Gujarat High Court

Afiniyabhai Khalpabhai Gamit vs Gujarat State Electricity Corporation ... on 11 July, 2025

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                             C/SCA/11412/2018                                            ORDER DATED: 11/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 11412 of 2018

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                                           AFINIYABHAI KHALPABHAI GAMIT
                                                       Versus
                                  GUJARAT STATE ELECTRICITY CORPORATION LIMITED
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                       Appearance:
                       MR GAJENDRA P BAGHEL(2968) for the Petitioner(s) No. 1
                       MS. NIDHI TRIVEDI FOR MR DIPAK R DAVE(1232) for the Respondent(s)
                       No. 1
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                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 11/07/2025
                                                              ORAL ORDER

1. The present petition is filed for seeking the

following reliefs:

"A) YOUR LORDSHIPS be pleased to admit and allow this petition;

(B) YOUR LORDSHIPS be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned office order dated 9.7.2018 (Annexure-A) passed by respondent qua the petitioner, as being illegal, without any basis and violative of Art. 14 of the Constitution of India;

(C) Pending the admission, hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to restrain the respondent from relieving/ retiring the petitioner w.e.f.

31.7.2018 in pursuance to the impugned office order dated 9.7.2018 and further be pleased to stay the impugned office

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order dated 9.7.2018 passed by respondent qua the petitioner, in the interest of justice;

(D) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as may be deemed fit and proper, in the interest of justice and equity;"

2. Brief facts of the case as stated in the present

petition are as under:

2.1 The petitioner is working as helper in CHP

Operation of the respondent corporation. The petitioner

had joined the services of the respondent w.e.f. 1.4.1982.

It is the case of the petitioner in this petition that at

the time of joining the services, the petitioner did not

have the birth certificate. It is further the case of the

petitioner in this petition that the date of birth of the

petitioner is 1.6.1963 and the same is reflected in the

school leaving certificate. The petitioner had undergone

studies from Kelai Prathmik Shala, which issued the

school leaving certificate to the petitioner on 26.1.1982. It

is further the case of the petitioner in this petition that

this school leaving certificate was produced by the

petitioner before the respondent at relevant time.

However, the respondent did not take the same on

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record as the same did not contain the rubber stamp of

the school. It is further the case of the petitioner in this

petition that the respondent referred the petitioner to

Civil Hospital for determining the of the probable date of

birth petitioner. It appears that the Civil Hospital

determined the probable date of birth of the petitioner as

01.07.1958 and accordingly, the same is reflected in the

Identity Card issued by the respondent.

2.2 It is further the case of the petitioner in this

petition that on 24.6.1996, the petitioner applied for birth

certificate and the Kelai Gram Panchayat issued birth

certificate to the petitioner and on 2.7.2018, the

petitioner has also applied and received Pedhinama of

Khalpabhai Thagabhai Gamit (father). The Pedhinama

which is issued 2.7.2018 by the competent authority also

reflect the age of the petitioner as 55 years. It is further

the case of the petitioner in this petition that on bare

perusal of the Pedhinama, it would reflect that the

petitioner is shown at Sr. No. 6, while the elder brother

of the petitioner viz. Shardiyabhai is shown at Sr. No.5,

whose age is shown as 56 years. This Shardiyabhai is

still in service. Thus, it is obvious that the age of the

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petitioner cannot exceed 56 years. It is further the case

of the petitioner in this petition that the petitioner also

applied and received copy of School Leaving Certificate

on 7.7.2018 from Kelai Prathmik Shala which reflect the

birth date of the petitioner as 1.6.1963. Thus, from the

above facts and documents on record, it is clear that the

age of the petitioner being 55 years is clear from the

school leaving certificate and the Pedhinama. Considering

the birth date of the the petitioner being 1.6.1963,

petitioner is to retire on 1.6.2023. However, as per the

office order, the petitioner has attained the age of

superannuation on 1.7.2018 and the persons referred in

the office order will be relieved w.e.f. 31.7.2018. It is

further the case of the petitioner in this petition that

the respondent has misconstrued the age of the

petitioner as 01.07.1958 and on that basis, the

respondent is proposing to relieve/retire the petitioner on

the ground of superannuation. It is further the case of

the petitioner in this petition that because of the

impugned office order, the petitioner will be relieved

w.e.f. 31.7.2018, which will cause serious prejudice,

hardships and loss in terms of retirement benefits. Hence

the present petition has been preferred.

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3. Heard Mr. Gajendra P. Baghel, learned advocate for

the petitioner and Ms. Nidhi Trivedi, learned advocate

appearing for Mr Dipak R. Dave, learned advocate for

the respondent.

4. Mr. Gajendra P. Baghel, learned advocate for the

petitioner has submitted that the petitioner was serving

as helper in CHP Operation with the respondent

corporation and respondent - corporation has proposed to

relieve the petitioner from service of respondent-Gujarat

State Electricity Corporation Limited (Thermal Power

Station Ukai) with effect from 31.07.2018 on attaining

the age of superannuation i.e. 60 years. He has

submitted that it is the case of the petitioner that as

per school leaving certificate, the date of birth of the

petitioner is 01.06.1963 and, therefore, he has submitted

that the said action of the respondent is illegal, arbitrary

and unjust and is without proper application of mind as

such action of the respondent has at the fag end

considered the date of birth on the basis of Identity

Card, which is issued by the employer pursuant to the

date mentioned by the petitioner in medical record and

against which, date of birth of the petitioner as per

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school leaving certificate is 01.06.1963, i.e. another date

of birth. He has submitted that at the time of joining of

service of the petitioner during his medical examination,

the date of birth of the petitioner was recorded as

01.07.1958 and accordingly, the same is reflected in the

Identity Card issued by the respondent. Hence, he has

submitted that such action of the respondent for asking

the petitioner to retire on the basis of such record is not

in consonance with law. He has relied upon the

judgment of the Co-ordinate Bench of this Court

rendered in Special Civil Application No.6836 of 2010

and allied matters dated 26.12.2018, more particularly,

he has referred paragraph Nos.10.2 and 11 and has

submitted that present petition is required to be allowed

by granting the prayers made in the present petition.

5.1 Per contra, Ms. Nidhi Trivedi, learned advocate

appearing for Mr Dipak R. Dave, learned advocate for

the respondent has strongly opposed the submissions

made by learned advocate for the petitioner and by

referring to the affidavit-in-reply, she has submitted that

the petitioner was appointed as helper with the

respondent in the year 1982 and at that point of time,

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it was indicated that he is not having any other record

to show his date of birth like school leaving certificate,

etc. and, therefore, as per report of medical examination,

the date of birth of petitioner was shown as 01.07.1958

and on that basis, the petitioner was appointed and

pursuant to the same, the date of birth of the petitioner

i.e. 01.07.1958 was entered into service book of the

petitioner and thereafter, the petitioner was regularized

by virtue of order of the Industrial Tribunal rendered in

Case No.15 of 1982. At that point of time, after the

order was passed in the year 1995, the exercise is

carried out to regularize the services of the present

petitioner as well as several other employees. Hence, the

petitioner as well as other employees was asked to

produce their birth certificate or school leaving certificate,

however, the petitioner was not having such certificate.

The petitioner was, therefore, sent for medical

examination and on the basis of the said medical, the

date of birth of the petitioner was recorded as 01.07.1958

in the record of the company and accordingly service

book came to be prepared.

5.2 She has further contended that when it also

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transpires that the service book was prepared by

recording the date of birth of the petitioner as

01.07.1958 and identity card was prepared by mentioning

the date of birth of the petitioner as 01.07.1958, the

petitioner did not take any objection for all these years

from the year 1992, and from 1995 and till the age of

superannuation. She has further contended that as the

petitioner requested the respondent company at relevant

time to undergo medical examination so as to decide his

date of birth, accordingly, date of birth of the petitioner

was arrived at and recorded in the service book of the

petitioner. She has further contended that conduct of the

petitioner is also required to be seen that when the

petitioner was about to retire in the year 2018, the

petitioner made representation to the respondent and in

anticipation of his retirement, the petitioner also applied

for the purpose of withdrawal of his leave encashment

and 90% of the provident fund balance. She has further

contended that the petitioner represented the respondent

that he is going to retire on 31.07.2018 and accordingly,

as per the policy of the respondent, he may be allowed

withdraw 90% balance of the provident fund of the

amount at his credit. In the said application for getting

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CPF fund, the petitioner has shown his date of birth as

01.07.1958. She has further contended that even after his

retirement, other retiral benefits i.e. gratuity of Rs.

7,24,506/- and leave encashment amount of Rs. 2,20,780/-

have been received by the petitioner. She has further

contended that all these aspects have not been

mentioned in the petition and the petitioner has

deliberately suppressed this material aspect that the

petitioner after having withdrawn 90% of the provident

fund amount, the petitioner has approached this Hon'ble

Court at the fag end of his retirement in July, 2018

and, therefore, the petitioner is now producing certain

certificates which seems to have been obtained in July,

2018 just to get undue advantage from such certificate

and when the petitioner has represented his date of

birth as 01.07.1958 when he entered into service and

right from his entry, he represented the same date of

birth till the amount of retirement dues is received.

Hence, she has submitted that such contention raised by

the petitioner is not required to be accepted. She has

further submitted that the petitioner has never objected

to relieve him or receiving the relieving order and,

therefore, the respondent - Authority has acted in just

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and reasonable manner and in accordance with Rules

and as per the record available with the corporation.

Therefore, there is no illegality committed by the

respondent - Authority. She has submitted that in view

of above aspects and also considering the aspect of

suppression of material fact, the present petition is

required to be dismissed.

5.3 In support of her submissions, she has relied on the

judgment of the Hon'ble Apex Court in the case of

Union of India vs. C. Rama Swamy reported in 1997

LawSuit (SC) 644, more particularly, paragraph 12 of the

judgment has been relied on. She has also relied on the

judgment of this Court in the case of B.C. Nikam vs.

District Development Officer, Surat reported in 1999

LawSuit (Guj) 364, more particularly, paragraph 6 of the

judgment has been relied on.

5.4 She has submitted that in view of overall facts and

circumstances of the case and considering the aforesaid

decisions, the present petition deserves to be dismissed

as such benefit cannot be granted to such person, who is

coming before this Court by suppressing material fact

and also with a view to abuse the process of law by

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getting undue advantage by way of such documents.

6.1 I have considered the rival submissions made at the

bar by the respective parties. It transpires from the

record that date of birth of the petitioner in service book

is recorded on the basis of medical examination of the

petitioner at the relevant point of time when has joined

service in the year 1992. It further transpires that

pursuant to the order passed by the learned Tribunal in

the year 1995, the exercise of regularization was carried

out by the respondent - Authority, whereby date of birth

of the petitioner was mentioned as 01.07.1958 as per the

service record. It also transpires that when the petitioner

has joined service, identity card was also issued and

whereby date of birth of the petitioner was recorded as

01.07.1958 and not only that, the petitioner has served

with respondent - Authority all these years and as per

the record of the respondent company, the petitioner was

informed about the necessary procedure regarding the

retirement of the petitioner w.e.f. 31.07.2018, at that

point of time, the present petition has been filed on

17.07.2018 by the present petitioner before this Court.

Therefore, it clearly transpires that the petitioner was

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well aware about all these aspects that his actual date

of birth, which is recorded in service book, is on the

basis of medical and he never produced any birth

certificate or school records such as a school leaving

certificate or mark sheet, which establish that his date

of birth is 01.06.1963. He has never opposed the entry

made in his service book regarding his date of birth on

01.07.1958. It transpires that all these years, the

petitioner has rendered the services with respondent

without raising any objection and at least, the petitioner

is having continuously his identity card with him which

clearly mentions the date of birth of the petitioner as

01.07.1958. Furthermore, normally date of birth as per

the school leaving certificate should be given preference,

but in the present case, the petitioner has obtained the

said school leaving certificate in July, 2018. This itself

speaks about the conduct of the petitioner. Even validity

of such certificate is required to be established

considering such delay in production of the school leaving

certificate by the petitioner.

6.2 Apart from that, considering the fact that the

petitioner has received almost entire benefits before filing

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of the petition such as leave encashment and 90% of the

provident fund balance as well as after retirement, the

gratuity and other benefits, but the petitioner has not

disclosed the said facts at the time of filing of the

petition or by filing additional affidavit thereafter. This

clearly shows the conduct of the petitioner.

6.3 Furthermore, factum of the amount received by the

petitioner i.e. 90% of the amount towards provident fund,

wherein also, the date of birth of the petitioner is also

mentioned as 01.07.1958. Therefore, as such the

petitioner is also estopped by contending that now at the

fag end, his date of birth is 01.06.1963, instead of

01.07.1958.

6.4 Now, it is relevant to consider the judgment of the

Co-ordinate Bench of this Court which is relied upon by

learned advocate for the petitioner rendered in Special

Civil Application No.6836 of 2010 and allied matters

dated 26.12.2018, more particularly, paragraph Nos.10.2

and 11, which reads as under:

"10.2 Yet another decision which is next in the line which is relied upon is a decision reported in 2016 (15) SCC 781

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wherein also the Apex Court has held that once the date of birth is recorded in the service record as per educational certificates accepted by employee, the same cannot be changed at the fag end of his retirement and further analysing the factual matrix of the said case, the Hon'ble Court has stated that if there is a decree obtained by an employee without joining than same will not be binding to a party and, therefore, what has been observed in this judgment by Apex Court in a different factual scenario where the employee has requested to change the date of birth at the fag end of retirement which is not the case herein and further apart from nonjoining of the Civil Court's decree, it is not the sole reliance on that and despite the fact that respondent authority is well aware about the decision of Civil Court right from beginning has not made any attempt either to challenge or to agitate. However, be that as it may, even if that decree is not binding then also the decision making process here is altogether erroneous and impermissible as can be seen from the record. Resultantly, in respectful agreement of proposition of the law laid down by Apex Court in aforesaid decision, the background of facts of present case is distinct and rather same principle is to be applied where the employee has come forward to superannuate the amount while taking correction at the fag end of service which is not only contrary to the spirit of observations made by Hon'ble Apex Court as stated earlier and not only in consonance with the object of Rule 40 as well and as such in no case the impugned action is sustainable in eye of law. On the

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contrary, a serious attempt is visible on the part of the authority to allege fraud against the petitioner concerned making him retired and then alleged fraud so as to sideline the decision making process which is not in the spirit in which the statutory organisation is undertaken. The Court is of the considered opinion that the petitioners have made out a case and accordingly impugned decisions challenged in the respective petitions are quashed and set aside hereby with cost of Rs.5,000/ each to be payable to that each of the petitioner.

11. While disposing of the petition, the Court has seen the record in which for the purpose of verification to pass on benefits of 6th Pay Commission recommendation school leaving certificates are demanded and thereby initially without granting any opportunity assumed the date of superannuation on its sweetwill which led the petitioner to this Court in earlier round of litigation and then the Court reposed confidence in the authority that hearing would be given in a true spirit and in a fair manner but Court found that though in detailed the contentions have been raised, various decisions have been cited, the authority has maintained in as it is manner the earlier stand and has come out with a new assertion in affidavit that fraud is practiced by the petitioner and Court found that undisputedly for establishing that fraud no departmental inquiry is initiated nor any criminal prosecution is launched and just made an attempt to highlight fraud without any basis and exercise has been

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undertaken at the fag end of service of the petitioners and as such since the petitioners are dragged again to this Court, the Court is constrained to impose cost of Rs.5,000/- each to be payable by the respondent authority within a period of eight weeks from date of receipt of writ of this Court."

6.5 It is also relevant to refer one more paragraph in

context of the facts of the case, more particularly,

paragraph No.2.4 of the aforesaid judgment rendered in

Special Civil Application No.6836 of 2010 and allied

matters dated 26.12.2018, which reads as under:

"2.4 Same is the case with respect to Special Civil Application No.7588 of 2010 filed under Article 226 of the Constitution of India on the premise that petitioner's name was registered with employment exchange and he came to know that date of birth was wrongly entered as 01.06.1952 instead of 25.08.1953 and the name of the petitioner was also mentioned in the Employment Exchange as 'Jentilal' and, therefore, same was duly granted according to the petitioner. In the year 1978, the petitioner was selected and appointed by respondent to work as a Karkun by recording his date of birth as 01.06.1952 instead of 25.08.1958 and thereafter by communication dated 20.05.2010 the petitioner was informed that his date of birth is treated to be 01.06.1952 and, therefore, the petitioner would now retire on 30.06.2010

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on the basis of this date of birth. It is further the case of the petitioner that when he came to know about this sudden change, the petitioner preferred an application giving full details and requested the authority not to alter the date of birth but the request was rejected and the petitioner simultaneously had also filed suit for correction of names in the register of birth and the same was accordingly corrected as the suit came to be allowed on 29.06.2010. However, the respondent authority passed an order on 01.06.2010 maintaining the decision to treat the date of birth as 01.06.1952 on the ground that at the time of entering in the service the date of birth was recorded dated 25.08.1953 which was merely on the basis of affidavit and thereby petitioner was superannuated on 30.06.2010 on the basis of date of birth as 01.06.1952 and it is this decision which is made the subject matter of petition for claiming reliefs which are prayed for in para:6 of the said petition."

In view of the abovementioned judgment relied by

the learned advocate for the petitioner, it clearly

transpires that when the Authorities were to change the

date of birth which is recorded earlier in service book,

the petitioner has made representation not to change

such date of birth by producing necessary documents

along with such application and, therefore, in that case,

the date of birth, which is already recorded in service

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book, was sought to be changed by the Authority at the

fag end. Here, in the present case, the case is otherwise.

The petitioner himself has got the date of birth recorded

in service book at the time of entry in service and now

seeking to change date of birth in service book, which is

also not permissible in the eyes of law and, therefore,

the judgment, which is relied on by the petitioner, is not

applicable to the fact and circumstances of the present

case.

6.6 It is also relevant to refer the judgment of the

Hon'ble Apex Court cited at the bar by learned advocate

for the respondent in the case of Union of India vs. C.

Rama Swamy reported in 1997 LawSuit (SC) 644, more

particularly, paragraphs 12 and 25 are relevant, which

reads as under:

"12. For the view which we are taking it is not necessary to decide whether the application of the respondent before the Tribunal was time barred because, in our opinion, on a correct interpretation of the said rules no relief could have been granted to the respondent.

25. In matters relating to appointment to service various factors are taken into consideration before making a

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selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration bu the appointing office. In fact, where maturity for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability."

6.7 It is also relevant to refer the judgment of this

Court cited at the bar by learned advocate for the

respondent in the case of B.C. Nikam vs. District

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Development Officer, Surat reported in 1999 LawSuit

(Guj) 364, more particularly, paragraph 6 of the

judgment has been relied on, which reads as under:

"6. It is settled law that the employee seeking correction in his date of birth must show that the recorded date of birth was made due to negligence of some other person or that the same was an obvious clerical error. In case an employee fails to do so no relief can be granted. The reference here may have to the decision of the apex court in the case of Union of India Vs. Sarojwala reported in 1996(2) SCC 81. The correction of date of birth is claiming by the petitioner on the basis of extract from birth register. This document as stated earlier has been procured by the petitioner subsequent to his recording of the date of birth in the school leaving certificate. There is no material on the record other than this document and which based on the affidavit of the petitioner's father, to show that the birth date of the petitioner entered in the school leaving certificate is incorrect. The extract from the birth register in the facts of this case is evidence created by the petitioner for his own benefits and it cannot be relief upon. The reference here may have to another decision of the apex court in the case of Commissioner of Police Bombay Vs. V. Lahane 1997(1) SCC 247. The decision of the respondent No.2 to accept the date of birth of the petitioner as 1/6/1944 is perfectly legal and justified in which no interference of this court called for. The petitioner not only dragged the respondent No.1 in to litigation but to defend this petition it has to incur heavy expenses of Rs.4,500/-. This amount has been paid

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by the respondent No.1 to his learned counsel towards his fees for rendering his professional services. This amount would have been utilised by the respondent No.1 for the development of the area or to provide facilities and amenities to residents of the area. But for this litigation this amount would have been utilised and spent to provide facilities and amenities to the residents of the area or for some other development purpose. It is a case where the petitioner has made an attempt to get his date of birth correct on the basis of his own created documents."

6.8 Considering the ratio of this judgments and

considering the facts of the present case, the judgments,

which are cited by learned advocate for the respondent,

are squarely applicable to the facts of the present case.

6.9 Moreover, considering the fact that the petitioner

has tried to suppress some relevant facts at the time of

filing of the present petition such as receiving 90% of

the provident fund balance and also considering the fact

that as the petitioner has made attempt only in the year

2018 by producing his school leaving certificate, such

dishonest attempt made by such litigant is required to

be discouraged. Hence, on the ground of conduct of the