Sumer vs State of U.P. and Others

A.P. Sahi, J.—Heard learned Counsel for the petitioner Sri A. K. Tiwari and learned standing counsel for respondent Nos. 1 to 4.

The petitioner retired as a class IV employee. After his retirement at the time of final payments with regard to the post retiral benefits, certain deductions were made on the ground that he has been allowed to work in excess of the date of superannuation for 2 years and, as such, the said amount has been recovered.

The petitioner filed this writ petition with the allegation that the change in the date of birth was processed by the competent authority after intimating it to the educational authorities, who have certified the date of birth of the petitioner as 7.1.1942. In view of this, the petitioner was entitled to continue for another 2 years and the respondents have consciously paid the salary to the petitioner after the date of birth was corrected in the service-book in the year 1999 itself. Sri Tiwari has invited the attention of the Court to Annexures-4 and 5 of the writ petition to contend that the petitioner''s certificate relating to date of birth was verified by the Basic Education Officer, Farrukhabad, whereafter the District Inspector of Schools had raised a query on 1.8.2000 to which a proper reply was given by the Manager on 5.8.2000. It is, thereafter, the District Inspector of Schools continued to pay the salary to the petitioner and, therefore, it will be presumed that the educational authorities had accepted the change of date of birth as brought about in the service-book.

When the adjustment was made from the post retiral benefit of the petitioner under the order dated 8.9.2003, this writ petition was filed praying for quashing of the aforesaid deduction and the aforesaid facts were brought on record. A counter-affidavit has been filed by the Manager supporting the claim of the petitioner. The State has, however, filed a counter-affidavit through District Inspector of Schools, Kannauj, resisting the claim of the petitioner on the ground that the said action of the authorities of the institution in correcting the date of birth was without jurisdiction and they collusively proceeded to allow the petitioner to continue for additional 2 years beyond his correct date of birth which was earlier recorded as 19.3.1940. It has been stated in the counter-affidavit that such a change in the date of birth was made after 25 years of service of the petitioner and the same is impermissible under the Rules, therefore, the recovery has rightly been made from the post retiral benefits of the petitioner. In rejoinder Sri Tiwari submits that even otherwise there was no fraud or misrepresentation on the part of the petitioner and everything was done in accordance with Rules and the application for correction of date of birth was duly moved before the competent authority and has been processed. To support his submissions, learned Counsel has relied on the decision in the case of State of Bihar and Others Vs. Pandey Jagdishwar Prasad,

I have perused the decision as also the records and it is evident that the change in the date of birth was initiated at the instance of the petitioner himself and the Principal and the Manager of the institution entertained the application of the petitioner which was allegedly processed and the date of birth was corrected. The petitioner was allowed to continue on this ground for another period of 2 years.

With regard to the correction of the date of birth, the State Government has framed Rules known as "U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974. The said Rules have been made applicable to the education department which has been stated in the counter-affidavit. Rule 3 of the said Rules is quoted below:

(3) The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a Government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service-book at the time of his entry into Government service, shall be deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall he entertained for correction of such date or age in any circumstances whatsoever.

A perusal of the aforesaid Rules would leave no room for doubt that an application for change of date of birth cannot be entertained at all by the appointing authority. The language is prohibitory in nature and, therefore, the petitioner''s application for change of date of birth could not have been entertained by the Principal. Consequently, any action taken pursuant to such request for change of date of birth was without jurisdiction.

Apart from this, the Supreme Court in a series of decisions has already ruled that the change of date of birth should not be admitted at the fag end of the career. The petitioner was to retire according to his earlier date of birth in the year 2000 and the entire effort to get his date of birth changed was made a few months before his date of retirement. It is, therefore, evident that the effort was made at the fag end of the career which also is not permissible in view of the decision of the Supreme Court. Reference may be had to the decision in the cases of Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, and State of U.P. and Another Vs. Shiv Narain Upadhyaya,

So far as the decision relied upon by the learned Counsel for the petitioner is concerned, that was a case where there were 2 dates of birth entered in the service-book and the Supreme Court after assessing the facts found that the correct date of birth was that which was entered in the matriculation certificate. On the facts of that case the Supreme Court, therefore, ruled that since there was no fraud or misrepresentation on the part of the employee, no recovery can be made. The facts of the said case are entirely different from the facts of the present case where the petitioner himself had initiated his change of date of birth at the fag end of his career. Accordingly, the said decision is of no avail in the present matter.

The writ petition, therefore, lacks merits and is dismissed.