JUDGMENT R.K. Mahajan, J.
1. This writ petition is unusual and extraordinary in its awn nature as this Court's experience is that the Government servants have been filing writ petitions regarding correction of date of birth to claim age benefit after superannuation on one reason or the other but this writ petition has been filed by the petitioner whose grievance is that Shri Zubair Ahmad, respondent No. 3, was born on 4.1.1941 and he joined the services in the High Court as Lower Division Clerk on 9.4.1962 on the basis of order dated 17,2.1962 as a result of competitive examination held by the High Court in April. 1961. He was appointed Bench Secretary Grade II by order dated 24.7.1979 and was also promoted as Bench Secretary Grade I on 31.5.1990. According to Gradation List of Bench Secretary Grade I (Annexure No.-2), the respondent No. 3 is placed at Sl. No. 1 and Shri Ambika Narain and Shri V. K. Pandey are placed at SI. Nos. 2 and 3 respectively.
2. It may be mentioned that there are two posts of Bench Secretary Grade I which are having Senior Pay Scale of Rs. 3,000-4,500, whereas the scale of Bench Secretary is Rs. 2,000-3.500. Petitioner's claim is that the respondent No. 3 manipulated his date of birth wrongly in his Service Book as 4.1.1941 when his Service Book was prepared on 19.1,1959 to get undue benefit to extend his length of service illegally. He further submits that minimum age for Joining the service for Class III and Class IV employees is 18 years. The petitioner's grievance is that the respondent No. 3 has completed more than 40 years of service and he must have completed 18 years of age when he was appointed on 1.2.1957 and the respondent No. 3 should have been retired on 31.1.1996. The petitioner further alleges that the respondent No. 3 has completed more than 40 years of service and as per rules and by any stretch of imagination, he should have been retired on 31.1.1996 instead of 31.1.1999. The petitioner further submits that he stands a fair chance as seniormost for consideration of promotion to this post which the respondent No. 3 is Illegally and without any authority occupying. In short, the claim of the petitioner is that the respondent No. 3 entered in service on 1.2.1957 when he was minor and his entry in service was illegal and ultra vires to the rules.
3. The petitioner has filed the present writ petition regarding his claim that he is working in Summer Vacation for the last 4-5 years and his work has been appreciated by Hon'ble Judges also and he deserves to be appointed in place of respondent No. 3. He further avers that despite representation to the Hon'ble the Chief Justice for considering him as Bench Secretary Grade I in senior pay scale, no effective action has been taken. The petitioner has filed the present writ petition for the following reliefs :
"(a) issue a writ, order or direction in the nature of mandamus directing the respondent Nos. 1 and 2 to declare the continuation of respondent No. 3 as Bench Secretary Grade I (senior pay scale) as Illegal and without Jurisdiction and declare him to deem to have been retired having already completed more than 40 years of service.
(b) issue a writ, order or direction in the nature of quo-warranto question the authority of respondent No. 3 after completing more than 40 years of service.
(c) issue a writ, order or direction in the nature of prohibition restraining the respondent No. 3 from continuing on the post of Bench Secretary Grade I (senior pay scale) after completion of more than 40 years service, the full and complete length of service which a Government servant can enjoy.
(d) issue any other writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
(e) award costs to the petitioner,"
4. The respondent No. 3 Zubair Ahmad filed counter-affidavit as well as supplementary counter-affidavit. He has not disputed that his date of birth is 4.1.1941 and he filed a copy of certificate of Matriculation as Annexure No. CA-I to the counter-affidavit. It has been submitted by him that he was validly appointed under Rules, i.e.. Condition of Service of Staff. 1946 by the competent authority. He further averred that false complaint has been made against him levelling wild allegations which violates Government Servants Conduct Rules. 1956. He denied any danger of life from the petitioner and he had communicated adverse entry to the petitioner. He also alleged that the petitioner had been off and on shifted from one Court to the other with the approval of the Registrar. In supplementary counter-affidavit, it has been mentioned by Shri Zubair Ahmad, respondent No. 3. that prior to the candidates who were minors out of them two persons, namely. Sri Gopal Ji Srivastava (present S. O. Writ A-II whose date of birth is 18.4.1941) and Shri A. K. Datta (present S.O. Admin-E whose date of birth is 19.3.1944) are still working in this Court due to the fact that there was no age bar in the Service Rules framed in 1946.
5. Counter-affidavit has also been filed on behalf of High Court by Shri T. M. Khan, O.S.D. (Litigation). The plea of the High Court is that the date of birth of respondent No. 3 is 4.1.1941 and his Service Book shows that the respondent No. 3 firstly Joined on 1.2.1957 in the office of Government Advocate and not at High Court, Allahabad. His services were discontinued on various reasons in the office of Government Advocate but in the High Court, he is working as Lower Division Assistant without any break w.e.f. 3.10.1960. It is further alleged that according to the instructions appended with the Service Regulations, the service rendered before the age of 18 years shall not be accounted for qualifying service. It is further alleged that boy service, i.e., service rendered before the age of 16 or 18 years as the case may be shall not be counted for qualifying service. It is further alleged that "boy service" was not barred when the respondent No. 3 was appointed in High Court while he was below the age of "18 years". It is averred that the petitioner is barred from taking plea of validity of appointment as well as date of retirement of respondent No. 3 alleged by him. It is also mentioned that the petitioner has not come with clean hands. It is also alleged that the Rules of 1976 are not applicable as they were not in existence at the time of appointment of respondent No. 3. The petition has been described as misconceived and devoid of merits.
6. Shri B. P. Singh, learned counsel for the petitioner stated that the respondent No. 3 was minor at the time of entry in service and his appointment should be declared as invalid. He has relied upon one single Judge unreported judgment in Babu Lal v. Chairman, Nagar Palika Parishad. Etawah and another. Writ Petition No. 30505 of 1997, dated 30.9.1997. In which the controversy involved was regarding the date of birth. Learned single Judge has considered the facts and circumstances of the case, held that even if the petitioner was taken to have been appointed at the age of 18 years, he was liable to retire on attaining the age of superannuation on 30.9.1997. It is a case of sweeper who had completed 42 years of service. His contention was that his date of birth was 22.4.1945 and he would retire on attaining the age of superannuation on 21.4.2005.
7. Learned counsel for the respondent Shri S. M. A. Kazmi has submitted that the respondent No. 3 was appointed according to rules. He further submitted that after such a long time this question cannot be reopened. He further submitted that it is not a case where the writ jurisdiction under Article 226 of the Constitution of India should be exercised. It has also been pointed out by Shri Kazmi that it was a practice that some of the employees who were working in the Government Advocate office were deputed to do work in the High Court for preparation of criminal cases, etc. The pay was withdrawn from Government Advocate allocation. It was called Amalgamation Scheme and the Chief Justice approved it and the Clerical Staff of Government Advocate Office comes under the control of Registrar of this Court. The office note is quoted with advantage :
"The Government Advocates are entitled to receive Criminal Paper Books of cases and other documents from the office of the High Court.
Office note dated 5.1.1929 showing on experimental measure of having the Staff of Copyists of Government Advocate Office under the control of the Registrar has proved a success regarding preparation of Criminal Paper Books in Copying Department.
Office note dated 11.5.1929 showing that the Scheme of Amalgamation of Government Advocates' office staff with the High Court was not agreed to by the Government but the administrative amalgamation of the clerical staff of Government Advocate office with that of the High Court was given effect to and accordingly some of the Clerks of Government Advocate staff were brought under the supervision of the High Court and the output of their work considerably increased and delay in preparation of criminal cases has been reduced. The Government Advocate would, however, have no power left as regards to their recruitment etc. But for budget purposes this staff would be shown on the staff of the Government Advocate. This proposal was accepted by Hon'ble the Chief Justice on 14.5.1929. Since then the copying staff brought under the control of the Registrar are paid from the budget of Government Advocate.
The order dated 15th May, 1929 passed by the Registrar specifically provides that the administrative amalgamation of the clerical staff of Government Advocate Office with that of the High Court as sanctioned by the State Government for the purpose of recruitment etc. has been approved by Hon'ble the Chief Justice and such staff will now be controlled by the Registrar.
Thus, the Registrar exercises complete administrative control viz. Recruitment, Promotion. Punishment etc. and hence the service record is maintained by the Registry.
Accordingly the salary of the staff is charged from the budget of the Government Advocate Office. This situation still persists."
So, in other words, some of the clerks who were working in Government Advocate Office were deputed to the High Court and their list was also attached.
8. We are of the considered view that this writ petition is of speculative nature. It has been filed after decades. It would amount to digging of old grave yard. It is also well-settled principle of Service Jurisprudence that if irrelevant plea is accepted, it would be destablishing the continuity of service of different employees and raking up the old matters. If this sort of writ petition is allowed, plethora of litigations will be filed by the employees that a particular person has entered in service Illegally and his appointment be declared as invalid and in that case, he would get benefit. Some persons would file litigation that some officers have attained the age of superannuation and they be debarred from service.
9. We would like to quote Rule 7 of Allahabad High Court (Conditions of Service Staff) Rules. 1946 with an advantage :
"7. Other conditions of service.--(1) Subject to these rules, the rules and orders for the time being in force and applicable to servants of the Crown of corresponding classes in the service of the United Provinces Government shall regulate the conditions of service of persons serving the staff attached to the High Court :
Provided that the powers exercisable under the said rules and orders by the Governor shall be exercisable. subject to Rule 17, by the Chief Justice or by such person as he may, be general or special orders, direct.
(2) if any question arises as to which rules and orders are applicable to the case of any person serving on the staff attached to the High Court, it shall, subject to Rule 17, be decided by the Chief Justice."
10. The competent authority while appointing him initially must have taken into consideration in the normal course of human business the exigencies of service to employ him at 16 years of age or so otherwise by act and conduct the age is deemed to have been relaxed. There is no express bar in the Rules nor any notification has been placed on record. Even otherwise there is theory of factum valet that fact cannot be altered though it should not have been done. This is a famous principle of law and well recognised in its application.
11. Shri B. P. Singh, learned counsel for the petitioner has cited a case in G. Sundarsan v. Union of India and another. AIR 1996 SC 668. This was a case of appointment wrongfully obtained by obtaining a Scheduled Caste certificate. It was found that he was not a Scheduled Caste and penalty of forfeiture of pension was maintained after taking disciplinary action.
12. This is not a case of forged certificate. The respondent No. 3 has come with clean hands and he has been relying upon matriculation certificate. If the employer in certain circumstances considered the appointment of a person at the age of 16 years or so to take work from him. no bar has been pointed out and he has been working since long in the service of High Court. We do not rely upon the authority or learned single Judge in which the petitioner claimed his age at the time of appointment as 10 years which was repelled and he was not given benefit. In the facts and circumstances of the case, this case has no relevancy and we do not rely upon its ratio in the present circumstances of the case.
13. Now coming to the question of issuance of a writ of quo wananto, the writ has been filed for mala fide purpose to rake up the old stabilised things. It has not been shown that there is clear cut violation of Statute and Rules. If he is considered to have been appointed at the age of 18 years as discussed above and in that case he would have retired early and got a chance for selection. It is a question of "ifs" and "buts" and the Court refused to give relief in such type of litigation.
14. In the facts and circumstances mentioned above the writ petition is dismissed. No order as to costs.