HIGH COURT OF MADHYA PRADESH AT JABALPUR Writ Petition No :
19496. OF 200.N.L. Lilhare - V/s - State of M.P. & others Present : Hon’ble Shri Justice Rajendra Menon. ---------------------------------------------------------------------------------------- Shri Shreyas Pandit, learned counsel for the petitioner. Shri Rajesh Tiwari, learned GA the for respondent/ State. ------------------------------------------------------------------------------------------- ORDER
( 26/07/2012) Challenging the orders passed by the respondents as contained in Annexure-P1 dated 30.5.2002 & Annexure-P2 dated 24.5.2002 retrospectively retiring the petitioner w.e.f. 31.8.2000 by passing the aforesaid order on 30.5.2002 and contending that he has been retired contrary to the date of birth recorded in the service book, petitioner originally filed the original application under the State Administrative Tribunal Act, 1985 before the M.P. State Administrative Tribunal and due to winding up of the tribunal, matter stands transferred to this Court.
2. It is seen from the records that petitioner was appointed on 13.6.1963 on the post of Surveyor of Soil Conservation in the Agricultural Development Office. Based on the documents and material that were provided by the petitioner at the time of 2 appointment, the particulars were entered in the service book and in the year 1963, his date of birth in Column-5 of the Service Book, as is evident from Annexure-R1, was entered as 14.8.1940. The said entry continued upto the year 1975, when on 11.4.1975, the competent authority corrected the date of birth in the service book and indicated that the date of birth of the petitioner is 19.10.1942, this was done on the basis of a representation and claim made by the petitioner for correction of his date of birth.
3. Accordingly, entries made in Column-5 of the service book in the year 1963 was corrected and treating the date of birth to be 19.10.1942, petitioner was permitted to work beyond 31 st of May, 2000. It seems that in May, 2002, the competent authority came across the Higher Secondary School Certificate Examination mark- sheet of the petitioner, in which his date of birth was entered as 14.8.1940 and considering the fact that the date of birth initially mentioned in service book was based on this certificate, it has been changed and corrected by the then Assistant Soil Conservator in an improper manner, even though, no orders were passed for correcting the date of birth, the impugned action, retiring the petitioner retrospectively w.e.f. 31.8.2000 by treating his date of birth as 14.8.1940, was taken. This act of retrospectively retiring the petitioner and unilaterally changing his date of birth as 19.10.1942 to 14.8.1940 is challenged before this Court.
4. Shri Shreyas Pandit learned counsel for the petitioner argues that after 11.4.1975, the date of birth officially recorded by the department in the service book is 19.10.1942, this continued from 3 the year 1975 onwards for all purpose, even for the purpose of maintaining seniority, grant of promotion and all other consequential benefits, the date of birth of the petitioner was treated as 19.10.1942, was so reflected in all the documents like seniority list, I.D.Card etc. and even when he had attained the age of superannuation as per the date of birth being 14.8.1940, the same was ignored and taking note of the date of birth as 19.10.1942, he was permitted to work upto 30.5.2002 when all of a sudden, the impugned action is taken.
5. Shri Shreyas Pandit submits that the date of birth recorded as 19.10.1942 in the service book is not being changed unilaterally without hearing the petitioner and without granting him opportunity of hearing, this action of the respondents is unsustainable. That apart, Shri Shreyash Pandit points out that when the date of birth of the petitioner, as is mentioned in the School Leaving Certificate, was not correct, the petitioner represented and submitted an affidavit, a certificate issued by the then competent authority under the statutory provision pertaining to Registration of Death and Birth and submitted the same Annexure-A5 i.e. certified copy of the extract from the birth register of the petitioner maintained by the competent authority in which the date of birth of the petitioner is shown as 19.10.1942. Based on these records in the year 1975, the date of birth of the petitioner was corrected and not after a period of more than 27 years, a decision is taken unilaterally to retire the petitioner, which is unsustainable”
6. Accordingly, contending that the change of date of birth ordered by the respondents in the manner done is unsustainable, interference into the matter is sought for.
7. Shri Rajesh Tiwari, learned counsel for the respondents refutes the aforesaid and points out that as the original date of birth of the petitioner, which was based on the certificate admissible for recording the date of birth in accordance with circular issued by the State Government and as the then Assistant Soil Conservator in the year 1975 has committed illegality in correcting the date of birth, based on certain documents issued by the Police Department, the competent authority has only rectified the error committed by the Assistant Soil Conservator in the year 1975 and it is stated that in doing so, no error is committed.
8. It is the case of the respondents that when in the Higher Secondary School Certificate Examination Mark-sheet Annexure- RII, date of birth is shown as 14.8.1940 and when this date was entered in Column 5 of the service book in the year 1963, there was no necessity for correcting the date of birth and as a mistake was committed by the Assistant Soil Conservator, the same was corrected by the competent authority and as it has been done correctly, accordingly, it is argued that no error is committed warranting interference in this petition.
9. I have heard learned counsel for the parties and perused the records. As far as factual assertions made by the parties are concerned, there is no dispute. It is an admitted position that when the petitioner was appointed initially in the year 1963 on the basis 5 of the Mark-sheet produced by him, his date of birth was originally recorded as 14.8.1940, however, on representation made by the petitioner and on certain evidence being produced, the competent authority of the department corrected the date of birth in the year 1975 and entered the date of birth as 19.10.1942. The entry made with regard to correction of Date of Birth on 11.4.1975 continued for more than 27 years and it was only in the year 2002 that a decision is taken for treating the date of birth as 14.8.1940 and retiring the petitioner.
10. Before doing so, the respondents have neither issued any notice to the petitioner not heard him not have produced any material to show as to what was the error committed by the officer in correcting the date of birth in the year 1975. Once the date of birth of the petitioner is corrected in the year 1975 and it was entered as 19.10.1942, the date of birth as per service book becomes 19.10.1942 and certain legal rights accrues to the petitioner by virtue of the said entry. As this entry in the service book has been modified or changed then it was incumbent upon the respondents to first correct the service book and change the date of birth after following such procedure as contemplated under law pertaining to correction of date of birth, neither any procedure is followed for correcting the date of birth not the basic principle of hearing (Natural Justice) is followed before correcting the date of birth. not only the aforesaid irregularity or illegality is committed, Even before this Court also in this petition, it is only stated that the then 6 Assistant Soil Conservator in the year 1975 unauthorizedly corrected the date of birth, which should not have been done.
11. However, nothing is shown as to what was the error committed by the said authority and why this illegality was permitted to remain for 27 years.
12. It is tried to be emphasized in the return that it came into the knowledge of the respondents only in the year 2002, this contention of the respondents cannot be accepted. The service book of the employee is opened, sealed and entries made every year for various purposes, when pay fixation is done and when various other service benefits are to be granted, entries are made in the service book and in the normal circumstances, if not, more than atleast on two to three occasions every year, the service book of the employee is opened and certain entries are made by the competent authority. If the entry made in the year 1975 was incorrect, it is surprising that none of the authorities, who are custodian of the Service Book for more than 27 years have pointed out this mistake.
13. The justification given by the respondents for permitting the entry to remain for 27 years cannot be accepted by this Court. Infact no justification is given and it is only stated that the error was not detected. If the error was not detected and the employee was given the benefit of the entry made in the service book till the year 2002, i.e. even after his so called original date of retirement in the year 2000, the respondents cannot No.retrospectively retire the petitioner in the manner done by correcting his date of birth”
14. The act of the respondents, which is complained of in this writ petition amounts to correcting the date of birth of the employee that also without hearing and without following the due process of law. The justification given by the respondents for correcting the date of Birth cannot be accepted. the date of birth of the petitioner in the year 1963 was indicated as 14.8.1940 and on 11.4.1975, it was corrected, with effect from the year 1975, the date of birth as entered in the service book became 19.10.1942 and, therefore, the date of birth of the petitioner as entered in the service book was 19.10.1942 and if the respondents wanted to change the same, they should have followed the process of law i.e. issue notice to the petitioner, hear him, cause an enquiry into the manipulation and the error that has been committed, inform the petitioner as to how and why the said error has accrued and why the documents submitted by him for correction cannot be accepted, then pass a separate order after considering the explanation of the petitioner.
15. Nothing of the aforesaid has been done, instead behind the back of the petitioner, he has been retired retrospectively. This act of the respondents cannot be accepted and as indicated hereinabove, before correcting or changing the date of birth of the petitioner, certain rights have been accrued to the petitioner and this right could not be taken away in the manner done. Even before this Court the justification for changing the entry, respondents have only stated that the entry has been corrected on the basis of an affidavit submitted by the petitioner and certain documents produced by the Police Authorities, this assertions of the respondents, prima-facie 8 seems to be incorrect. The so called documents produced vide Annexure-A5 pertains to Registration of Birth and Death and it was only issued in the year 1975 and it is not a document issued by the Police Authorities, it is issued by the competent authority for Registration of Birth and Death.
16. Even if the respondents felt that the documents, on the basis of which, the correction was ordered on 11.4.1975 was not proper, or document was not acceptable, then also a enquiry into the documents should have been conducted and then only date of birth could have been changed, once this document was accepted in the year 1975.
17. Keeping in view the aforesaid facts, I am unable to uphold the change made by the respondents unilaterally as indicated hereinabove. Accordingly, it is a case where the entry made in the service book of the employee is corrected behind his back without hearing him. Even before this Court, no proper justification or reason is given, which can be upheld by this Court.
18. Accordingly, in the facts and circumstances, finding the action of the respondents is found to be wholly unsustainable, the petition is allowed. order impugned Annexure-A1 dated 30.5.2002 and Annexure-A2 dated 24.5.2002, retiring the petitioner w.e.f. 31.8.2000 is quashed. Respondents are directed to treat the petitioner's date of birth to be 19.10.1942 and treating him to have worked till the date of superannuation on such consideration, hold him to have retired on 19.10.2002 and grant him all the consequential benefits accruing thereto”
19. As the petitioner has already received the salary and other benefits upto 31.5.2002, till which date he has worked, the period from 1.6.2002 to 19.10.2002 be termed as “No Work No Wages”., this Court does not deem it appropriate to grant salary to the petitioner for this period. However for all other practical purposes, including for grant of pension and other post retiral benefits, petitioner be deemed to have retired on 19.10.2002 and all his dues settled accordingly.
20. The amount of salary paid to the between 31.8.2000 to 31.5.2002, which has been recovered shall be refunded back to the petitioner or adjusted while re-fixing his post retiral benefits in accordance with this order. The claim of the petitioner be settled in furtherance to this order within a period of three months from the date of receipt of certified copy of this order.
21. With the aforesaid, the petition stands allowed and disposed of. Certified copy as per rules. ( RAJENDRA MENo.) JUDGE nd