Court No. - 58
Case :- WRIT - A No. - 23919 of 2003 Petitioner :- Ganga Prasad Alias Ganga Ram Yadav Respondent :- Managing Director U.P. State Bridge Corporation Ltd. And Ors.
Counsel for Petitioner :- Shailendra Kumar Singh,Awadhesh Kumar Yadav,Nikhil Kumar,P.K.Pandey Counsel for Respondent :- C.S.C.,B.N.Rai,P.N. Rai,Pranjal Mehrotra,Prateek Chandra
Hon'ble Ashwani Kumar Mishra,J.
1. The writ petitioner has described himself as Ganga Prasad alias Ganga Ram Yadav S/o Ram Narayan Yadav, R/o Village – Gendua, Post Office – Bhitia Kalan, Tehsil – Menhdawal, District – Sant Kabir Nagar. At the time, when he filed the writ petition in the year 2003, he was working as Helper Group 'B' at Ganga Setu Saidpur, District Ghazipur. He has challenged orders dated 30th April, 2003 and 6th of May, 2003, whereby his representation made against proposed retirement has been rejected and he has been made to retire at the age of 58 years w.e.f. 31st of May, 2003. Petitioner's date of birth has been treated by the respondents to be 3.5.1945 while according to petitioner his date of birth is 1.1.1965.
2. Relevant facts which emerge from a perusal of record are taken note of at the outset. It is admitted that petitioner was initially appointed as a daily-wage employee in the U.P. Bridge Corporation Ltd. Gorakhpur in 1984. Having continued for about three years, the petitioner was placed in the category of monthly paid Helper in Group 'B' in 1987. His status was altered w.e.f. 1.4.1987. According to respondents, the petitioner's service book was prepared at that stage. The petitioner continued in service and was transferred to Deoria in 1996. He was thereafter transferred to Mathura on 16.3.1998. It appears that the Contributory Provident Fund of the petitioner was not being deducted and, therefore, the authorities of the Corporation stationed at Mathura, called for original service records of the petitioner for such purposes and the same was received sometime in 1998-99. It is at this stage that respondents determined petitioner's date of birth as 3.5.1945. According to respondents, this date of birth was recorded from the very initial stage when the service book was prepared in 1987.
3. The respondents have also produced original service book and other records of the petitioner alongwith which a certificate of a doctor has been produced which bears 3.5.1990 as the date. The name of person examined medically by the doctor is mentioned as Ganga Ram and in the parentage part, the name appears to have been scored off, and in a different handwriting, the father's name is mentioned as Ram Narayan. The doctor appears to have opined that age of the person examined is about 45 years. The certificate bears the signatures of one Ganga Ram. The certificate is issued by the Chief Medical Officer, Deoria. It may be noticed at this stage that petitioner was not posted at Deoria on 3.5.1990, rather, he was posted at Gorakhpur. Petitioner is otherwise not a resident of Deoria.
4. According to the respondents, the certificate of the doctor tallies with their original records, inasmuch as, once he was found to be about 45 years in the year 1990, his date of birth would work out to sometime in 1945, which is what is mentioned in the service book. The original service book has also been produced before the Court, pursuant to an order passed by this Court, on previous occasion. At Serial No. 5 of the service book, which is the date of birth by the Christian era, there exists a date which has been removed by putting a whitener and it has also been scored off. The date of birth which appears to have existed earlier in the service book stands removed by the use of whitener whereafter the date of birth is mentioned as 3.5.45. The overwriting is apparent, both, with regard to date of birth and the endorsement of the Chief Medical Officer of 1990 appears to have been added subsequently.
5. Parties are at issue, as to who is responsible for this cutting, inasmuch as, the respondents have endeavoured to suggest that all this was done at the instance of the petitioner to derive unfair advantage.
6. The petitioner, on the other hand has annexed a High School Certificate alongwith the writ petition, as per which, petitioner's date of birth is 1st of January, 1965. This certificate bears Roll No. 632762 and has been issued to one Ganga Prasad Yadav S/o Ram Narayan. Petitioner claims with the aid of this certificate that he has passed High School in 1983, which was prior to his joining the services of the respondent-Corporation. According to the respondents, however, this certificate belongs to someone else as in the service records the name of petitioner is Ganga Ram Yadav and not Ganga Prasad Yadav.
7. Another factual aspect requires narration at this stage. There exists an employee by the name of Ganga Ram in the Deoria office of the Corporation. He belongs to Scheduled Tribe and is son of late Mahesh. Similarity of names of petitioner vis-a-vis Ganga Ram S/o of late Mahesh appears to have greatly influenced the decision of corporation. His original service book has also been produced, which refers to his date of birth as 3.5.1945, as per certificate issued by CMO Deoria, dated 3.5.1990. The CMO Certificate, which is produced by the respondents and made the basis for determining petitioner's date of birth incidentally is by the same officer and of the same date i.e. 3.5.1990.
8. Petitioner alleges that when his service records were transmitted to Mathura, the respondents erroneously forwarded details of Ganga Ram S/o late Mahesh and his date of birth previously recorded correctly in the service book was scored off and the date of birth of Ganga Ram S/o late Mahesh was incorporated in his service book. It is contended that the respondents have interpolated his date of birth in the service record by erroneously treating him as Ganga Ram S/o late Mahesh, who was a different employee. Service Book of Ganga Ram S/o late Mahesh also contains his signature, which apparently is quite similar to the signature that is found on the certificate of Chief Medical Officer, Deoria, dated 3.5.90, which according to respondents, is of the petitioner.
9. The petitioner further alleges that his date of birth was correctly mentioned in his service book earlier as 1.1.1965 and that the respondents erroneously scored it off and inserted the date of birth of Ganga Ram son of late Mahesh, as being that of the petitioner, and thereby have illegally made him to retire w.e.f. 31st May, 2003.
10. It appears that this aspect of the matter was brought to the notice of petitioner in 1999 only and at that stage itself the petitioner promptly represented before the Corporation. However, as his grievance was not attended to, he approached this Court by filing Writ Petition No. 3706 of 2003, in which a direction was issued by this Court on 22nd April, 2003 to decide his representation. This order was produced before the authorities alongwith a representation. The competent officer rejected petitioner's representation by a three line order, which states that as per records available he would attain the age of superannuation on 31st of May, 2003. Aggrieved by this order, the petitioner is before this Court.
11. The respondents have filed a counter affidavit and have stated that petitioner's date of birth is 3.5.1945, throughout, in the service record and that whatever manipulations or cutting etc. are made in the service record it is all at the instance of the petitioner to derive unfair advantage.
12. The matter was heard at length on 19.9.2018 and following orders were passed:-
“The dispute in the instant petition is with respect of the date of birth of the petitioner Ganga Prasad @ Ganga Ram Yadav S/o Ram Narayan Yadav.
Learned counsel for the petitioner has pointed out that in fact the date of birth of the petitioner Ganga Ram Yadav is 01.01.1965 which is available with the original record whereas while issuing a letter dated 02.06.1999, issued by the Deputy Project Manager U.P. State Project Corporation Limited Unit Mathura, the date of birth of the petitioner is mentioned as 03.05.1945. Learned counsel for the petitioner has further submitted that the said date of birth relates to another person namely Ganga Ram S/o of Mahesh Prasad who is posted at district Deoria, which is inadvertently mentioned in the above mentioned letter which creates the confusion.
In the aforesaid background, it would be appropriate to ascertain the correctness of the claim of the petitioner with regard to his date of birth. In view of this, the entire original service record of the present petitioner as well as other person namely Ganga Ram S/0 Mahesh be placed before this Court on the next date fixed.
Learned counsel for the petitioner has also pointed out that the other person named Ganga Ram S/o Mahesh is posted in unit Deoria on the post of Beldar of Group B.
This Court therefore, directs that the service records of both the above mentioned persons namely the petitioner and Ganga Ram be placed.
Let this petition be listed before this Court on 24.10.2018, at the top of the list.”
13. Pursuant to the aforesaid directions, original records have been produced, both of the petitioner as well as Ganga Ram S/o late Mahesh. The Attendance Register, etc., has also been produced by the respondents to show that petitioner had throughout signed as Ganga Ram Yadav and that he is not Ganga Prasad Yadav. The petitioner has also appeared in person before the Court and has been identified by the learned counsel for the petitioner. Learned counsel for the petitioner also submits that from his mere looks he cannot be said to be a person who was of 58 years in 2003.
14. I have heard Sri Awadhesh Kumar Yadav for the petitioner and Sri Pranjal Mehrotra for the respondents and have also perused the records. On the basis of contentions advanced by both the sides, following issues arise for determination in this matter:-
(i) Whether petitioner's date of birth as 3.5.1945 claimed by the respondents existed in the service records of petitioner from the very beginning, or it has been so recorded, subsequently, by deleting the earlier entry on the basis of valid records?
(ii) Whether the petitioner Ganga Ram Yadav has been able to substantiate his claim that he is the same person to whom High School Certificate is issued vide Roll No. 632762 in 1983, in the name of Ganga Prasad Yadav S/o Ram Narayan, and that both are one and the same person.
(iii) Whether service records pertaining to Ganga Ram S/o late Mahesh has been relied upon for determining the petitioner's date of birth, after deleting petitioner's earlier date of birth recorded in the service book, as is alleged?
15. The original service book of the petitioner has been produced by the respondents. On the top of the service book the name of the petitioner is recorded as Ganga Ram Yadav, Helper. The first entry in the service book is of an order of Managing Director dated 28th April, 1987, according to which, the petitioner was granted monthly pay- scale in Group 'B'. His date of appointment is shown as 1.4.1987. Subsequent entries also show that his pay in substantive appointment was fixed w.e.f. 1.4.1987 onwards. This service book, therefore, clearly shows that it was prepared sometime in 1987 as entries of that year are clearly incorporated in it. The service book, once was being prepared in 1987, it can be safely inferred that petitioner's date of birth would also have been mentioned at that stage itself. This is so, because a specific clause exists in the service book, which requires date of birth of the employee, by the Christian era, to be specifically mentioned therein. No records have been produced by the respondents, which may show, that any basis existed with the respondents in the form of medical certificate of the petitioner etc. in 1987. The service book clearly shows that some date of birth was mentioned in the service book which had been scored off by use of whitener. After removing the original entry regarding petitioner's date of birth the following undated endorsement is made in the petitioner's service book:-
^^3@5@90 dks 45 lky ¼eq[; fpfdRlkf/kdkjh] nsofj;k ds izek.k i= ds vuqlkj½ tUefrfFk 3&5&45^^
16. The entry included in the service book, therefore, clearly shows that it is upon the basis of certificate of Chief Medical Officer, Deoria, that petitioner's date of birth is mentioned as 3.5.45. The stand of the respondents, therefore, that petitioner's date of birth was mentioned as 3.5.45 right from the initial preparation of service book, cannot be accepted. The records clearly reveal that some other date of birth was originally mentioned in petitioner's service book which was scored off and then a different date of birth is mentioned relying upon the certificate issued by the Chief Medical Officer.
17. At this stage, it would, therefore, become necessary to examine the medical certificate dated 3.5.90, which is made the basis for recording petitioner's date of birth in his service book. The certificate of Chief Medical Officer, Deoria, dated 3.5.90 is also on record. On 3.5.1990, the petitioner was not posted at Deoria, nor was he a resident of district Deoria. The respondents have not explained as to in what circumstances the petitioner had to get himself medically examined by CMO Deoria when he was posted at Gorakhpur. The certificate shows that it is issued to one Ganga Ram. So far as parentage is concerned, a cutting is made and name of Ram Narayan appears to have been mentioned later. The father's name even in the later part of certificate appears to have been added in a different handwriting and would clearly suggest that it was incorporated later. The signature of Ganga Ram which is mentioned on the certificate dated 3.5.1990 is at variance from the signatures of petitioner, which are produced before the Court, inasmuch as petitioner has signed as Ganga Ram Yadav and not Ganga Ram. The certificate dated 3.5.1990 records that age of person examined is about 45 years. The service book of Ganga Ram S/o late Mahesh, who was in fact employed at Deoria in 1990, has also been produced, wherein signatures of Ganga Ram appears to be similar to the signature of person who was examined by the doctor in the certificate dated 3.5.1990.
18. From the records produced, this Court is inclined to accept petitioner's contention that the medical certificate dated 3.5.1990, issued by CMO Deoria, and relied upon by the respondents for determining petitioner's date of birth, was actually issued to Ganga Ram S/o late Mahesh, working in Corporation's office at Deoria, then. This is quite apparent, once it is viewed alongwith cutting in the petitioner's service book, and also the fact that petitioner was not even posted at Deoria, then.
19. This issue appears to have cropped up only in the year 1998- 99, when the petitioner was transferred to Mathura. He was not allocated CPF Number by the authorities and, therefore, his PF contribution was also not being deducted. The authorities at Mathura appear to have called for the service records of the petitioner from Deoria where from petitioner was transferred to Mathura. It appears that alongwith the service record the medical certificate issued to Ganga Ram S/o late Mahesh was sent by the authorities of the Corporation at Deoria and on its basis the date of birth recorded in petitioner's service record was scored off by use of whitener and his age was mentioned relying upon the certificate issued by CMO Deoria.
20. Petitioner states that having come to know about it, he immediately represented before the authorities that his date of birth is not as 3.5.1945 and that his date of birth is 1.1.1965. His representation has been rejected by the order impugned. The authorities appear to have acted in a very causal and cursory manner, inasmuch as, none of the petitioner's contention appear to have been examined.
21. Coming next to the issue of High School Certificate, claimed by the petitioner to belong to him, it transpires that this certificate has been issued by the U.P. Board on 16th June, 1983 and bears Roll No. 632762. The name of student is mentioned as Ganga Ram Yadav S/o Ram Narayan and the date of birth is shown as 1.1.1965. Petitioner asserts that Ganga Prasad Yadav and Ganga Ram Yadav are one and the same person.
22. Alongwith the writ petition a certificate has been produced of Gram Panchayat Adhikari, as per which, petitioner is Ganga Prasad alias Ganga Ram Yadav S/o Sri Ram Narayan, R/o Village – Gendua, Bhitia Kalan, Police Station Menhdawal, District Sant Kabir Nagar. A certificate of the Principal of Pal Uchchatar Madhyamik Vidyalaya, Siddharthnagar has also been produced in which it is mentioned that Ganga Prasad Yadav alias Ganga Ram Yadav are one and the same person and that he had passed High School in the Session 1982-83 as a regular student of his Institution. Certificate of Gram Pradhan has also been produced to the same effect. The electoral roll used in the Panchayat Election of the year 1999 has also been produced, in which at Item No. 1002, name of Ganga Prasad S/o Ram Narayan is mentioned. These materials have been annexed alongwith the writ petition to specifically assert that petitioner's name is Ganga Prasad alias Ganga Rama Yadav. In the counter affidavit though averments in that regard are denied but no specific material has been annexed to rebut the categorical evidence led on behalf of the petitioner.
23. It is stated on behalf of the respondents that the High School Certificate bears a different name, therefore, petitioner cannot have any claim to it nor can he take advantage of such certificate. This aspect, however, would not be conclusive. The assertion of respondents in that regard is not liable to be accepted in view of the fact that specific evidence led on behalf of the petitioner to show that Ganga Prasad and Ganga Ram Yadav are one and the same person, has not been disputed by producing any contrary document. It is otherwise not shown that any other person with the name of Ganga Prasad Yadav existed in the same village.
24. The writ petition has remained pending for the last 15 years and the respondents had sufficient time to get the facts ascertained or produce any material which may show that High School Certificate produced by the petitioner did not belong to him or that it belongs to someone else. Mere difference in the name of student would not be sufficient to dislodge petitioner's plea that it belongs to him, particularly, when name of father is same and other supporting materials produced on behalf of the petitioner have not been effectively rebutted. Apart from this document, no other material has been placed on the basis of which petitioner's date of birth appear to have been recorded. This is so, once the certificate of CMO Deoria, dated 3.5.1990, is not found to pertain to the petitioner. From the appearance of petitioner, who has been recognized by his counsel in Court today, the argument that he cannot be said to be a man who would be above 70 years as on date, appears to have substance.
25. In the facts and circumstances as have been brought on record, the Court is inclined to accept petitioner's contention that the High School Certificate, annexed as Annexure No. 1 to the writ petition, belongs to the petitioner and that his date of birth was mentioned as 1.1.1965 therein. At this stage, it would also be relevant to refer to Clause 'M' (Date of Birth) of the Standing Orders for workmen employed in U.P. State Bridge Corporation, which regulates the determination of date of birth of the present petitioner. Clause 'M' is reproduced hereinafter:-
“M-1. All categories of workmen shall, on first appointment submit proof of age. Following documents shall be deemed to be satisfactory proof of age of workman on entering the corporation's service:-
(a) School Leaving Certificate.
(b) Birth Certificate.
M-2. A workman who is unable to produce any of the above documents in support of his age shall have to give an affidavit made before a first class Magistrate or such workman shall be got examined by the Registered Medical Officer or any other Doctor authorised by the management in this behalf and findings of the Medical Officer as to the workman's age shall be binding on all concerned.
M-3. The age of workman as recorded with the corporation at the time of his employment shall not thereafter be changed or altered by the workman.”
26. As per the aforesaid standing orders, workmen on first appointment is required to submit proof of age and that school leaving certificate or transfer certificate would be relevant for such purposes. In absence of such a certificate, a notary affidavit or a certificate of registered medical officer would be determinative of the age. Clause M-3 further provides that age of the workman as recorded at the time of his employment, shall not be changed or altered by the workman. It has already been noticed that except the High School Certificate, no other document existed on record in 1987 at the time when petitioner's service book was prepared. It is only in the absence of school leaving certificate, that a certificate of doctor, evidencing the age of workman, would have to be relied upon. In case respondents were to contend that petitioner had not produced any school leaving certificate and that a medical certificate had then to be relied upon, then such a certificate ought to have been obtained in 1987 itself and not in the year 1990. It has otherwise been found that the certificate of CMO Deoria dated 3.5.1990 did not pertain to the present petitioner. There was apparently no justification for entertaining a medical certificate of 1990 after scoring off the earlier date of birth recorded in the service book prepared in 1987 by using a whitener. The cutting in the date of birth entry otherwise exists. Once an entry had been made in the service record and the service book was maintained in the office of the respondents itself, the onus would be upon the respondents to show as to how and why the date of birth entry was changed later. The respondents have failed to discharge their onus in that regard.
27. The endeavour on the part of the Corporation to rely upon the certificate issued on 3.5.1990 to Ganga Ram S/o late Mahesh, has been found to be unsustainable for the reasons already recorded. It has otherwise been noticed that in the service book of Ganga Ram S/o late Mahesh, his date of birth is also mentioned as 3.5.1945. The respondents, therefore, appear to have changed the petitioner's date of birth mentioned earlier and thereafter substituted it by manipulating the records and relying upon the certificate issued to another person i.e. Ganga Ram S/o late Mahesh.
28. On the basis of materials and original records produced before the Court, this Court finds that the petitioner has been treated most unfairly by the Corporation, inasmuch as, his date of birth has been unilaterally scored/deleted by using whitener and thereafter a new date of birth has been recorded without any notice to him. The basis for such change is otherwise not related to him. The Corporation, therefore, has not been able to justify their action impugned in the writ petition.
29. For the reasons and discussions aforesaid, the writ petition is liable to succeed. The writ petition, accordingly, is allowed. The orders dated 30th April, 2003 and 6.5.2003 are quashed. Petitioner since has not yet attained the age of 58 years, therefore, he would be allowed to continue in service, till he attains the age of superannuation. His date of birth would be treated as 1.1.1965, in accordance with the High School Certificate, annexed as Annexure 1 to the writ petition. He would also be entitled to arrears and continuity of service. The Corporation shall extend all benefits as are found due and admissible to him treating his continuance in service since 1.4.1987. The petitioner shall also be entitled to costs of the proceedings assessed at Rs. 10,000/-.
30. As petitioner's service book has been found to have been manipulated without any order passed by the competent authority of the Corporation, it would be open for the Corporation to get the matter enquired into and fix the responsibility of the person who appears to have caused unnecessary harassment for the petitioner and to recover the costs from him.
Order Date :- 30.1.2019 Ranjeet Sahu