Himachal Pradesh High Court
Mastu Devi vs State Of Himachal Pradesh & Others on 27 March, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWPOA No. 5011 of 2019
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Date of decision: 27.3.2023
Mastu Devi. ...Petitioner.
Versus
State of Himachal Pradesh & others. ...Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner. M/s S.S. Sood and B. Nandan Vashishta,
Advocates.
For the Respondents: Mr.Yudhvir Singh, Deputy Advocate General.
Vivek Singh Thakur, Judge (oral)
By filing Original Application No. 1106 of 2015 on 23.5.2015, petitioner approached erstwhile H.P. State Administrative Tribunal against her notified retirement on 29.5.2015, on the ground that she was being retired on the basis of wrongly recorded date of birth in her service record as 21.5.1957, whereas her actual date of birth was 19.1.1962 as per birth certificate issued by competent authority under Section 12/17 of Registration of Births and Deaths Act, 1968 and Rule 8 of the H.P. Registration of Births and Deaths Rules, 2003 and certificate issued by the Gram Panchayat is in consonance with record of concerned Gram Panchayat which has also been reflected in School Leaving Certificate of petitioner.
2. Petitioner claimed that respondents, despite making written request for correction of date of birth in her service record, refused to entertain the request and returned the same unattended without following prescribed procedure under law and resultantly she was constrained to Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 2 CWPOA No. 5011 of 2019 send the application alongwith encloser to respondent No. 3, District Ayurveda Officer, Shimla through Speed Post on 20.5.2015.
3. It is case of the petitioner that she was engaged as Part .
Time Worker in the Department of Ayurveda on 1.7.1988 in Government Ayurvedic Health Centre, Charoli Bag, District Shimla and at the time of her appointment on part time basis, she had submitted requisite documents as required by the authorities.
4. In the year 2009, petitioner was converted into Daily Waged Class-IV employee of the Department and she continued as such till her regularization of service in May, 2013.
5. Petitioner claimed that process of converting part time service as daily wages was initiated in the year 2006 and at that time, she obtained her School Leaving Certificate on 17.5.2006 (Annexure A-1) from Government Central Primary School, Kupvi, which was countersigned by Block Primary Officer, Kupvi, District Shimla, H.P. indicating her date of birth as 19.1.1962 and she had submitted the said certificate to respondent No. 4 Ayurvedic Chikitsa Adhikari, Government Ayurvedic Health Centre, Charoli Bag in the year 2009, on conversion of her service as daily wager but the same remained in the record till April, 2015 and it was returned to the petitioner by respondent No. 4, stating that the said certificate was not reflecting correct name of petitioner as her name in the record is 'Mastu Devi', whereas in the certificate name mentioned was 'Masto Devi'.
6. According to petitioner, she immediately approached the school authorities for correction of name in certificate and school authorities, after verifying the record, issued another certificate with ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 3 CWPOA No. 5011 of 2019 corrected name as 'Mastu Devi', copy whereof has been placed on record as Annexure A-3 and the same was submitted by her to respondent No. 4 in April, 2015, but he refused to take the said certificate on record with .
direction to submit it with respondent No. 3, but respondent No. 3 also refused to accept the same and, therefore, she sent it through Speed Post.
7. It has been contended on behalf of petitioner that as provided under Rule 7.1 (2) and (3) of Himachal Pradesh Financial Rules, 1971, petitioner had asked for correction of her date of birth within two years period of date of her entry in the Government Service and, therefore, it has been claimed that petitioner was entitled for correction of date of birth entries in her service record.
8. Learned counsel for the petitioner to substantiate claim of the petitioner for correction of date of birth as well as payment of emoluments for her extended period of service, has relied upon Cement Corporation of India Vs. Raghbir Singh and another, AIR 2002 Supreme Court 509; R.K. Jangra Vs. State of Punjab and others, 2009 AIR SCW 3369; CIDCO Vs. Vasudha Gorakhnath Mandevlekar (2009) 7 SCC 283; and M/ Bharat Coking Coal Ltd. & others Vs. Chhota Birsa Uranw, 2015 (4) SLR 497 (SC).
9. In response to the petition, it has been submitted on behalf of respondents that petitioner made representation at the fag end of her service when less than 10 days were left for her retirement, whereas she was part time Class-IV Sweeper in the Department since 1988 and converted into daily wager in 2009 and joined her duties as regular employee on 8.5.2013. Referring above mentioned Rule 7.1 (2) and (3), ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 4 CWPOA No. 5011 of 2019 it has been submitted on behalf of respondents that petitioner had submitted her claim for correction at fag end of her service and, therefore, her claim is not tenable.
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10. Respondents have also contended that at the time of conversion of service of petitioner as daily wager on 16.2.2009, petitioner produced her 5th pass certificate indicating her date of birth as 21.5.1957 and when her services were regularized on 2.5.2013, she again produced her School Leaving Certificate with date of birth 21.5.1957. certificate produced by the petitioner has been placed on record as r Copy of Annexure R-2. It has been further submitted that right from her appointment since 1988 till her regularization in the year 2013, petitioner failed to submit any representation for correction of her date of birth and she raised this issue in the month when she was to retire.
11. In support of prayer for rejection of petition, respondents- State has placed reliance upon Bharat Coking Coal Limited and others vs. Shyam Kishore Singh, (2020) 3 SCC 411.
12. It is claim of the petitioner that she submitted certificate for correction of her date of birth in service record in the year 2009 at the time of conversion of her services into daily waged employee, but the same was not considered by respondent No. 4 and was returned to her in the year 2015 for wrong name mentioned therein and in these circumstances she obtained another certificate and submitted the same to the authorities. Whereas it is stand of the respondents that she approached for correction of date of birth only in May, 2015. In these circumstances, petitioner is claiming that she approached the authorities in the year 2009 itself immediately at the time of her conversion as daily ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 5 CWPOA No. 5011 of 2019 waged employee and, thus, she had approached the authorities within time, whereas stand of respondents is that she approached at fagend of her service. The petitioner has not placed on record any material to .
substantiate her claim. However, without going into this controversy, for material placed on record, even if claim of the petitioner regarding submitting the certificate for correction of date of birth is taken to be true, her claim is liable to be rejected for reasons enumerated in succeeding paras.
13. to In rejoinder, there is submission on the part of petitioner that after passing of 5th standard examination in the year 1992, the petitioner submitted copy of School Leaving Certificate issued on 7.5.1992, and she has placed on record copy thereof as Annexure A-9, which in fact is the identical copy of Annexure R-2 placed on record by respondents- Department. Copy of duplicate School Leaving Certificate dated 17.5.2006 has been placed on record by the petitioner as Annexure A-1, claiming that copy of this certificate was submitted by her in the year 2009 to respondent No. 4. Copy of third certificate dated 24.4.2015 has been placed on record as Annexure A-3 by the petitioner with submission that this certificate was obtained by her after correction of name as there was a mistake in mentioning her name in certificate dated 17.5.2006 (Annexure A-1). Therefore, all three certificates, copies whereof have been placed on record as Annexures R-2(A-9), A-1 and A-3 have been accepted by the petitioner, were produced by her on three different occasions, i.e. in 1992, 2009 and 2015 respectively.
14. It is claim of the petitioner that certificate dated 24.4.2015 (Annexure A-3) was issued by the school authorities after verifying the ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 6 CWPOA No. 5011 of 2019 record. During pendency of petition before erstwhile H.P. Administrative Tribunal, record of Parivar Register of Gram Panchayat Charoli, village of in-laws of petitioner, Parivar Register of Gram Panchyat Jubbli, i.e. Village .
of parents of petitioner, was summoned. In Parivar Register of Gram Panchyat Charoli her date of birth was mentioned as 19.1.1962, whereas in Parivar Register of Gram Panchyat Jubbli her date of birth was shown as 1962, with a subsequent entry showing her date of birth 19.1.1962. The record was produced on 15.9.2015. After perusal of the record, it was observed by the erstwhile Administrative Tribunal as under:-
"Pariver Register of Gram Panchayat Charoli, the village of in- laws of the applicant, has been produced. The date of birth of the applicant has been recorded in the register as 19.1.62.
Parivar Register of Gram Panchayat Jubbli, that is, village of the parents of the applicant, has also been produced. The date of birth of the applicant has been shown of the 1962 in this register. There is erasing in the register before making this entry.
The endorsement about the date of birth of the applicant, that is, 16.1.1962 is made on the right hand side of the register without there being any corresponding endorsement in other entries. There is no date of making of the endorsement. Let photo copies of both these entries be placed on record. Birth Register of village Jubbli has not been produced and it is stated to have been gutted in fire regarding which FIR No. 59/2013, Police Station Chopal has been lodged.
Let record of Health and Education Department be made available on the next date of hearing."
Photocopy of register of Panchyat was also retained by the Tribunal, which is available on record.
15. On next date, i.e. 7.10.2015, Block Medical Officer of Health Department had informed that no record of date of birth was maintained in his office. With respect to record of Education Department, Mr.Jeet Singh ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 7 CWPOA No. 5011 of 2019 Central Head Teacher, GPS Kupvi appeared before the Tribunal on 8.3.2016 and stated that entire record of the period prior to 14.11.2012 was gutted in fire and date of birth of the applicant had been .
authenticated on the basis of Panchayat record and thereafter second certificate was issued to the applicant on 17.5.2013. It is apt to record that there is no certificate placed on record, which was issued on 17.5.2013. However, copy of certificates dated 7.5.1992 (Annexure R-2),
16. From the r to 17.5.2006 (Annexure A-1) and 24.4.2015 have been placed on record.
original record, it was observed by the Administrative Tribunal that there was erasing in the Parivar Register of Gram Panchyat Jubbli for showing the date of birth as 1962 on the right hand side of the register without there being any corresponding entry in the other entries, and there was no date of making the endorsement. However, record of Birth Register of Village Jubbli was not produced and it was informed that the record of Birth register of village Jubbli had gutted in fire regarding which FIR No. 59 of 2013 was registered in Police Station Chopal.
17. Claim of the petitioner is that school authorities verified the entries from the school record and then issued certificate dated 24.4.2015, whereas claim of Central Head Teacher of the school is that date of birth of the petitioner was authenticated on the basis of Panchayat Record. Whereas, record of the Panchayat regarding birth register of Village Jubbli was also gutted in fire in the year 2013. In these circumstances how and on what basis date of birth of the petitioner was verified by the authorities issuing School Leaving Certificate dated 24.4.2015, is a mystery.
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18. It is also noticeable that certificate dated 7.5.1992 R-2 (A-9) is indicating the name of student as Mastu Devi daughter of Premu with date of birth 21.5.1957 with endorsement that lady passed 5th class .
examination under Roll No. 857 by securing 142/250 marks. In this certificate date of admission in school has been mentioned as 12.8.1965 and date of school leaving is December, 1969. File Number of the School Leaving Certificate has been mentioned as 3. It indicates that Mastu Devi was admitted in the school at the age of 8 years in 1965 and she studied for 5 years in the school and passed 5th class in December, 1969 as a regular student. Whereas, claim of the petitioner in rejoinder is that she passed the examination of 5th class in 1992 as a private candidate and had submitted the said pass certificate after obtaining the same from school authorities in the year 1992 itself. A judicial notice can be taken of the fact that Government Primary School, Kupvi is situated in winter closing area where examinations are over in the month of December and academic session ends in the month of December and this fact is also evident from all three certificates, where examination month has been mentioned as December. Petitioner is claiming that she passed 5th class examination in the year 1992, meaning thereby that she passed it in December, 1992, but the certificate (R-2)(A-9) has been issued in the month of May, 1992, which falsifies the claim of the petitioner that she passed 5th class examination in the year 1992.
19. Further in certificate dated 17.5.2006 (A-1) file numbder has been mentioned as 5 with name of student as Mastu Devi indicating the date of birth of the student as 19.1.1962. In this certificate, date of admission has been mentioned as December, 1992 and date of passing ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 9 CWPOA No. 5011 of 2019 5th class as private candidate has also been mentioned as December, 1992, but endorsement that 'lady passed 5th class examination under Roll No. 857 securing 142/250 marks', is the same as to the certificates dated .
7.5.1992 and 24.4.2015. Petitioner in this certificate dated 17.5.2006 (A-
1) has been depicted as private candidate appeared in examination in December, 1992.
20. In certificate dated 24.4.2015 (A-3) there is overwriting in file number tempering it either from '3 to 5' or '5 to 3'. This certificate indicates name of student as Mastu Devi with date of birth 19.1.1962, with endorsement of passing of 5th class examination in December, 1991 as private candidate with same endorsement that 'lady passed 5th class examination under Roll No. 857, securing 142/250 marks'. In this certificate, there is no date of admission in or date of leaving the school.
21. Copies of admitted certificates are on record with different entries therein with respect to material particulars. In certificate dated 7.5.1992 (R-2)(A-9), petitioner is a regular student from 12.8.1965 to December, 1969, whereas in another two certificates, she is a private candidate, and as per certificate 17.5.2006 (A-1) she had passed 5th class in December, 1992, whereas as per certificate dated 24.4.2015 (A-3) she had passed 5th class examination in December, 1991 and claim of the petitioner is that she passed in 1992, meaning thereby in December 1992, but in such eventuality first certificate dated 7.5.1992 could not have been issued as at that time she had not passed the 5th class examination.
22. During pendency of petition before the High Court, record was again called from Education Department. In response thereto, it was communicated that the entire record of the school was gutted in fire on ::: Downloaded on - 28/03/2023 20:34:53 :::CIS 10 CWPOA No. 5011 of 2019 14.11.2012 and there is no record available related to petitioner and certificate dated 24.4.2015 (A-3) was issued by Jeet Singh Basta CHT of the School with further submission that only Jeet Singh Busta would be .
able to explain that on the basis of which record he had issued the certificate. As recorded supra, Jeet Singh had appeared before the Tribunal on 8.3.2016 and had claimed that he had authenticated entries in certificate (A-1) and (A-3) on the basis of Panchayat record, but it is a fact that except date of birth, no other record related to the admission, passing of examination and date of admission and school leaving is maintained by the Gram Panchyat. Further that record of the Panchayat was not produced with information that it was gutted in fire in the year 2013. Therefore, there was no record available in the school or Panchayat in the year 2015. There is nothing on record that how and on what basis certificate dated 24.4.2015 (A-3) was issued. However, this certificate cannot be considered as an authentic document for determining the date of birth of the petitioner.
23. Aforesaid facts and circumstances create suspicion about veracity of certificates or copies thereof produced and relied upon by the petitioner in support of her prayer. There is no cogent, reliable, authentic material on record to substantiate the claim of the petitioner to establish her date of birth as 19.1.1962. The material placed on record is of impeachable character and, thus, I do not find it a fit case, warranting interference in retirement of the petitioner effected in May, 2015.
24. In view of above discussion, case law relied on behalf of petitioner is of no help for her.
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The petition is dismissed in aforesaid terms, so also pending applications, if any.
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(Vivek Singh Thakur), th 27 March, 2023 Judge.
(Keshav)
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