Narsibhai Lavjibhai Khokhar. Vs. State of Gujarat and ors. - Court Judgment

Excerpt:
[aftab alam ; r.m. lodha, jj.] the appellant- university on march 1, 1996 issued an advertisement for filling up the posts of deputy registrar and assistant registrar by direct recruitment. the minimum qualification prescribed for appointment as assistant registrar was as under:-respondent no.1, who was an employee of the university, made applications both for the posts of deputy registrar and assistant registrar. respondents 4 and 5 were placed in the select list at ranks iv and v respectively. on the basis of the select list, prepared by the selection committee, respondent nos. 4 and 5 were appointed as assistant registrars. 5. the writ petition was opposed by the university. it was, accordingly, submitted that respondent no.1 was ineligible for appointment to the post of assistant registrar. the division bench found and held that respondent no.1 was not eligible to be considered for the post of deputy registrar and, hence, rejected his case in so far that post is concerned. coming, however, to the post of assistant registrar, the division bench took the view that selection committee had not assigned any reason for putting respondent nos. 4 and 5 above respondent no.1 in the select list. no material has been produced before us to show that it is the selection committee which upon assessment of merit of the appellant and respondent nos. 4 and 5, found appellant was less meritorious than the respondent nos. 4 and 5. in the first place the division bench overlooked that according to the statutory eligibility criterion only a section officer or a p.a.-cum-stenographer was eligible to be considered for appointment as assistant registrar and respondent no.1 was a head assistant. the division bench seems to have overlooked that while respondent nos. 4 and 5 were at ranks iv and v in the select list, respondent no.1 was at rank xiii and by brining him at par with respondent nos. 4 and 5, the division bench clearly ignored the claims of the seven candidates who figured in between from rank vi to xii and who were above respondent no.1.1. the petitioner is common in both the petitions. the issues arising in these petitions also overlap. the petitions are, therefore, heard together and are being disposed of by this common order.2. in special civil application no.5468/06, the petitioner a retired school teacher has challenged an order dated 30^th october, 2004 passed by the gujarat secondary education tribunal in appeal no. 263/02 to the extent the same is against the petitioner. the petitioner has also challenged an order dated 1/12/2005 passed by the government and has further prayed for releasing all the retrial benefits from the date of his retirement.3. in special civil application no.5052/06 the petitioner has challenged the action of the respondent no.6-school management in not issuing no due certificate to the petitioner on account of which the petitioner has yet not received full pensioner benefits. the petitioner has also prayed for releasing of the leave encashment to the credit of the petitioner.4. before deciding the controversy arising in these petitions short facts leading to filing of the present petitions need to be noted.5. the petitioner was employed as assistant teacher in k.k.high school, savarkundla which service he joined in the year 1963. it is the case of the petitioner that his correct date of birth is 19^th december, 1940 whereas on account of purely clerical error in the school leaving certificate the same was shown as 8^th december, 1937. it is the case of the petitioner that at the time of leaving the school the certificate of school leaving contained the date of birth of the student whose name was above that of the petitioner in the school register. it is in fact the case of the petitioner that in the school register the name of the petitioner is at serial no.7153 and the school register also indicates the date of birth of the petitioner as 19^th december, 1940. there is another student whose name is at serial no.7151 and whose date of birth is 8^th december, 1937. on account of pure error on part of the clerk preparing the school leaving certificate the date of birth of the petitioner in the school leaving certificate was shown as 8^th december, 1937.5.1 it is the also the case of the petitioner as well as the school management that the correct date of birth of the petitioner is 19^th december, 1940 and even in the ssc board records the same has been duly recorded.5.2 according to the petitioner since at the time of entering the service the date of birth of the petitioner was recorded as 8^th december, 1937, the petitioner realizing that he would have to retire three years earlier than his actual date of retirement, approached the school authorities after collecting necessary material in this regard. the school authorities were kind enough to take into consideration the entire material and correct the date of birth of the petitioner in the school records. on the basis of the correct date of birth the petitioner continued to discharge his duties as a teacher and retired at the end of the academic term w.e.f. 1^st june, 1999 having crossed 58 years of age in december, 1998.5.3. it is the case of the petitioner as well as the school management that during the extended period of petitioner's service he was paid salary from the government authorities under direct payment scheme. however at the time of preparation of pension papers of the petitioner, the government raised objection that the date of birth of the petitioner could not have been corrected by the school authorities without permission from the government. the petitioner, therefore, being unable to receive his full pensioner benefits approached the secondary education tribunal by filing application no. 262/02. his appeal came to be disposed of by judgment dated 30^th october, 2004. the tribunal observed that the question involved in the application is not whether the real and correct birth date of the petitioner is 8^th december, 1937 or 19^th december, 1940 but the question is whether the correction carried out in the service book is as per the government guidelines and whether the petitioner is entitled to claim the consequential benefits flowing from the same. in this regard, the tribunal came to the conclusion that ordinarily the government regulations do not permit correction of date of birth after five years. it was also observed that the representation made by the school for regularization of the controversy was still pending. it was observed that ultimately if the government finds sufficient reason to correct the date of birth it will be open to do so. it was however provided that if not so done it will be open for the government to recover the salary amount paid to the petitioner from the maintenances grant of the school. the prayer for granting other benefits including pensionary benefits were not accepted and the application was dismissed subject to the above observations. it is this order of the education tribunal which the petitioner has challenged in special civil application no. 5468/06.5.4. in any case since the petitioner is entitled to receive pension and other post retrial benefits even if his date of birth is accepted as 8^th december, 1937 and since such amounts were not fully paid, the petitioner has filed special civil application no. 5052/06 mainly contending that the school authorities have withheld no due certificate and leave encashment of the petitioner.6. this court had directed the school authorities to produce original register for the perusal of the court. learned advocate shri bipin jasani appearing for the school management had made available the original record, copies of which are retained in the record of these cases. i had perused the records only for primafacie satisfaction of the court regarding the averments made by the petitioner and not for deciding the factual controversies.7. learned advocate shri paresh upadhyay appearing for the petitioner submitted that the tribunal erred in not granting full benefits to the petitioner for the period of service he had actually rendered. he submitted that in case of the petitioner recording of the date of birth was genuinely a clerical error on account of which an correct date of birth was shown in his school leaving certificate. the school authorities have given a certificate to this effect. the board records also indicate that the petitioner was born in the year 1940 and not 1937. he submitted that even if the petitioner had requested for change of date of birth some what belatedly, considering overwhelming evidence on record such request should not have been turned down by the government or by the tribunal.7.1. he further submitted that there is no allegation of connivance between the petitioner and school management nor can the same be established from the record. he submitted that the original register of the concerned school unequivocally establishes that the correct date of birth of the petitioner was of 1940.7.2 he further submitted that in any case the school authority could not have withhold the no due certificate and the petitioner should have been paid full pensioner benefits as also his leave encashment by the respondents.8. on the other hand learned agp shri gori strongly opposed the petitions. primarily in special civil application no.5468/06 he submitted that it is not open for the school authorities unilaterally to change the birth date of the petitioner. he submitted that there was gross inordinate delay on the part of the petitioner to bring the discrepancy in recording his date of birth to the notice of the authorities. he submitted that in the present case delay itself is sufficient to refuse the prayers.8.1. he also submitted that the tribunal committed no error in refusing to grant any benefit to the petitioner for the extended period of service which the school permitted the petitioner to discharge without consent of the government.9. reliance was placed on the decision of hon'ble supreme court in the case of state of u.p. and anr. vs. shiv narain upadhyaya reported in (2005)6 scc 49, wherein the hon'ble supreme court was pleased to observe that date of birth as recorded in service book of the employee should be decisive and correction thereof can be sought only in accordance with procedure prescribed and within the time fixed under rules or order or within reasonable time in absence of any rules or order.9.1. reliance was also placed on the decision of hon'ble supreme court in the case of coal india ltd. and anr. vs. ardhendu bikas bhattacharjee and ors. reported in (2005) 12 scc 201 wherein the hon'ble supreme court was pleased to observe that an employee should not be permitted to seek change in his date of birth at the fag end of his service career.9.2. heavy reliance placed on the decision of u.p.madhyamik shiksha parishad and ors. vs. raj kumar agnihotri reported in (2005) 11 scc 465 wherein hon'ble supreme court held that where the government employee had himself declared his date of birth in high school examination form and the same was entered in high school certificate as well as in his service record, same cannot be allowed to be changed without recourse to law just a few years before his retirement.10. on the other hand learned advocate shri jasani for the school management while supporting the petitioner in his case for correction of date of birth, opposed the prayer made in special civil application no.5052/06 contending that the school management cannot be burdened with the salary paid to the petitioner.10.1. he submitted that there was unimpeachable evidence before the school to suggest that the petitioner was born in 1940 and not in 1937. the school management after correcting the date of birth permitted the petitioner to continue in service on the basis of the correction. the government continued to pay the salary to the petitioner fully aware that under the old date of birth the petitioner would have superannuated. he further submitted that the government cannot make recovery of the salary paid to the petitioner from the grant payable to the school. mr. jasani also submitted that the school management had also collected material from the ssc board and verified the correct date of birth of the petitioner.11. having heard learned advocates for the parties it can be seen straightaway that the school management has not challenged the decision of the tribunal. the petitioner was permitted to discharge his duties for three years more than what his original date of birth would have permitted. the school management did avail of the service of the petitioner. in that view of the matter regardless of the ultimate outcome of this issue, the school management atleast cannot avoid the liability to pay the salary to the petitioner both on the ground that the tribunal's judgment in so far as the school management is concerned has become final as also on the ground of quantum merit by which since the petitioner had discharged his duties for the additional period for the school, the school management would not be in a position to avoid the salary liability of the petitioner. whether the government should bear this burden or not and whether the petitioner i.e. concerned teacher should also receive pensionary benefits on the basis of such extended service is a different issue.12. so far as the claim of the petitioner for releasing of his full pensionary benefits and leave encashment at least on the basis of his birth date being that of 8^th december, 1937, therefore, must be accepted. the school management cannot withhold issuance of no due certificate since the petitioner is not liable to refund any part of the salary already paid to him.13. so far as the date of birth of the petitioner is concerned, neither the government nor the tribunal has come to any definite conclusion. in the present petition at the first instance atleast it would neither be possible nor appropriate for this court to undertake such an exercise. as noted earlier the case of the petitioner has been that his correct date of birth is 19^th december, 1940. it is only on account of merely clerical mistake that the date of birth of another student of the same school got entered in the school leaving certificate of the petitioner and that is how his school leaving certificate carried the date of birth of 8^th december, 1937. i have examined the original record of the concerned school and found prima facie that the claim of the petitioner cannot be summarily rejected.14. the tribunal also recorded in its judgment that though normally the government rules permit correction within five years, under certain circumstances even belated claim can be examined. when the petitioner entered the school service in the year 1963 he would not have been covered under the direct payment scheme. the petitioner, therefore, cannot be blamed for not approaching the government for correction of his date of birth soon after joining service.15. as noted earlier neither the government nor the tribunal has gone into the claim of the petitioner regarding his correct date of birth. there is sufficient material on record atleast to initiate an inquiry in this regard and to come to the definite conclusion on the basis of evidence that is available. as noted the tribunal also observed that the question is not whether the correct date of birth of the petitioner is 8^th december, 1937 or 19^th december, 1940. the question is whether the petitioner can claim consequential benefits on the basis of his having continued service on the basis of corrected date of birth.16. i am conscious of the fact that normally belated claims of change of date of birth are viewed with a degree of suspicion and in a given case it would even be open for the government to turn down the request solely on the ground of delay. however none of the decisions cited by learned agp suggest that under no circumstances even if there is overwhelming unquestionable evidence on record suggesting an error in recording the date of birth of an employee the same cannot be corrected under any circumstances. however, i propose to leave the entire question open for the government to consider in the light of the evidence that may be led as also consider effect of delay.17. it may be noted that while turning down the request of the school management to change the date of birth of the petitioner by order dated 1/12/2005, the government has neither heard the petitioner nor heard the school management nor come to a factual finding that the correct date of birth of the petitioner is of 1937 and not of 1940 as claimed by him. in that view of the matter, it would be appropriate to require the government to decide the question of date of birth of the petitioner and pass appropriate order in this regard.18. for the above purpose, the order dated 1/12/2005 is quashed. the petitioner is permitted to make a representation within a period of two weeks from today. on the basis of this representation the competent authority of the government will take a decision regarding the correction of date of birth of the petitioner after permitting the school authorities also to place on record its stand and the material at its command. the authority will take a decision expeditiously and preferably within three months from the date of receipt of the representation and pass a speaking order. the ultimate entitlement of post retiral benefits of the petitioner shall depend on the conclusion of the government in this regard. to the above extent the order of the tribunal stands modified. it is clarified that in any case the petitioner shall receive the reminder of the post retiral benefits including unpaid leave encashment on the basis of his date of birth being 8^th december, 1937. it is however clarified that solely on the basis of having discharged his duties as a teacher for the extended period so permitted by the unilateral action of the school management without approval of the government, the petitioner shall not be entitled to retrial benefits unless government accepts change of date of birth of the petitioner.19. with these directions both the petitions are disposed of and allowed to the above limited extent.

Judgment:
1. The petitioner is common in both the petitions. The issues arising in these petitions also overlap. The petitions are, therefore, heard together and are being disposed of by this common order.

2. In Special Civil Application No.5468/06, the petitioner a retired school teacher has challenged an order dated 30^th October, 2004 passed by the Gujarat Secondary Education Tribunal in Appeal No. 263/02 to the extent the same is against the petitioner. The petitioner has also challenged an order dated 1/12/2005 passed by the Government and has further prayed for releasing all the retrial benefits from the date of his retirement.

3. In Special Civil Application No.5052/06 the petitioner has challenged the action of the respondent no.6-School Management in not issuing no due certificate to the petitioner on account of which the petitioner has yet not received full pensioner benefits. The petitioner has also prayed for releasing of the leave encashment to the credit of the petitioner.

4. Before deciding the controversy arising in these petitions short facts leading to filing of the present petitions need to be noted.

5. The petitioner was employed as Assistant Teacher in K.K.High School, Savarkundla which service he joined in the year 1963. It is the case of the petitioner that his correct date of birth is 19^th December, 1940 whereas on account of purely clerical error in the school leaving certificate the same was shown as 8^th December, 1937. It is the case of the petitioner that at the time of leaving the school the certificate of school leaving contained the date of birth of the student whose name was above that of the petitioner in the school register. It is in fact the case of the petitioner that in the school register the name of the petitioner is at serial no.7153 and the school register also indicates the date of birth of the petitioner as 19^th December, 1940. There is another student whose name is at serial no.7151 and whose date of birth is 8^th December, 1937. On account of pure error on part of the clerk preparing the school leaving certificate the date of birth of the petitioner in the school leaving certificate was shown as 8^th December, 1937.

5.1 It is the also the case of the petitioner as well as the school management that the correct date of birth of the petitioner is 19^th December, 1940 and even in the SSC Board records the same has been duly recorded.

5.2 According to the petitioner since at the time of entering the service the date of birth of the petitioner was recorded as 8^th December, 1937, the petitioner realizing that he would have to retire three years earlier than his actual date of retirement, approached the school authorities after collecting necessary material in this regard. The school authorities were kind enough to take into consideration the entire material and correct the date of birth of the petitioner in the school records. On the basis of the correct date of birth the petitioner continued to discharge his duties as a teacher and retired at the end of the academic term w.e.f. 1^st June, 1999 having crossed 58 years of age in December, 1998.

5.3. It is the case of the petitioner as well as the school management that during the extended period of petitioner's service he was paid salary from the Government authorities under direct payment scheme. However at the time of preparation of pension papers of the petitioner, the Government raised objection that the date of birth of the petitioner could not have been corrected by the school authorities without permission from the Government. The petitioner, therefore, being unable to receive his full pensioner benefits approached the Secondary Education Tribunal by filing Application No. 262/02. His appeal came to be disposed of by judgment dated 30^th October, 2004. The Tribunal observed that the question involved in the application is not whether the real and correct birth date of the petitioner is 8^th December, 1937 or 19^th December, 1940 but the question is whether the correction carried out in the service book is as per the Government guidelines and whether the petitioner is entitled to claim the consequential benefits flowing from the same. In this regard, the Tribunal came to the conclusion that ordinarily the Government regulations do not permit correction of date of birth after five years. It was also observed that the representation made by the school for regularization of the controversy was still pending. It was observed that ultimately if the Government finds sufficient reason to correct the date of birth it will be open to do so. It was however provided that if not so done it will be open for the Government to recover the salary amount paid to the petitioner from the maintenances grant of the school. The prayer for granting other benefits including pensionary benefits were not accepted and the application was dismissed subject to the above observations. It is this order of the Education Tribunal which the petitioner has challenged in Special Civil Application No. 5468/06.

5.4. In any case since the petitioner is entitled to receive pension and other post retrial benefits even if his date of birth is accepted as 8^th December, 1937 and since such amounts were not fully paid, the petitioner has filed Special Civil Application No. 5052/06 mainly contending that the school authorities Have withheld no due certificate and leave encashment of the petitioner.

6. This Court had directed the school authorities to produce original register for the perusal of the Court. Learned advocate Shri Bipin Jasani appearing for the school management had made available the original record, copies of which are retained in the record of these cases. I had perused the records only for primafacie satisfaction of the Court regarding the averments made by the petitioner and not for deciding the factual controversies.

7. Learned advocate Shri Paresh Upadhyay appearing for the petitioner submitted that the Tribunal erred in not granting full benefits to the petitioner for the period of service he had actually rendered. He submitted that in case of the petitioner recording of the date of birth was genuinely a clerical error on account of which an correct date of birth was shown in his school leaving certificate. The school authorities have given a certificate to this effect. The Board records also indicate that the petitioner was born in the year 1940 and not 1937. He submitted that even if the petitioner had requested for change of date of birth some what belatedly, considering overwhelming evidence on record such request should not have been turned down by the Government or by the Tribunal.

7.1. He further submitted that there is no allegation of connivance between the petitioner and school management nor can the same be established from the record. He submitted that the original register of the concerned school unequivocally establishes that the correct date of birth of the petitioner was of 1940.

7.2 He further submitted that in any case the school authority could not have withhold the no due certificate and the petitioner should have been paid full pensioner benefits as also his leave encashment by the respondents.

8. On the other hand learned AGP Shri Gori strongly opposed the petitions. Primarily in Special Civil Application No.5468/06 he submitted that it is not open for the school authorities unilaterally to change the birth date of the petitioner. He submitted that there was gross inordinate delay on the part of the petitioner to bring the discrepancy in recording his date of birth to the notice of the authorities. He submitted that in the present case delay itself is sufficient to refuse the prayers.

8.1. He also submitted that the Tribunal committed no error in refusing to grant any benefit to the petitioner for the extended period of service which the school permitted the petitioner to discharge without consent of the Government.

9. Reliance was placed on the decision of Hon'ble Supreme Court in the case of State of U.P. And Anr. vs. Shiv Narain Upadhyaya reported in (2005)6 SCC 49, wherein the Hon'ble Supreme Court was pleased to observe that date of birth as recorded in service book of the employee should be decisive and correction thereof can be sought only in accordance with procedure prescribed and within the time fixed under rules or order or within reasonable time in absence of any rules or order.

9.1. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of Coal India Ltd. And Anr. vs. Ardhendu Bikas Bhattacharjee and Ors. reported in (2005) 12 SCC 201 wherein the Hon'ble Supreme Court was pleased to observe that an employee should not be permitted to seek change in his date of birth at the fag end of his service career.

9.2. Heavy reliance placed on the decision of U.P.Madhyamik Shiksha Parishad and Ors. vs. Raj Kumar Agnihotri reported in (2005) 11 SCC 465 wherein Hon'ble Supreme Court held that where the Government employee had himself declared his date of birth in High School examination form and the same was entered in High School Certificate as well as in his service record, same cannot be allowed to be changed without recourse to law just a few years before his retirement.

10. On the other hand learned advocate Shri Jasani for the school management while supporting the petitioner in his case for correction of date of birth, opposed the prayer made in Special Civil Application No.5052/06 contending that the school management cannot be burdened with the salary paid to the petitioner.

10.1. He submitted that there was unimpeachable evidence before the school to suggest that the petitioner was born in 1940 and not in 1937. The school management after correcting the date of birth permitted the petitioner to continue in service on the basis of the correction. The Government continued to pay the salary to the petitioner fully aware that under the old date of birth the petitioner would have superannuated. He further submitted that the Government cannot make recovery of the salary paid to the petitioner from the grant payable to the school. Mr. Jasani also submitted that the school management had also collected material from the SSC Board and verified the correct date of birth of the petitioner.

11. Having heard learned advocates for the parties it can be seen straightaway that the school management has not challenged the decision of the Tribunal. The petitioner was permitted to discharge his duties for three years more than what his original date of birth would have permitted. The school management did avail of the service of the petitioner. In that view of the matter regardless of the ultimate outcome of this issue, the school management atleast cannot avoid the liability to pay the salary to the petitioner both on the ground that the Tribunal's judgment in so far as the school management is concerned has become final as also on the ground of quantum merit by which since the petitioner had discharged his duties for the additional period for the school, the school management would not be in a position to avoid the salary liability of the petitioner. Whether the Government should bear this burden or not and whether the petitioner i.e. concerned teacher should also receive pensionary benefits on the basis of such extended service is a different issue.

12. So far as the claim of the petitioner for releasing of his full pensionary benefits and leave encashment at least on the basis of his birth date being that of 8^th December, 1937, therefore, must be accepted. The school management cannot withhold issuance of no due certificate since the petitioner is not liable to refund any part of the salary already paid to him.

13. So far as the date of birth of the petitioner is concerned, neither the Government nor the Tribunal has come to any definite conclusion. In the present petition at the first instance atleast it would neither be possible nor appropriate for this Court to undertake such an exercise. As noted earlier the case of the petitioner has been that his correct date of birth is 19^th December, 1940. It is only on account of merely clerical mistake that the date of birth of another student of the same school got entered in the school leaving certificate of the petitioner and that is how his school leaving certificate carried the date of birth of 8^th December, 1937. I have examined the original record of the concerned school and found prima facie that the claim of the petitioner cannot be summarily rejected.

14. The Tribunal also recorded in its judgment that though normally the Government rules permit correction within five years, under certain circumstances even belated claim can be examined. When the petitioner entered the school service in the year 1963 he would not have been covered under the direct payment scheme. The petitioner, therefore, cannot be blamed for not approaching the government for correction of his date of birth soon after joining service.

15. As noted earlier neither the Government nor the Tribunal has gone into the claim of the petitioner regarding his correct date of birth. There is sufficient material on record atleast to initiate an inquiry in this regard and to come to the definite conclusion on the basis of evidence that is available. As noted the Tribunal also observed that the question is not whether the correct date of birth of the petitioner is 8^th December, 1937 or 19^th December, 1940. The question is whether the petitioner can claim consequential benefits on the basis of his having continued service on the basis of corrected date of birth.

16. I am conscious of the fact that normally belated claims of change of date of birth are viewed with a degree of suspicion and in a given case it would even be open for the government to turn down the request solely on the ground of delay. However none of the decisions cited by learned AGP suggest that under no circumstances even if there is overwhelming unquestionable evidence on record suggesting an error in recording the date of birth of an employee the same cannot be corrected under any circumstances. However, I propose to leave the entire question open for the Government to consider in the light of the evidence that may be led as also consider effect of delay.

17. It may be noted that while turning down the request of the school management to change the date of birth of the petitioner by order dated 1/12/2005, the Government has neither heard the petitioner nor heard the school management nor come to a factual finding that the correct date of birth of the petitioner is of 1937 and not of 1940 as claimed by him. In that view of the matter, it would be appropriate to require the Government to decide the question of date of birth of the petitioner and pass appropriate order in this regard.

18. For the above purpose, the order dated 1/12/2005 is quashed. The petitioner is permitted to make a representation within a period of two weeks from today. On the basis of this representation the competent authority of the Government will take a decision regarding the correction of date of birth of the petitioner after permitting the school authorities also to place on record its stand and the material at its command. The authority will take a decision expeditiously and preferably within three months from the date of receipt of the representation and pass a speaking order. The ultimate entitlement of post retiral benefits of the petitioner shall depend on the conclusion of the Government in this regard. To the above extent the order of the Tribunal stands modified. It is clarified that in any case the petitioner shall receive the reminder of the post retiral benefits including unpaid leave encashment on the basis of his date of birth being 8^th December, 1937. It is however clarified that solely on the basis of having discharged his duties as a teacher for the extended period so permitted by the unilateral action of the school management without approval of the government, the petitioner shall not be entitled to retrial benefits unless government accepts change of date of birth of the petitioner.

19. With these directions both the petitions are disposed of and allowed to the above limited extent.