannot be entitled to claim benefits on the basis of wrong
date of birth. He submitted that the petitioner's appointment on the basis
of wrong date of birth is a fraud on his part and the petition deserves to be
dismissed since he has not approached the Court with clean hands. The
date of birth of petitioner is recorded in the service book on the basis of
Kotwal book entry, which is with respect to birth of a person by name
Ramchandra and not the petitioner. Further, the entry is based primarily on
the basis of affidavit of the petitioner and in absence of any other credible
evidence, the entry in the service book cannot be held to be conclusive.
The petitioner has suppressed material facts and he is trying to take
advantage of his own wrong. The petitioner's real date of birth is mentioned
in the Secondary School Certificate and the transfer certificate as 15.09.1960.
He submitted that he Education Officer has given due consideration to all
the relevant documents and has rightly inferred that the petitioner's actual
date of birth is 15.09.1960. In view of 'Note' appended to Schedule-E and
Rule 11 of the Rules of 1981, the entry with respect to date of birth in the
service book was required to be renewed after every five years and in
absence of any such renewal, the same cannot be considered to be
conclusive. He submitted that the instant writ petition is not maintainable
in view of the disputed questions of fact as to the actual date of birth and
actual name of the petitioner. In support of his contentions, learned
counsel for respondent no.1 has relied upon following case laws:-
1610WP763-21.odt 7 Judgment
i. Ramchandra Keshavrao Deo Versus Presiding Officer, School Tri-
bunal, Nagpur & Others [2006(2) Mh.L.J. 862].
ii. Mahadeo Pandurang More & Others Versus State of Maharashtra
& Others [2014(5) Mh.L.J. 877].
iii. Haryana Financial Corporation & Another Versus Kailash Chandra
Ahuja [(2008) 9 SCC 31].
iv. Aligarh Muslim University & Others Versus Mansoor Ali Khan
[(2000) 7 SCC 529].
7. Shri R.M. Tahaliyani, learned counsel for the respondent no.2-
Headmaster and Mrs.M.S. Naik, learned Assistant Government Pleader for
the respondent nos.3 and 4 also supported the arguments advanced by
Shri S.V. Deshmukh, learned counsel for the respondent no.1.
8. In the backdrop of the above abovementioned submissions, rival
contentions fall for my consideration. The controversy involved in the
instant petition revolves around the issue as to whether the petitioner's
date of birth is 15.09.1960 as alleged by the Management or it is
01.10.1962 as recorded in his service book as per entry in the Kotwal
Book on the basis of which, the petitioner has rendered his services till his
superannuation. Although the petitioner has retired during pendency of
the appeal, the decision of the aforesaid issue became imperative so as to
determine the entitlement of the petitioner to pensionary benefits.
9. Before dealing with the controversy, it is necessary to note some
undisputed facts. The petitioner was appointed as a trained graduate
teacher on 17.03.1989 against a clear vacancy and on completion of his
1610WP763-21.odt 8 Judgment
probation, he was confirmed in the service. The appointment of petitioner
was also approved by the Educational Officer (Secondary). The petitioner's
date of birth was mentioned in the service book as 01.10.1962 with an
endorsement and signature of the Headmaster. The petitioner has retired
on 01.10.2020 on attaining the age of superannuation. The regular salary
of the petitioner for the period for which he had worked is already paid.
However, the claim for pensionary benefits is in dispute with respect to
the period of two years on account of controversy of his date of birth.
10. It has to be seen that the petitioner's date of birth as recorded in the
service book is 01.10.1962 with a specific endorsement of the Headmaster
that the entry is made on the basis of entry of birth in the Kotwal register
and affidavit dated 29.12.1983. This entry in the service book is not
canceled throughout the period of 29 years. It is the petitioner's case that
the controversy with respect to his date of birth had begun because of the
disputes in the Management since one group wanted to remove the
petitioner from services and therefore racked up the controversy by letter
dated 17.02.2018. The petitioner submitted his reply dated 22.02.2018
stating therein that his birth name was Ramchandra and his name for
official purposes is Prakash and that his date of birth is 01.10.1962. In the
same explanation he has also stated that this correction is also published
in the official Government Gazette. After these communications were
exchanged in between the petitioner and the Management, the Headmaster
had issued a letter dated 15.03.2018 to the Education Officer suggesting
correction in the petitioner's date of birth on the basis of some documents.
1610WP763-21.odt 9 Judgment
It appears that the Education Officer thereafter arrived at a conclusion to
confirm the change of date of birth by communication dated 27.03.2018,
which was issued on 05.04.2018. The said communication was subjected
to challenge before the School Tribunal. As such, while taking the crucial
decision about changing the date of birth of the petitioner by the Education
Officer, the same was done at the fag end of service of the petitioner and
that too without issuing him any notice and any opportunity of hearing.
Since the decision to change the date of birth at the fag end of service of
an employee entails serious consequences, mere issuance of letter dated
17.02.2018 by the Headmaster, cannot be termed as notice before the
final decision of the Education Officer. Further, no reasons are mentioned
in the impugned communication to discard the explanation submitted by
the petitioner by his reply dated 22.02.2018. As such, the decision taken
by the education officer to change the date of birth of the petitioner is a
unilateral decision.
11. Pertinently, the petitioner's date of birth is recorded in the service
book as 01.10.1962 and the same is verified by the then Headmaster on
the basis of an entry of extract of Kotwal book and the affidavit submitted
by the petitioner. Rule 11 of the Rules of 1981 requires the Headmaster
to put a remark that the entries are made on verification of the original
documents. Since the said remark is reflected in the service book, it
cannot be now discarded without there being further endorsement for
change in the date of birth.
1610WP763-21.odt 10 Judgment
12. Although respondents have made serious allegations of fraud being
committed by the petitioner by mentioning wrong date of birth, it is crucial
to note that there is nothing on record to establish the fraud. There is no
material to show the steps taken by the Management to confront him about
the aforesaid discrepancy and to correct the date of birth within five years of
the petitioner's entry in the service. It is pertinent to note that although the
date of birth of the petitioner is mentioned in the Secondary School
Certificate and transfer certificate as 15.09.1960, there is no explanation
from the petitioner in this regard. Further, the affidavit dated 22.08.2014
submitted by the petitioner depicts contrary stand with the earlier affidavit
of the year 1983 about his birth name. However, this cannot be considered
as fraud on the part of the petitioner and cannot authorize the Education
Officer to take a unilateral decision to change his date of birth without of-
fering him an opportunity of hearing and depriving him of the pensionary
benefits to that extent. Pertinently, there is no enquiry initiated against the
petitioner alleging any misconduct or fraud. It is also crucial to note that
the Management has allowed the petitioner to render services for about 29
years by maintaining his date of birth as 01.10.1962, without any challenge
being raised to the same. Apart from this, by virtue of an interim order passed
by this Court in the petition dismissing the preliminary objection, the
petitioner has worked till his superannuation, considering the date of birth
as mentioned in the service book. Thus, the discrepancy pointed out by the
Management cannot outweigh the equitable considerations and deprive
the petitioner of retiral benefits for the disputed period of two years
1610WP763-21.odt 11 Judgment
considering the fact that the petitioner has actually worked for the said
period.
As regards Rule 11 of the Rules of 1981 coupled with requirement to
review the entry as per 'Note' appended to Annexure 53, it has to be noted
that nothing prevented the Management from reviewing the entry after
every five years. It is not the case of the Management that the petitioner
in any way prohibited them from reviewing the entry. Thus, the
Management is not entitled to take advantage of absence of periodic
review of the said entry.
13. Let us now deal with the case laws relied upon by the counsel for
the respective parties. To butress his contentions, Shri R.L. Khapre, learned
Senior Advocate for the petitioner placed reliance of the judgments
delivered by Single Bench of this Court in Tata Memorial Centre (supra)
and Dominic Fernandes (supra) and submitted that a unilateral change in
date of birth of an employee involves civil consequences and the change
must be made in conformity with rules of natural justice which at its
lowest minimum mandates prior notice and opportunity of hearing to the
person affected thereby.
14. In the wake of controversy involved which is related to unilateral
decision of the Education Officer to change the date of birth of the peti-
tioner at the fag end of his service, it is beneficial to make a reference to
the authoritative pronouncement of the Hon'ble Supreme Court in
Shankar Lal (supra) laying down the position about legality of unilateral
change in date of birth. While dealing with an identical controversy about
1610WP763-21.odt 12 Judgment
unilateral change in date of birth of an employee, the Hon'ble Supreme
Court has observed in paragraphs 27 and 28 as under:-
"27. We find the action of the employer lacking in authority of
law in this case on two counts. First, it fails for not adhering to the
principles of natural justice. The decision not to follow the service
book record was taken without giving an opportunity of hearing
to the appellant. The opportunity of hearing of the appellant also
accrued because the employer themselves had proceeded on the
basis that the later date i.e. 21-9-1949 was the birth date of the
appellant and this was a long established position. Moreover,
since in the own records of the employer two dates were shown,
under normal circumstances it would have been incumbent on
their part to undertake an exercise on application of mind to de-
termine in which of these two records the mistake had crept in.
That process would also have had to involve participation of the
appellant, which would have been compatible with the principles
of natural justice.
28. There are several authorities in which this Court has depre-
cated the practice on the part of the employees at the fag end of
their career to dispute the records pertaining to their dates of
birth that would have the effect of extension of the length of their
service. We are not referring to those authorities in this judgment
as the ratio laid down on that count by this Court is not relevant
for adjudication of this appeal."
As such, though the Management had relied upon the affidavits
submitted by the petitioner and raised the issue of lack of explanation
about the date of birth recorded in the Secondary School Certificate, the
fact remains that the decision taken by the Education Officer to change
the date of birth is at the fag end of service of the petitioner and without
issuing prior notice and affording an opportunity of hearing to him.
15. The learned counsel for the contesting respondents have
vehemently submitted that the petitioner has failed to prove any de-facto
1610WP763-21.odt 13 Judgment
prejudice and only allegation about breach of principles of natural justice
is not enough if the compliance of the same is a useless formality. By
placing heavy reliance on the judgments of Hon'ble Supreme Court in
Aligarh Muslim University & Others and Haryana Financial Corporation &
Another (supra), the learned counsel for the respondent no.1 submitted
that in absence of any prejudice being shown to have been caused to the
petitioner, his contentions are baseless. By inviting attention to various
paragraphs from these judgments, he submitted that in addition to breach
of natural justice, the employee has also to prove that prejudice was
caused to him. He submitted that in absence of any prejudice, issue of
notice and affording any opportunity of hearing would have been a use-
less formality.
16. The position of law as laid down in the judgments relied upon by the
respondents is not disputed. However, in the facts of the instant case, I
am of the opinion that unilateral change in the date of birth of the
petitioner and declaring him to have retired notionally prior to two years
would definitely cause serious prejudice to his rights. Apart from the fact
of substantial monetary loss on account of reduction in grant of
pensionary benefits, the petitioner would be required to carry allegation of
having committed a fraud, in case the challenge to the impugned
communication is not allowed to be raised. As such the concept of useless
formality as argued by the counsel for respondent is of no assistance in
this situation.
1610WP763-21.odt 14 Judgment
17. As regards the issue of applicability of provisions of Secondary
School Code, learned counsel for the respondent no.1 submitted that as
far as conditions of service of assistant teachers are concerned, the same
are governed by the Act of 1977 and the Rules of 1981 framed thereunder.
In support of these submissions, he relied upon the judgment in Mahadeo
(supra). The position of law laid down by this judgment is not disputed.
Since the controversy involved in this matter is about unilateral change of
date of birth, which issue is dealt with, in the judgment of the Hon'ble
Supreme Court in Shankar Lal (supra), the judgment in Mahadeo (supra)
relied upon by the respondents is of no assistance.
18. Depriving an employee of pensionary benefits by reducing or
altering his qualifying period of service entails serious civil consequences
and results in substantial prejudice to the employee concerned. It is fairly
settled position of law that pension is not a matter of charity or discretion,
it is a legal right to which the employee is entitled on account of his long
and dedicated service. Any unilateral decision that adversely impacts an
employee's entitlement to such benefits must necessarily comply with the
principles of natural justice. Failure to do so not only causes hardship to
the employee but also violates his fundamental rights. Such a unilateral
decision without affording a fair opportunity of hearing is illegal and
unconstitutional.
19. Although the parties have contested the instant proceedings
tooth and nail, it has to be seen that the petitioner has rendered his
1610WP763-21.odt 15 Judgment
services till his superannuation by virtue of interim orders passed by this
Court and he has been paid with regular salary. As such the controversy
remains with respect to the determination of period of service for the
purpose of his pensionary benefits. Thus, the fact situation demands that
a pragmatic approach needs to be adopted to meet the ends of justice.
20. Since the controversy about change in date of birth of the petitioner
was started by the Management at the fag end of his service and the same
is concluded on the basis of a unilateral decision of the Education Officer,
I am of the considered view that the petitioner could not be deprived of
his pensionary benefits for the said period in absence of any proof of
fraud. From the reasons recorded while dismissing the appeal, it appears
that the Tribunal has appreciated the documents of Secondary School
Certificate and transfer certificate and only on the basis of alleged
contradictory stand taken by the petitioner, the inferences are drawn.
However, the Tribunal had ignored the crucial aspect about the decision
of the Education Officer, being unilateral and behind the back of the
petitioner. Therefore, the judgment of the Tribunal is not sustainable.
21. On overall consideration of the factual and legal aspects, I am of
the firm opinion that the situation demands indulgence under Article 227
of the Constitution of India. The instant petition succeeds. Hence,
following order is passed:-
I. The Writ Petition is allowed.
1610WP763-21.odt 16 Judgment
II. The judgment of the School Tribunal, Amaravati dated 03.11.2020
in Appeal no.20 of 2018 is quashed and set aside. Consequently, the
letter dated 27.03.2018, which was forwarded on 05.04.2018,
impugned in the appeal before the School Tribunal is also quashed
and set aside.
III. The petitioner is entitled for retirement and pensionary benefits by
considering his date of birth as 01.10.1962.
22. Rule is made absolute in the aforesaid terms. The writ petition
stands disposed of with no order as to costs.
(PRAFULLA S. KHUBALKAR, J.)
APTE
Signed by: Apte
Designation: PS To Honourable Judge
Date: 17/10/2025 16:59:46
