Allahabad High Court
Principal, Jagat Taran Girls Inter ... vs Deputy Director Education, Region-I, ... on 21 February, 2000
Equivalent citations: 2000(2)AWC1510, (2000)2UPLBEC1516
Author: V. M. Sahai
Bench: V.M. Sahai
JUDGMENT V. M. Sahai, J.
1. The dispute in this petition is whether the date of birth of respondent in the service book was rightly changed from 13.7.1944 to 13.7.1934 by the principal of Jagat Taran Girls Inter College. Allahabad (in brief institution) after lapse of more than twenty years from the date the first entry was made in the service book of the respondent.
2. The respondent No. 4 was appointed on a fixed salary as farrash, a class IV post in the institution on 27.10.1959. He was appointed regular peon on 1.8.1973. In the service book his date of birth was recorded as 13.7.1944. On 4.8.1993 the Deputy Director of Education made inquiry from the petitioner for granting selection grade to the respondent. On this, the petitioner started an inquiry and found that the date of birth was fictitiously changed from 13.7.1934 to 13.7.1944. She reached this conclusion because in the managers return of 1968-69 and 1969-70, the age of respondent was shown as 13.7,1934 whereas in the managers return of 1970-71 the date of birth was scored out and it was mentioned as 13.7.1944. The petitioner, therefore, corrected the entry after more than twenty years from 13.7.1944 to 13.7.1934 and retired respondent with effect from 31.7.1994. The petitioner on 1.8.1994 made a representation before District Inspector of Schools that the principal of the institution is not permitting him to sign the attendance register. The petitioner also made a representation to Regional Deputy Director of Education (Second) Fourth Region. Allahabad who on 17.8.1994 directed the District Inspector of Schools (Second) Allahabad to inquire and take decision in the matter. The District Inspector of Schools sent letter to the principal to submit service book of the respondent, the AR and MR at the time of first appointment, the proof that the respondent must have given about his date of birth, whether the respondent at the time of appointment was educated. If so, the proof of it. But the principal did not send the papers except referring that the respondent had retired. The respondent produced proof of passing primary examination (Class-V) in 1957 where his dale of birth was recorded as 13.7.1944. Since the principal did not submit the documents the District Inspector of Schools by his order dated 29.11.1994 held that the date of birth recorded in service book of the petitioner as 13.7.1944 was correct. He referred to the order of the Government dated 28.5.1974 directing that date of birth recorded in high school certificate or similar examination or entered in service book should be taken as correct. The District Inspector of Schools held that entry in service book tallied with entry in school leaving certificate, therefore, the respondent's date of birth as entered in service book was correct. On these findings, he set aside the order of the principal and continued the respondent No. 4 in service. It is this order dated 29.11.1994 Annexure-2 to the petition, which is under challenge in this writ petition.
3. I have heard Shri S. B. Singh learned counsel for the petitioner and Shri Krishnaji Khare learned counsel appearing for respondent No. 4 and learned standing counsel appearing for respondent Nos. 1 to 3.
4. Learned counsel for the petitioner has urged that in view of managers return and other documents filed along with the writ petition, the petitioner's date of birth has to be treated as 13.7.1934 and the petitioner has rightly been retired on 31.7.1994. He further urged that if the date of birth is accepted as 13.7.1944 then in that case when the petitioner was appointed on 27.10.1959, he would have been a minor of fifteen years, therefore, 13.7.1934 is the correct date of birth of the petitioner.
5. On the other hand, the learned counsel appearing for respondent No. 4 has urged that in 1959 the respondent may have been a minor but since the petitioner appointed him in 1959 and he continued in service, the petitioner is estopped from challenging the initial appointment of the respondent. He has further urged that the respondent was given a fresh appointment on the post of peon oh 1.8.1973 on regular basis and at that time, he was major and in manager's return and service book his date of birth was correctly recorded as 13.7.1944. He further urged that at the time of his initial appointment in the manager's return of 1959 his date of birth was not mentioned. After about nine years it was wrongly recorded in manager's return as 13.7.1934 which was corrected in 1970-71. In subsequent manager's return date of birth of the respondent was mentioned as 13.7.1944. The learned counsel urged that the respondent produced certificate of passing primary examination (Class V) before the Inspector of Schools. In this certificate, the date of birth is mentioned as 13.7.1944. The Inspector of Schools accepted it as correct. The petitioner has not challenged the certificate. Respondent produced school leaving certificate of primary examination (Class V) of April 1957 and the certificate dated 23.4.1957 issued by Sub-District Inspector of Schools. Allahabad mentions the date of birth of the respondent as 13.7.1944. Lastly, it is urged that long-standing entry with regard to date of birth of the respondent could not have been corrected after about twenty years, and the respondent could only be retired in July 2004.
6. The respondent was appointed on a Class IV post on 27.10.1959 on a fixed salary. At the time of appointment, his date of birth was not mentioned. In manager's return of 1968-69. 1969-70, date of birth of respondent was shown as 13.7.1934. In manager's return of 1970-71, the dale of birth of respondent was corrected to read as 13.7.1944. In manager's return of 1971-72 to 1972-73, date of birth of respondent is mentioned as 13.7.1944. When his service book was prepared in 1974, after respondent's regular appointment, the date of birth entered was 13.7.1944. This entry continued till March 1994. In January 1994, the petitioner inquired from the respondent about his date of birth as there was discrepancy in the earlier and the later managers return. The respondent sent a reply that at time of his appointment as peon he informed, the then principal that he had passed Class V in 1957 and his date of birth was mentioned as 13.7.1944. The letter sent by petitioner and reply given by respondent have been filed as Annexure-31 to writ petition. The petitioner, thereafter, wrote a letter dated 9.3.1994 to the ex-principal Mrs. N. Bhattacharya as to how the date of birth of the respondent was corrected from 13.7.1934 to 13.7.1944 on which Mrs. N. Bhattacharya wrote on the same day that entries in the service book of the respondent was made on the basis of manager's return. Since the ex-principal did not mention about the school leaving certificate, the petitioner inferred that the entry was fictitious. She did not doubt the school leaving certificate or called upon the respondent to produce it, but corrected the entry of date of birth of the respondent from 13.7.1944 to 13.7.1934 in the service book on 21.3.1994, as according to her the entry in managers return of 1970-71 was fictitious.
7. The basic issue that has arisen is whether the petitioner was justified in law in changing the date of birth in the service book from 13.7.1944 to 13.7.1934. It is true that on the date of birth entered in the service book, the petitioner must have been aged fifteen years in 1959 when he was appointed as farrash. But that cannot be basis for treating him to be born in 1934. In 1959 he was appointed farrash on a fixed salary. For such appointment no service book was needed. Therefore, if the appointing authority for any reason due to physique, appearance, etc., thought it proper to appoint respondent as farrash, it could not alter his date of birth. Similarly, the entry in managers return could not be deemed as final. There is nothing on record to indicate how date of birth was recorded as 13.7.1934 in 1968-69. 1969-70 and how it was changed to 13.7.1944 in 1970-71. The petitioner does not appear to have made any inquiry about it. Fictitious is a strong term. It cannot be assumed. There should have been material to establish that the entry in the managers return was scored out at the instance of respondent deliberately and illegally. The circumstances on the other hand show that the earlier entry was wrong. In absence of any material to show that the school leaving certificate was not genuine, the entry in managers return of 1968-69 and 1969-70 was obviously incorrect. In any case, once the respondent's service was regularised and service book was prepared and his date of birth was recorded as 13.7.1944, it could not be altered except for very strong reasons. The entry in service book is sacrosanct. It could not be scored out after twenty years. When the petitioner issued notice to respondent in January 1994, he replied that he had passed Class-V and his date of birth was recorded as 13.7.1944. He mentioned that at the time of preparation of service book, he informed of it orally to the principal. May be the then principal did not consider it necessary to call for it and she relied on the entry in managers return of 1970-71. In any case, once the respondent informed the petitioner of the certificate it was duty of petitioner, if she had any doubt about it, to verify from the school. But it could not be ignored because the earlier principal wrote that she had made entry on managers return. The best evidence for date of birth is the entry in birth register and in absence of it, the school register. Since the respondent's date of birth as 13.7.1944 was entered in the school, the petitioner could not ignore it. The entry in managers return of 1970-71 and service book tallying with school certificate, it was in accordance with law. The petitioner did not submit any material before the District Inspector of Schools in support of her claim that the entry in service book was fictitious. She further did not produce the papers asked for by the District Inspector of Schools nor she submitted the proper reply to his queries. Even in this petition no material has been filed to show that the entry was fictitious. The District Inspector of Schools, therefore, did not commit any error in passing the impugned order. The order passed by him thus does not suffer from any error of law.
8. This was sufficient to dispose of this petition. But the learned counsel for the petitioner has placed reliance on the inquiry made by the Associate District Inspector of Schools, on direction of the District Inspector of Schools at the instance of the petitioner during pendency of this petition and argued that the petition is liable to be allowed as the fresh inquiry made leaves no room for doubt that the petitioner correctly altered the date of birth of the respondent in the service book. The inquiry report and the order of the District Inspector of Schools forwarding the report to the petitioner for necessary action were filed along with a supplementary affidavit on 11.2.2000. The respondent counsel filed supplementary counter-affidavit. He also filed an application for summoning the District Inspector of Schools and the petitioner as any inquiry without any order of this Court amounted to interference with course of justice. It is alleged that the inquiry having been made without any information or notice to the petitioner, it was contrary to the principles of natural justice. The learned counsel argued that the inquiry was motivated, malicious and undertaken to defeat the claim of the respondent. In the supplementary rejoinder-affidavit, the allegation that the inquiry was made without any notice to the respondent is not denied.
9. I am not issuing any notice to the petitioner and the District inspector of Schools as the learned counsel for the respondent is more anxious for early disposal of the writ petition. He is not interested in any action against the petitioner or the District Inspector of Schools. But I consider it necessary, after closely examining the material, to record my strong disapproval of the crude and undesirable manner in which the petitioner and the present District Inspector of Schools/Deputy Director of Education have attempted to overreach this Court.
10. This petition was dismissed in default on 8.12.1999. In law the effect of the order was that the impugned order became final. On 15.1.2000, the District Inspector of Schools appears to have made surprise Inspection of the college. She made inquiries about two fourth class employees including the respondent who had filed writ petitions in this Court. The petitioner did not inform the District Inspector of Schools that the writ petition filed against the respondent had already been dismissed. On 17.1.2000, she sworn an affidavit in support of the restoration application which was presented before this Court on 18.1.2000. On the same day, that is. 18.1.2000 when the restoration application was presented, she wrote a letter to the District Inspector of Schools referring to her surprise inspection on 15.1.2000 and informed her that the respondent was retired as she found his date of birth as 13.7.1934 but his representation was allowed by then District Inspector of Schools who directed that the respondent be permitted to work and paid his salary. She further pointed out that on the basis of the order by the District Inspector of Schools, the Deputy Director of Education also passed similar order. She mentioned that in consequence of these orders when the pressure on the petitioner increased and the salary of other staff was withheld, she approached the High Court and the order passed by the District Inspector of Schools was stayed. She was aware on the date when she sent the letter dated 18.1.2000 that the petition filed by her had been dismissed, yet for obvious reasons she deliberately withheld this information from the District Inspector of Schools. The District Inspector of Schools too on her part without caring that the earlier order passed by her predecessor was subject-matter of writ petition in this Court, directed the Associate District Inspector of Schools on 22.1.2000 to make fresh inquiry regarding the date of birth of the respondent. The report is on the record. It is clear from it that no notice of the fresh inquiry was given to the respondent. The Associate District Inspector of Schools on the information furnished by the principal and after examining the matter held that the date of birth of the respondent was 13.7.34. In his report, he has repeated that the entry in service book was fictitious, as there was nothing to prove how the entry in manager's return in earlier years was changed in 1970-71. The Associate District Inspector of Schools did not refer to the entry in school leaving certificate which was the basis of order passed by the earlier District Inspector of Schools.
11. The purpose of mentioning the fact after dismissal of the writ petition in default on 8.12.1999 and the letter dated 8.2.2000 by the District Inspector of Schools to the petitioner for necessary action on the report of Associate District Inspector of Schools is two-fold, one that the entire proceedings commencing from the report of the principal to the District Inspector of Schools on 15.1.2000, to sending of letter by the petitioner to the District Inspector of Schools on 18.1.2000 and her direction to Associate District Inspector of Schools to make inquiry on 22.1.2000 were before the petition was restored without any order or direction by this Court were wholly illegal. The effect of the order dated 8.12.1999 was that the order of District Inspector of Schools dated 29.11.1994 became final. An order dismissing a writ petition in default resulted in finality of the order as much as it would have been affirmed on merits. Till the order was recalled or set aside by a higher court, the petitioner and the District Inspector of Schools were bound by it. They could not take steps to nullify it. The second reason is that the District Inspector of Schools under the U. P. Intermediate Act exercises certain powers over the employees of the institution. Once an order passed by the principal was challenged before the educational authorities, as happened on representation of the respondent, and an order was passed then it could be set aside or recalled by higher authority or Court. It could not be reversed or recalled directly or indirectly by successor District Inspector of Schools. If the petitioner felt that she committed default in not producing the entire papers as required by earlier District Inspector of Schools and if the papers would have been produced they could have resulted in a different conclusion, then she could have produced them in this Court or filed an application and obtained an order or direction by this Court for fresh inquiry. If the petitioner and the District Inspector of Schools are permitted to reopen the matter which had become final on their own merely because the earlier order was not to their liking, it would result in eroding the rule of law.
12. The petition was restored on 27.1.2000. The Associate District Inspector of Schools submitted the report on 7.2.2000 after making inquiry when the petition was pending adjudication in this Court. This was highly undesirable. Once the petition was restored, the matter became subjudice. The petitioner or the District Inspector of Schools could not render the proceedings infructuous by this impermissible method. To that extent the learned counsel for the, respondent is fully justified in urging that they deliberately have attempted to interfere with course of justice. 1 do not propose to say any further as after perusal of the report. I am satisfied that it was not only against propriety, law but the inquiry was made and report submitted in breach of principles of natural justice. In the application filed by the respondent, the allegation that the inquiry was made without information to him or giving opportunity of hearing is not denied. Further the Associate District Inspector of Schools did not care to verify the authenticity of the school leaving certificate which was the basis of earlier order. He accepted petitioner's case only because if 13.7.1944 is accepted as respondent's date of birth then he would have been fifteen years of age. The inquiring authority did not even refer to the Government Order on the subject of age. In any case, it was most unsatisfactory manner of attempting to nullify the effect of earlier order passed by District Inspector of Schools.
13. For the reasons given above, the writ petition fails and is accordingly dismissed. The petitioner and respondent No. 3 are directed to reinstate respondent No. 4 in service and pay his entire arrears of salary within a period of two months from the date a certified copy of this order is produced before respondent No. 3.
14. Parties shall bear their own costs.