Madhya Pradesh High Court
Premnarayan Sharma vs Panchayat And Rural Development ... on 14 June, 2022
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
WRIT PETITION No. 23316 of 2019
Between:-
PREMNARAYAN SHARMA S/O BANSILAL SHARMA,
AGED ABOUT 60 YEARS, OCCUPATION: RETD.,
TONK KHURD, DISTRICT DEWAS (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RISHI SHRIVASTAVA, ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH PRINCIPAL SECRETARY,
1. PANCHAYAT AND RURAL DEVELOPMENT
DEPARTMENT,
VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
THE COMMISSIONER,
2.
UJJAIN DIVISION ,UJJAIN (MADHYA PRADESH)
THE CHIEF EXECUTIVE OFFICER,
3. JILA PANCHAYAT, DEWAS JILA PANCHAYAT,
DEWAS (MADHYA PRADESH)
THE CHIEF EXECUTIVE OFFICER,
4. JANPAD PANCHAYAT, TONK KHURD,
DISTRICT DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. DRISHTI RAWAL, PANEL LAWYER )
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2
O R D E R
(Passed on 14.06.2022)
1. By this petition preferred under Article 226 of the Constitution of
India the petitioner has challenged the order dated 06.08.2019 passed
by respondent No.4 whereby his services have been superannuated
w.e.f. 30.09.2013. He has also challenged the order dated 28.09.2019
passed by respondent No.4 by which an order for recovery has been
passed against him for the period he was in service from the date of his
superannuation i.e. 2013 upto 2019.
2. As per the petitioner, he was initially appointed as a Vehicle
Driver by order dated 02.04.1988 in the respondent department. Prior to
his appointment the petitioner was required to submit the age related
document with the department. He had hence applied for issuance of a
Certificate to certify his date of birth from his school pursuant to which
a Certificate dated 06.08.1989 was issued by the Head Master of School
Tonk Khurd, District Dewas which he had submitted at the time of his
appointment.
3. On 18.07.2019, respondent No.4 issued a letter to the petitioner
stating that his date of birth which is reflected from the Certificate i.e.
05.07.1961 is different from his date of birth as mentioned in the
scholar register of Government Primary School, Tonk Khurd, District
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Dewas, which is 14.09.1953. The petitioner was directed to produce
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record with respect to his date of birth. Thereafter by order dated
24.07.2019 an inquiry was conducted in the Government School and it
was found that the date of birth of the petitioner was recorded as
14.09.1953 in the scholar register. The petitioner was then issued a
letter to file his reply. The petitioner filed his reply on 05.08.2019
stating that he is not in possession of any document other than the
Certificate issued by the Head Master of Government School, Tonk
Khurd, District Dewas. Thereafter respondent No.4 passed the
impugned order dated 06.08.2019 relying upon the scholar register and
superannuated the petitioner w.e.f. 30.09.2013 holding his date of birth
to be 14.09.1953. He then passed an order dated 28.09.2019 denying
the petitioner his pensionery benefits and initiated recovery proceedings
against him with respect to the salary drawn by him from October, 2013
till July, 2019 and deducted the amount of pension and other retiral
benefits. It are these orders which have been challenged by the
petitioner in this petition.
4. Reply has been filed by the respondents submitting that the
petitioner was appointed on the post of permanent Driver by order dated
15.10.1990. At the time of his appointment he submitted the proof of
his date of birth showing the same as 05.07.1961. However, in the
income tax return the PAN Card and Aadhar Card submitted by the
petitioner were showing different dates i.e. the PAN Card showed his
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date of birth as 05.07.1961 and Aadhar Card showed the same as
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01.01.1953. When dispute arose as regards date of birth of the petitioner
the respondents collected information from his scholar register of
Government Primary School, Tonk Khurd, District Dewas. The
Principal of the school by his letter dated 17.07.2019 informed that the
date of birth of petitioner in scholar register is 14.09.1953 and his
scholar number is 791. The Chief Executive Officer of the Janpad
Panchayat then constituted a committee for inquiry as regards date of
birth of the petitioner. The committee submitted its report on
26.07.2019 and found the same as 14.09.1953. Thereafter information
was sought from the petitioner in respect of proof of his date of birth
but he did not file adequate reply nor submitted any proof of his date of
birth. Therefore, the petitioner has rightly been retired as per his date of
birth i.e. 14.09.1953.
5. Learned counsel for the petitioner has submitted that the
impugned orders are wholly illegal and bad in law. No detailed inquiry
was conducted prior to passing of the impugned order. The date of
superannuation of the petitioner could not have been changed at this
stage and no recovery could have been initiated against him. The
petitioner is a Class-III employee and recovery from him cannot be
made at the verge of retirement or post retirement. The petitioner had
provided services during the period from 2013 to 2019 and had rightly
been paid the salary for the said period. The State Government has
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issued Financial Code which are essentially executive orders of the
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Governor and as per Rule 84 of the code the date of birth recorded in
the history of service, service book or any other record once recorded
must be deemed to be absolutely conclusive and except in case of a
clerical error no revision can be allowed to be made at a later period.
The date of birth of the petitioner could not have been changed by the
respondents as there was no clerical error. By a Circular dated
27.09.2001 the State Government had directed, inter alia, the Chief
Executive Officers of all Janpad Panchayats that the cases as regards
change of date of birth should be processed at the level of the State
Government which has not been followed. Reliance has been placed by
him on the Division Bench decision of this Court in State of M.P. V/s.
Mathura Singh and Another (2002) 5 MPLJ 231, W.P.
No.11791/2009 (S) Union of India and Others V/s. Bhaiyalal Nai
decided by the Principal Seat of this Court by order dated 03.01.2012
and of the Hon'ble Apex Court in Shankarlal V/s. Hindustan Copper
Limited and Others, Civil Appeal No.2858 of 2022, decided on
20.04.2022.
6. Learned counsel for the respondents has submitted that the only
document as regards his date of birth produced by the petitioner is the
Certificate of the Head Master of Government School, Tonk Khurd,
District Dewas issued on 06.08.1981. When a dispute arose as regards
date of birth of the petitioner inquiry was made from the said school
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and it was reported by its Head Master that as per the scholar register of
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the petitioner maintained at the school where his date of admission was
shown as 28.10.1960, his date of birth was recorded as 14.09.1953. The
petitioner was repeatedly asked to furnish proof in respect of his date of
birth but he failed to do so hence rightly relying upon the scholar
register of the school, his date of birth has been held to be 14.09.1953
and he has been superannuated. Reliance placed by the petitioner upon
Rule 84 of M.P. Financial Code is wholly misplaced. Reliance has been
placed by her on the decision of the Hon'ble Apex Court in State of
M.P. and Others V/s. Premlal Shriwas, (2011) 9 SCC 644.
7. I have heard the learned counsel for the parties and have perused
the record.
8. At the time of appointment of the petitioner as a permanent
Driver he had submitted the Certificate dated 06.08.1981 of the Head
Master of Government School, Tonk Khurd, District Dewas stating his
date of birth to be 05.07.1961. The original service record of the
petitioner produced by the respondents which contains his service book
shows that on the basis of the aforesaid Certificate submitted by him,
his date of birth was recorded as 05.07.1961. The petitioner then
continued in service for about 29 years and during that entire period no
question was raised by the respondents as regards his date of birth. It is
only thereafter that such a dispute was raised by the respondents and
information was sought from the school of the petitioner and thereafter
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by relying upon the scholar register entry and the Certificate given by
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the Head Master of the school, the date of birth of the petitioner was
held to be 14.09.1953.
9. Rule 84 of M.P. Financial Code (Vol.-I) reads as under :-
"84. Every person newly appointed to a service or a
post under Government should at the time of the
appointment declare the date of his birth by the Christian era
with as far as possible confirmatory documentary evidence,
such as, a matriculation certificate, municipal birth
certificate and so on. If the exact date is not known, an
approximate date may be given. The actual date or the
assumed date determined under Rule 85 should be recorded
in the history of service, service book or any other record
that may be kept in respect of the Government servant's
service under Government. The date of birth, once recorded
in this manner, must be deemed to be absolutely conclusive,
and except in the case of a clerical error no revision of such a
declaration shall be allowed to be made at a later period for
any purpose whatever."
10. As per the aforesaid rule, upon declaration of date of birth made
by a Government employee at the time of his appointment on the basis
of document submitted by him, the same is recorded in the history of
service, service book or any other record kept under Government. Such
date of birth, once recorded is deemed to be absolutely conclusive and
no revision is permissible except in case of a clerical error. In the
present case the date of birth of the petitioner has not been revised on
account of any clerical error but has been revised on the ground of the
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same being incorrect since the very inception. The said course was
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hence not permissible under Rule 84 of the Financial Code.
11. The petitioner having declared his date of birth at the time of his
appointment, which declaration was accepted by the respondents and
was acted upon for a period of almost 29 years, could not have been
altered in the manner in which the same has been done. It is not a case
of clerical error in recording of date of birth of the petitioner at the time
of his initial appointment. The impugned order is hence in clear
violation of Rule 84 of the M.P. Financial Code. In this regard the
judgments relied upon by learned counsel for the petitioner in Mathura
Singh and Another (supra) and Bhaiyalal Nai (supra) are squarely
applicable.
12. In Shankarlal (supra) the Hon'ble Apex Court has held in
paragraph 18 as under :-
"18. The employer has taken a stand that the date of
birth recorded of the appellant in the service book was an act
by mistake. This is a weak explanation in our opinion.
Several subsequent steps were taken by the employer in
relation to the appellant's employment on the basis of the
entry in his service book. The employer are the custodian of
these records. They acted all along on the basis of the service
entries till the appellant took VRS. It has been pleaded by
the appellant that at the time of his appointment, the office of
the respondent company entered in all their records his date
of birth as 21st September 1949. In the light of these facts,
we are not inclined to accept the version of the employer that
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service book recordal was a mistake. The employer, a public
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sector unit in this case, was expected to act with a certain
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element of responsibility in maintaining the service records
of their workmen and ensure that there is uniformity in
particulars concerning individual employees. There is no
explanation as to how this mistake occurred and how pay
slips continued to be issued carrying the mistaken date of
birth for such a long time. The High Court in our view ought
not to have had accepted "mistake" as the cause for different
entries in different documents."
13. The case of the petitioner stands even on a better footing then the
case of the appellant in the aforesaid appeal. The petitioner's case is not
even of a mistake or error since respondents do not contend that there
was any mistake in recording of the date of birth of the petitioner. The
case is of alteration of date of birth on account of some discovery
and/or new evidence and facts collected by the respondents after the
petitioner having worked for a period of 29 years on the basis of date of
birth declared by him.
14. Moreover, as per Circular dated 27.09.2001 of the State
Government which is applicable to the Zila Panchayats also in the State
of M.P., no alteration in the date of birth of an employee should be
made and in case of any exigency the same can be done only at the
level of the State Government. The said Circular is fully applicable on
the respondents and has not been refuted by him. In the present case the
entire procedure and final determination as regards date of birth of the
petitioner has been done by respondent No.4 himself and the date of
birth of the petitioner has been altered without the matter being referred
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to the State Government. This is a clear violation of the instructions
contained in the aforesaid Circular dated 27.09.2001.
15. As a result of the aforesaid discussion, the impugned order dated
06.09.2019 (Annexure P/7) and 28.09.2019 (Annexure P/9) cannot be
sustained and are hereby set aside. The date of birth of the petitioner is
held to be 05.07.1961. His date of superannuation is hence liable to be
determined as per the said date and the petitioner shall be deemed to
have continued in service upto that date when he shall be deemed to
have superannuated. The petitioner shall be entitled for all monitory
benefits of his service upto the date of his superannuation and shall also
be entitled for all pensionery and other benefits subsequent to the said
date of his superannuation. The entire exercise of payment of all
monitory benefits to the petitioner be completed within a period of three
months from today.
16. With the aforesaid directions, the petition stands allowed,
however, without any order as to costs.
(PRANAY VERMA)
JUDGE
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