Ram Lakhan Rai vs District Basic Education Officer, Maharajganj and another

Sanjay Misra, J.—Heard Sri Vivek Rai Advocate holding brief of Sri G.K. Singh learned Counsel for the petitioner and learned Standing Counsel for the respondents. Counter and rejoinder affidavits have been exchanged.

The petitioner claims to have been appointed as an Assistant Teacher in an educational institution run by the Basic Shiksha Parishad, Maharajganj (respondent No. 2) and is aggrieved by the order dated 24.1.2000 (Annexure 1 to the writ petition) whereby it has been ordered that the salary paid to the petitioner for the period 30.6.1994 to 30.6.1998 is to be recovered from his retiral dues on the ground that the date of birth entered in his service record as 16.9.1937 ought to have been 16.9.1933.

Learned Counsel for the petitioner has argued that the petitioner had not made any application for correction of his date of birth. At the time when the petitioner was given employment in the year 1958 as an untrained teacher, he had filed his Junior High School certificate which indicated his date of birth as 16.9.1937 and accordingly, he has worked and has been retired on 30.6.1998 by giving the benefit of continuing till the end of the academic session. He states that the impugned order has been passed on the complaint of some person and it has been recorded that at the time when the petitioner was given employment in the year 1953 he could not have attained the age of majority. According to him, such finding recorded in the impugned order is patently erroneous since the petitioner was given appointment as an untrained teacher in the year 1958. Learned Counsel for the petitioner has placed reliance upon a decision of the Hon''ble Apex Court in the case of U.P. Madhyamik Shiksha Parishad and others v. Raj Kumar Agnihotri, 2005 (2) LBESR 602, in support of his contention.

Learned Standing Counsel has defended the impugned order by saying that if the petitioner had passed his Junior High School in the year 1952 and he was given employment in the year 1953, it is quite apparent that the petitioner was a minor and could not have been taken in service. He refers to paragraph 4 of the counter affidavit to say that the petitioner was appointed in 1953 and not in 1958.

Having considered the submissions of learned Counsels for the parties, it will be seen that the denial made by the respondents regarding the date of appointment of the petitioner is not supported with any document or evidence nor the appointment letter has been filed whereas the petitioner has clearly stated in paragraph 2 of the writ petition that he was given appointment in the year 1958 in Prathinik Pathshala Jaishree as an untrained teacher. Consequently, if the petitioner was given appointment in 1958, it cannot be said that he was a minor at that time.

Moreover, the impugned order recites that an enquiry was made regarding the genuineness of the Junior High School certificate of 1952 and it could not be ascertained as to from which school or which centre the petitioner had appeared for the Junior High School examination and therefore, the certificate appears to be forged. It is on that basis that the respondents have disbelieved the date of birth of the petitioner entered in the Junior High School certificate and have recorded that the date of birth entered in the primary school as 16.9.1933 is to be taken as correct. It will be seen that when the respondents could not make any verification regarding the genuineness of the certificate, they could not have come to the conclusion that such certificate is forged. Such cannot be a reason to declare a certificate as forged when the respondents themselves conducted the enquiry and could not verify that it was a forged or fictitious certificate. Therefore, the aforesaid finding in the impugned order is arbitrary and cannot be upheld.

Insofar as the date of birth of the petitioner is concerned, it is settled law that the date of birth entered at the time of entry into service will be deemed to be correct date of birth and after the employee has served and retired, a correction for change in the date of birth cannot be made or directed. The rules for correction of date of birth are very clear and a time frame has been given therein which is in any case not more than five years within which correction can be sought or made. In the present case, the respondent authority has disbelieved the date of birth of the petitioner entered at the time of entry into service much after the petitioner had been retired in accordance with the date of birth entered in his service record. Clearly, the same was not permissible in view of the law laid down by the Hon''ble Apex Court. The impugned order, therefore, cannot be upheld where it is recorded that the date of birth of the petitioner should be read as 16.9.1933 on the basis of the primary school register and since he has continued to work on the basis that his date of birth was 16.9.1937, the salary paid to him after 30.6.1994 upto 30.6.1998 requires to be recovered from him. Since the impugned order cannot be upheld for the reasons given therein, it requires to be set aside and the recovery ordered from the retiral benefits of the petitioner cannot be made against him.

For the aforesaid reasons, the writ petition stands allowed. The impugned order dated 24.1.2000 (Annexure 1) stands quashed. The respondents cannot recover the salary paid to the petitioner for the period 30.6.1994 to 30.6.1998 paid to him for the work which he has done during that period.

No order is passed as to costs. Petition allowed.