Madhya Pradesh High Court
The State Of Madhya Pradesh vs Premnarayan Sharma on 24 February, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
NEUTRAL CITATION NO. 2025: MPHC-IND:4744
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
WRIT APPEAL No. 1127 of 2022
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
PREMNARAYAN SHARMA
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Appearance :
Shri Bhuwan Gautam - learned Government Advocate for the appellants/State.
Shri Rishi Shrivastava - learned counsel for the respondent/employee.
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Heard on : 05.02.2025
Pronounced on : 24.02.2025
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ORDER
Per: Justice Sushrut Arvind Dharmadhikari
This intra-court appeal filed by the appellant/State under Section
2(1) of the M.P. Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal)
Adhiniyam, 2005 assails the order dated 14.06.2022 passed by learned
Single Judge allowing the W.P.No.23316/2019 filed by the
petitioner/respondent.
2. The writ petition was directed against order dated 06.08.2019
passed by appellant No.4 herein whereby the services of the
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petitioner/respondents have been superannuated w.e.f. 30.09.2013.
Challenge was also to the order dated 28.09.2019 by which an order of
recovery has been passed against the respondents for the period he was in
service from the date of his superannuation i.e. 2013 upto 2019.
3. Short facts of the case are that the petitioner/respondent was
initially appointed as Vehicle Driver by order dated 02.04.1988 in the
appellant department. Prior to his appointment the petitioner was
required to submit the age related document with the department. He,
thus, produced a certificate dated 06.08.1989 which was issued by Head
Master of School Tonk Khurd, District Dewas.
4. On 18.07.2019, appellant No.4 herein issued a letter to the
petitioner/respondent 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 Dewas, which is 14.09.1953. The respondent was
directed to produce 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 respondent was
recorded as 14.09.1953 in the scholar register. The respondent was then
issued a letter to file his reply. The respondent 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, appellant No.4 passed the
impugned order dated 06.08.2019 relying upon the scholar register and
superannuated the respondents 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
NEUTRAL CITATION NO. 2025: MPHC-IND:4744
respondent 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. These orders were under challenge in the writ petition.
5. The writ petition was allowed in the following terms :
"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 by
relying upon the scholar register entry and the Certificate given
by 7 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
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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 same being
incorrect since the very inception. The said course was 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 service book recordal was a mistake.
The employer, a public sector unit in this case, was expected to
act with a certain 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
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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 10
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."
6. Learned counsel for the appellants/State has reiterated the
arguments advanced in W.P.No.23316/2019, however, he vehemently
argued before this Court that reliance placed by the petitioner upon Rule
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84 of M.P. Financial Code was wholly misplaced. Learned Single Judge
has committed illegality in applying Rule 84 of the Code. He contended
that Rule 84 of the Code does not in any manner curtail power of the
employer in correcting an entry in the service book pertaining to date of
birth of a Government servant. It is contended that the learned Single
Judge has committed error of law in allowing the writ petition thereby
passing the impugned order.
7. Learned counsel for the respondent opposing the contentions of
learned counsel for the appellants submitted that all these grounds were
raised in the writ petition and learned Writ Court after considering rival
contentions as well as the documents on record has passed the order
impugned and, thus prayed for dismissal of the appeal.
8. Heard learned counsel for the parties and perused the record.
9. Record reveals that the respondent was appointed in the year 1988
and as per requirement, he submitted a certificate issued by the Head
Master of School Tonk Khurd, District Dewas in support of his date of
birth, wherein date of birth of the respondent is mentioned as 05.07.1961
which was recorded in the service record. However, in the year 2019, an
inquiry was conducted in the Government School and it was found that
the date of birth of the respondent was recorded as 14.09.1953 in the
scholar register. The petitioner was issued a letter to file reply. The
respondent filed reply stating therein that he is not in possession of any
other document except the document he has submitted with the
department. Thereafter, impugned orders have been passed against the
respondent.
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10. Recording date of birth of a government servant is governed by
Rules 84 and 85 of M.P. Financial Code. Rule 84 of the Code provides
that 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 with documentary evidence. Further, the date of birth, once
recorded, 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.
11. Though learned counsel for the appellant has argued that Rule 84
of the Code does not in any manner curtail power of the employer in
correcting an entry in the service book pertaining to date of birth of a
Government servant, however, he has failed to point out any Rule or
provision of law for correction of date of birth after an inordinate delay,
more particularly, at the fag end of service of an employee. In the case at
hand, the respondent submitted the document as regards his date of birth
in the year 1988 and the same has been disputed by the employer in the
year 2019 i.e. at the fag end of service. Apart that, it is not a case of any
clerical mistake in recording the date of birth. It is a settled principle of
law that date of birth of an employee recorded in service book while
being inducted in Government service cannot be, in any manner, altered
at the fag end of service.
12. Moreso, in the present case, admittedly, the respondent has worked
for the period from October, 2013 till July, 2019. Denying the respondent
his pensionery benefits and initiating recovery proceedings against him
with respect to the salary drawn by him from October, 2013 till July,
NEUTRAL CITATION NO. 2025: MPHC-IND:4744
2019 and deducting the amount from his pension and other retiral
benefits is wholly unjustified.
13. In view of the aforesaid, we are of the considered view that there is
no illegality or perversity in the impugned order dated 14.06.2022 passed
by learned Single Judge in W.P.No.23316/2019 requiring interference by
this Court.
14. Consequently, the appeal being devoid of substance and sans merit
deserves to be and is hereby dismissed.
(SUSHRUT ARVIND DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
anand
