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Judgment
O.P. Garg, J.—By means of this writ petition under Article 226 of the Constitution of India, it is prayed that the order dated 1021994, contained in Annexure 3 to the writ petition, passed by the Deputy Director of Education (for short ''DDE"), Vllth Region, Gorakhpurrespondent No. 1 and the order dated 1531994, contained in Annexure 5 to the writ petition, passed by District Inspector of Schools (for short ''DIGS''), Deoria respondent No. 2, be quashed.
Counter and rejoinder affidavits have been exchanged. Heard Sri Amar Nath Tewari, learned Counsel for the petitioner as well as Sri Amar Nath Misra, learned Counsel for the respondent No. 3and learned Standing Counsel on behalf of respondent Nos. 1 and 2, at considerable length.
Briefly stated, the facts of the case are that respondent No. 3, Ramjit, was appointed as Class IV employee in Janta Uchchtar Madhyamik Vidyalaya, Baikunthpur, District Deoria on 1101975 and his date of birth on the basis of School Leaving Certificate was mentioned as 2561933. On attaining the age of superannuation, i.e., 60 years, Ramjit was superannuated on the last date of the month, i.e., on 3061993. A dispute about the date of birth of Ramjitrespondent No. 3 was raised. According to him, his correct date of birth was 1881942 and, therefore, he could not be superannuated on 3061993. It was alleged that certain manipulations were made in the School records by erasing 1881942, which was originally mentioned as the date of birth and by substituting it by 2561933. An enquiry into the matter was instituted by DDE who by his letter dated 1021994 directed the DIGS to take necessary action by treating the correct date of birth of Ramjit as 1881942. The DIOS issued the impugned order dated 1531994 and directed the Manager of the institution to treat Ramjit in service and to make payment of his salary as his correct date of birth was 1881942, meaning thereby Ramjit could not be superannuated on 30693.
Learned Counsel for the Committee of Management urged that it was beyond the competence of the DDE to have determined the date of birth of Ramjit as 1881942 and to issue directions to the DIOS and that since the order superannuating Ramjit on 3061993 has become final and remains unchallenged, at any stage, there was no occasion for correcting his date of birth. It was also urged that with regard to class IV employees of an institution, the respondent Nos. 1 and 2 have no control and in any case, they are not legally entitled to correct the date of birth of respondent No. 3 Ramjit.
Learned Counsel for the petitioner took me through the School Leaving Certificate (Annexure 1 to the writ petition) in which the date of birth of the respondent No. 3 has been mentioned as 2561933 and the letter dated 231994 (Annexure 4 to the writ petition) addressed by the Manager of the institution to the DIGS with which a Photostat copy of the option of pay determination in form ''Cha'' submitted in the year 1982 was annexed. In this proforma, the date of birth of the respondent No. 3 has been shown as 2561933. According to the learned Counsel for the petitioner, the date of birth of the respondent No. 3 was correctly shown in the year 1982 and there was no occasion to manipulate the date of birth in the year 1982 as there was no dispute between the parties. It was also pointed out that the option form is duly signed by the respondent No. 3, Principal of the College and this then DIGS. Reference was also made to Annexure C.A. 9 to the counteraffidavit of respondent No. 3, Ramjit. It is a Photostat copy of the particulars of the employee. The date of birth mentioned therein as 2361933 has been scored out at two places and 1881942 has been substituted and counter signed by the Principal in the year 1991. On the strength of the above documents, the learned Counsel for the petitioner urged that it is well established that the correct date of birth of the petitioner was 2561933 and not 1881942, as directed to be corrected by the respondent Nos. 1 and 2. The seemingly simple submission made by the learned Counsel for the petitioner is not acceptable as from the facts, which may be narrated presently there is an entirely different picture of the controversy.
Originally, one Gopal Prasad Gupta was Principal of the College. It has come on record that during the tenure of Sri Gupta, a number of frauds were committed and documents interpolated. Ultimately, the services of Sri Gupta were terminated after due approval by the DIOS. Prior to the alleged superannuation of respondent No. 3, on 3061993, he had addressed an application to the Principal of the College that his date of birth, which was 1881942 and was entered in his service record, was deliberately and with a view to damage him, was changed to 2561933. He filed a copy of the Kutumb register. There were other employees also, whose dates of birth were interpolated. The Committee of five teachers of the School was constituted to go into the matter. Annexure C.A. 6 to the counteraffidavit of respondent No. 3 is the report of enquiry in which it was mentioned with regard to the date of birth of respondent No. 3 that the entry of 2561933 is doubtful and suspicious and correct date of birth should be taken as 1881942. On the basis of this report of the Committee, the correct date of birth, i.e., 1881942 was incorporated in the service record of respondent No. 3 and was duly counter signed by the principal. The case of the petitioner that the date of birth of respondent No. 3 as 2561933 was mentioned on the basis of the entry made in the School Leaving Certificate is further belied from the letter, contained in Annexure C.A. 2 to the counter affidavit, addressed by Head Master, Primary Pathshala, Noonkhar, Deoria that the name of Ramjit is not entered at serial number 85 in the School''s recordsand that the transfer certificate is forged and fictitious. This reply was sent by the Head Master, Primary Pathshala, Noonkhar, Deoria to the Principal of Janta Uchchtar Madhyamik Vidyalaya, Baikunthpur District Deoria in reply to the letter dated 30 41994. In view of letter at Annexure C.A. 2 to the counteraffidavit, the very foundation on which date of birth of the respondent No. 3 was mentioned as 2561933 (sic) shattered. Even the transfer certificate was found to be forged and consequently, there was no basis to record the date of birth of respondent No. 3 as 2561933. In the Kutumb register, the date of birth of respondent No. 3 Ramjit (Annexure C.A. 4 to the counteraffidavit) is mentioned as 1881942. This has been treated to be the correct date of birth and as was originally recorded in the service record. The report submitted by the Principal of the College to the Management was approved by Srikant Jaiswal, Manager of the Managing Committee on 211991 vide Annexure C.A. 8. From the various annexures annexed to the counteraffidavit of Ramjit it is well established that his date of birth was, in fact, 1881942 and this was this date, which was originally recorded in the service records of the College. As a result of certain manipulation and machinations, the said date of birth came to be interpolated the reasons there for are not too far to seek as 2561933. This interpolated date of birth was obviously wrong and incorrect. On the representation of the respondent No. 3 the enquiry was made and the date of birth as 1881942 was incorporated as it corresponds to the date of birth mentioned in the family register. The Manager of the petitionerCommittee was fully aware of this development and, as a matter of fact, the Principal of the College brought the above facts to his notice. After having come to know of the correct facts, it does not lie in the mouth of the Manager to assert that the date of birth of respondent No. 3 was 2561933 and on this basis, he had been superannuated on 3061993.
Learned Counsel for the petitioner made a reference to decision of Hon''ble Supreme Court in Union of India v. Harnam Singh, AIR 1993 SC 1367, in which it was held that entry of date of birth recorded at the time of entering into service and which continued to exist for 31/2 decades without challenge should not be corrected. He also relied upon another decision of Apex Court in Secretary and Commissioner, Home Department and others v. R. Kimvakamn, AIR 1993 SC 2647, wherein it was observed that in a matter of correction of date of birth the Court should be slow in granting the interim relief. According to the learned Counsel in view of the law laid down by Hon''ble Supreme Court, the date of birth of the respondent No. ''3 could not be changed from 2561933 to 1881942 and particularly by the respondent Nos. 1 and 2 who are not the appointing authority of class IV employees.
I have studied the aforesaid two decisions of the Apex Court and find that they do not apply on all four corners to the facts of the present case. Here, it is not a case of substituting a date of birth in place of the date of birth which was originally recorded in the service record. The present is a case in which the correct original date of birth recorded in the service record was interpolatedand, mutilated with ulterior motives. It was on account of fraudulent act that the original date of birth was substituted by another date of birth to the serious detriment of the respondent No. 3. The consequence of the fraud could not be prepeterated for all times to come. No sooner the fraud came to notice, it was undone and the date of birth which was originally recorded and should have been recorded, was restored. According to the learned Counsel, the DDE, respondent No. 1 and for that matter, DIOS respondent No. 2 were not justified in passing the impugned orders without affording opportunity to the Committee of Management. A complete answer to this submission of the learned Counsel for the petitioner is to be found in U.P Junior Doctors Action Committee v. Dr. B. Sheetal Nandwani and others, AIR 1991 SC 909, in which it was held that where the admission obtained by fraud was cancelled, opportunity of hearing was not required. In the instant case, the Manager of the Committee of Management was aware of the fact much before the alleged superannuation of the respondent No. 3 that the correct date of birth after enquiry has been found to be 1881942. There was no occasion for the respondent Nos. 1 and 2 to afford the opportunity of hearing to the petitionerCommittee.
A short and swift reference may also be made to the submission of the learned Counsel for the petitioner that the DDErespondent No. 1 was not emfawered to take a decision in the matter, his submission is not without force but the fact remains that the order in the instant case has been passed by the competent authority, i.e., DIOS, Deoria who has issued direction to the petitioner to treat the respondent No. 3 in service on the basis of the fact that his date of birth is 1881942. The DDE has addressed the communication to the DIOS to take action in the matter on a reference having been made by the DIOS himself on 11101993. The competence and authority of DIOS in the matter cannot be challenged.
In the result, the writ petition turns out to be devoid of any merits and which is accordingly dismissed.