Allahabad High Court
Indra Vikram Singh vs State Of U.P. Thru. ... on 1 February, 2019
Bench: Shabihul Hasnain, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 2 Case :- SPECIAL APPEAL No. - 30 of 2019 Appellant :- Indra Vikram Singh Respondent :- State Of U.P. Thru. Prin.Secy.,Irrigation Deptt. & Anr. Counsel for Appellant :- Anand Mani Tripathi Counsel for Respondent :- C.S.C. Hon'ble Shabihul Hasnain,J.
Hon'ble Alok Mathur,J.
Heard Sri A. M. Tripathi, learned counsel for the appellant as well as learned Standing counsel.
The appellant has challenged the order dated 24.1.2019 passed by Hon'ble single Judge in Service Single No.2128 of 2019 (Indra Vikram Singh Vs. State of U.P. and others). Hon'ble Single Judge has dismissed the petition filed by the petitioner-appellant for correction of his date of birth. The appellant had submitted before Hon'ble Single Judge that his date of birth according to High School certificate was 17.7.1960 which was issued in the year 1976. However, date of birth in the service book of the appellant is recorded as 12.1.1959. The appellant has submitted that he entered into service in the year 1991 as a casual labour. At that relevant point of time the service book is not maintained. However, his date of birth came to be recorded in the register as 12.1.1959. The appellant continued as casual labour till his regularization on 22nd November, 2008.
It is the case of the appellant that he had given his High School certificate showing his date of birth at the time of his regularization but some how the earlier date i.e. 12.1.1959 continued in the records and got inscribed in the service book also. The appellant states that he was under a bonafide belief that his date of birth must have been corrected according to High School certificate. However, when the retirement notice was issued on 8.8.2018 to him, he moved an application for correction of his date of birth as per the High School Certificate but the same was turned down only on the ground that the application was moved at the fag end of his service career and hence, the date of birth cannot be changed. Hon'ble Single Judge has agreed with the finding of the department and has dismissed the writ petition.
Learned Standing counsel has defended the order of Hon'ble Single Judge on the ground that firstly the date of birth i.e. 12.1.1959 was provided by the petitioner himself. However, he has not been able to substantiate this charge that date of birth i.e. 12.1.1959 was, in fact, provided by the petitioner appellant himself. In absence of no such document on record, it is difficult to fix the responsibility whether it was a deliberate mistake on part of the appellant or it was a casual approach of the officers who maintain casual labour register.
With whatever little experience we have in these mattes, we have come to realize that when a casual labour is inducted in service, no effort is made to verify the date of birth. It is only at the time of regularization or a direct recruitment that date of birth in service book etc. become vital. There is no provision that a casual labour will be inducted only after he has passed High School, casual labour can be inducted in any way. In such a situation it is hard to believe and to be persuaded that the date of birth entered in casual labour register was, in fact, based on any document, which is not on record.
The sole ground taken by the opposite parties as well as Hon'ble Single Judge is to the effect that the application for correction of the date of birth was moved by the appellant-petitioner at the fag end of his career. We are aware of the judgments of Hon'ble Supreme Court in this regard and we respectfully bow down to the observations made therein. At the same time, it is also necessary to point out that the judgments relate to the matters wherein date of birth is not certified by High School certificate. There have been cases wherein date of birth have been sought to be changed by the employee at the fag end of the career on the basis of age verification from the Chief Medical Officer or in cases where the service book of initial date of birth is not based on High School Certificate but on the version given by the petitioner, then an attempt to change the same at the fag end of career is not appreciated.
Rule 2 of U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974 (hereinafter referred to as the 'Rules of 1974') provides as under:-
"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 benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."
Sri A. M. Tripathi has submitted that at the time of regularization in the year 2008 he had provided the certificate of High School along with the migration certificate but it appears that sufficient attention was not paid to this aspect. We find that petitioner was regularized but somehow necessary correction in the service book could not be made and the date of birth recorded earlier continued till he was issued notice of retirement by the department. There appears to be a case of mistake by the department which is to be corrected in accordance with law.
Hon'ble Single Judge has taken only one aspect of the matter and believed that even if the law is in favour of the appellant the benefit cannot be given only because the application has been moved at the fag end of his career. We find that the appellant/petitioner had submitted High School certificate/migration certificate. The High School certificate is available on record, the veracity of which is not disputed by the opposite parties at all. It is difficult to understand the stand taken by the opposite parties. Since they did not doubt the veracity of High School Certificate and did not raise any doubt that the petitioner had passed high school much before his date of retirement. At the time of entry into service he had already passed high school. The matter ought to have been considered in the light of the Rules of 1974. Instead of applying its mind a cursory manner was adopted and the incorrect date of birth continued to be in service book. The appellant has forcefully argued that right from the department upto High Court the opposite parties are not doubting the veracity of High School certificate. We feel that Hon'ble Single Judge has erred in law and dismissed the petition only on the ground that the application for correction of the date of birth in service book was moved very late at the fag end of his career.
Learned counsel for the parties have placed reliance upon the the judgment of Hon'ble Supreme Court in the case of State of Madhya Pradesh and others Vs. Premlal Shrivas, reported in (2011) 9 Supreme Court Cases 664 wherein in paragraphs 15 and 16 it has been held as under:-
"15. In Commr. of Police v. Bhagwan V. Lahane this Court has held that for an employee seeking the correction of his date of birth, it is a condition precedent that he must show, that the incorrect recording of the date of birth was made due to negligence of some other person, or that the same was an obvious clerical error failing which the relief should not be granted to him.
16. Again, in Union of India v. C. Rama Swamy it has been observed that a bona fide error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded."
Considering all the facts and circumstances of the case, we feel that a case for interference is made out.
Learned Standing counsel is granted four weeks' time to file counter affidavit. Rejoinder affidavit may be filed within one week thereafter. List after expiry of aforesaid period.
Meanwhile, operation and implementation of the judgment and order dated 24.1.2019 passed by Hon'ble Single Judge in writ petition No.2128 (S/S) of 2018 as well as the impugned office order dated 8.8.2018 as contained in Annexure No.1 to this petition, shall remain stayed.
Order Date :- 1.2.2019 RKM.