Court No. - 2
Case :- WRIT - A No. - 57391 of 2007
Petitioner :- Surendra Singh Respondent :- State Of U.P. And Others Counsel for Petitioner :- B.P. Yadav
Counsel for Respondent :- C.S.C.,C.K.Parekh,Pradeep Chauhan,R.B. Singh,Somveer
Hon'ble Suneet Kumar,J.
Heard and perused the record.
The instant writ petition is directed against the notice dated 2 June 2007 requiring the petitioner to retire from service treating his date of birth as 13 November 1947, and the order dated 3 September 2007 passed by the third respondent - Nagar Swasthya Adhikari, Nagar Nigam, Agra, rejecting the representation of the petitioner seeking correction his date of birth as 26 May 1953.
The petitioner was appointed Beldar/Sweeper on 1 June 1972. As per the case setup by the petitioner, the date of birth recorded in the service book, at the time of appointment was 26 May 1953. It is not in dispute that the petitioner at the time of appointment/joining was not High School. It appears that the service book of the petitioner came to be lost, thereafter, a new service book came to be reconstituted, but while doing so, it is alleged that the date of birth was entered as 13 November 1947 in the service book. A certificate issued by the Chief Medical Officer dated 13 November 2001 was the basis for altering the date of birth of the petitioner. Consequently, petitioner came to be retired on 30 November 2007 instead of May, 2013.
The case of the petitioner is that the petitioner was wrongly retired, whereas the petitioner was entitled to continue in service till 31 May 2013 treating his date of birth as 26 May 1953 which was duly recorded in the service book at the time of joining service. Learned counsel for the petitioner has made the following submissions:
(i) that the petitioner at the time of appointment was not High School, therefore, in view of Rule 2 of U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 (in short "Rules, 1974") the entry recorded in the Service Book, shall be deemed to be his correct date of birth for all purposes in relation to his service;
(ii) all the relevant documents of the respondent, Nagar Nigam, Agra unequivocally records the date of birth of the petitioner as 26 May 1953;
(iii) it is not open to the respondent to have recorded another date of birth as late as 2001, after obtaining an opinion from the Chief Medical Officer.
In the counter affidavit filed on behalf of respondent Nos.2 and 3, the facts are not being disputed. It is urged that the date of birth of the petitioner at the time of joining of service was recorded as 13 November 1947; in 1990, the petitioner appeared in Junior High School, the marks-sheet records the date of birth of the petitioner as 8 October 1953, consequently, to remove the doubt regarding his date of birth petitioner was subjected to medical examination before the Chief Medical Officer, Agra on 13 November 2001 who certified the approximate age of the petitioner at 54 years, consequently, the date of birth of the petitioner was recorded as 13 November 1947.
The facts inter se parties are not in dispute. It is admitted that the petitioner joined on 1 June 1972 and it is the specific case of the petitioner that the date of birth was recorded as 26 May 1953. In paragraph 6 and 7, it has been categorically stated that the initial service book of the petitioner on having been lost, the new service book was reconstructed in 2001 and thereafter the date of birth was wrongly entered. Paragraph nos.7 & 8 of the writ petition reads thus:
"7. That at the time of joining in service of the petitioner the date of birth of the petitioner was determined as 26.05.1953 in service records and the same date of birth was also recorded in the papers of group insurance scheme of the petitioner which is being deducted from very beginning. The date of birth of the petitioner is also mentioned as 26.05.1953 in Form of Leave Account. A Photostat copy of the Form of Leave Account is being filed herewith as Annexure No.3 to this writ petition.
8. That it is stated that the service book of the petitioner had been lost in department therefore a new service book was prepared by the department in the year 2001 on the basis of medical examinations in which the age of the petitioner has wrongly been mentioned 54 years. A Photostat copy of the medical examination report dated 13.11.2001 is being file herewith as Annexure No.-4 to this writ petition."
In reply of paragraph nos.7 & 8, it is stated in the counter affidavit that the date of birth recorded as 13 November 1947 was duly certified by the Chief Medical Officer, Agra and upon petitioner passing the Junior High School, confusion arose about his date of birth which was got examined by the Chief Medical Officer, Agra on 13 November 2001. Paragraph 6 & 7 of the counter affidavit reads thus:
"6. That the contents of paragraph no.7 of the writ petition are not admitted and hence denied and in reply thereto it is submitted that the date of birth of the petitioner is 13.11.1947 which is certified by the Chief Medical Officer, Agra.
7. That in reply to the contents of paragraph no. 8 of the writ petition, it is submitted that at time of services of the petitioner on 01.06.1972 the date of the birth of the petitioner was recorded as 13.11.1947 in service record and when the petitioner passed high school in the year 1990 and in the mark-sheet the date of the birth of the petitioner was mentioned as 08.10.1953 then petitioner was got examined by the Chief Medical Officer Agra in the year 2001 who certified that the petitioner is aged about 54 years on 13.11.2001."
On specific query, it is urged that the paragraph nos.6 & 7 is sworn on personal knowledge. No documentary material has been placed on record by the respondents to controvert the assertion of the petitioner. The petitioner has brought on record the documents of the respondent Nagar Nigam, i.e. the Form of Leave Account prepared under the Fundamental Rules, which clearly records the date of birth of the petitioner as 26 May 1953 (Annexure 3 to the writ petition). The document is of 1987. The document has not been denied nor controverted by the opposite party in the counter affidavit. It is also relevant to note that while appearing for Junior High School in 1990, the year of birth mentioned by the petitioner is 1953 and not 1947. Further, the Accounts Officer, Nagar Nigam, Agra while seeking information of the employees for Group Insurance has categorically recorded the date of birth of the petitioner as 26 May 1953. The respondents have not denied the documents. These documents clearly substantiates the case of the petitioner that the date of birth recorded in service record at the time of appointment was recorded as 26 May 1953.
The Division Bench of this Court in the case of Pitamber Dutt Semwal Vs. State of U.P. and others relying upon Rule 2 of Rules 1974, which is applicable on the employees of Nagar Nigam held that recording a date of birth or making an entry into the service book much after an incumbent entered service itself raises a presumption of doubt.
In the facts of the present case, the records of the Nagar Nigam clearly show that the date of birth of the petitioner recorded in the corresponding documents of the Nagar Nigam is 26 May 1953, which is specific case of the petitioner. In 2001, i.e. after 29 years, the service book upon being the reconstructed, on having being lost, the date of birth was altered to 13 November 1947 on the strength of a certificate issued by the Chief Medical Officer. In view of the mandatory provision of Rules, 1974, such a course was not open to the respondent. It is not a case of fraud or misrepresentation. Paragraph no.6 of the Division Bench judgment reads thus:
"Recording a date of birth or making an entry into the service book much after an incumbent entered service itself raises a presumption of doubt. In so far as present case is concerned, this Court need not notice any other aspect on facts as the Officer Incharge, District Office, Uttar Kasi has come to the conclusion that the date of birth of petitioner appellant, Pitamber Dutt Semwal has been incorrectly recorded in the service book much after the incumbent entered service. In the circumstances, the Court finds that the learned Judge, when he took too strict a view in not permitting a writ of certiorari to operate for correction of the service record, was in error."
Similar view has been taken by a subsequent Division Bench judgment in Prayag Narain Dubey Vs. U.P. State Road Transport Corporation, Etawah and another, wherein, it has been observed that the service book for all purposes is in the possession and custody of the respondents after the appointment of the employee.It is, therefore, not possible for the employer to alter or manipulate the records.
In the facts of the instant case, there was no occasion for the respondent to have altered the date of birth after obtaining a medical certificate from the Chief Medical Officer. In the event, the service book was lost, the same could have been reconstructed after cross checking the date of birth from the corresponding records of the Nagar Nigam, placed on record by the petitioner which has not been disputed by the respondent. The date of birth recorded by the Nagar Nigam in Leave Account and as noted by the Accounts Officer for the purposes of Group Insurance are documents prior to 2001 when the date of birth of the petitioner came to be altered. The basis for recording the date of birth as 26 May 1953 was surely on the strength of the entry made in the service record as it stood recorded at the time of entry in service. In view of Rule 2 and 3 of the Rules, 1974, the date of birth could not have been altered later in service. It is admitted that petitioner was not High School at the time of appointment. Thus the date of birth recorded at the time of entry in government service shall be deemed to be his correct date of birth and correction thereof is impermissible.
Learned counsel for the respondent finally submits that the petitioner is not entitled to arrears of salary as he has not performed duties after June, 2007. The submission lacks merit is accordingly, rejected.
The Supreme Court in the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited and others, held that principle of "no work no pay" cannot be applied where the fault lies with the employer in not utilising the services for the period. In the instant case the petitioner came to be terminated illegally, therefore, it cannot be held that the petitioner was at fault and therefore, the principle of "no work no pay" would not apply in the present case. It is settled law that when an employee is not allowed to work due to fault of employer/authorities, such person is entitled for salary for the period he has not been allowed to work. The employer cannot deny salary to an employee, who is always willing and ready to work but was not allowed to do so by an act or omission directly attributable to the employer. (Refer : Division Bench decision rendered in the case of U.P. State Road Transport Corporation and another Vs. Prayag Narain Dubey10).
In view thereof, the writ petition succeeds and is accordingly allowed with all consequential benefits. The impugned order dated 2 June 2007, is set aside and quashed. The petitioner is entitled to all consequential benefits including arrears of salary treating the date of birth as 26 May 1953. Learned counsel for the petitioner submits that though the petitioner was retired in November 2007, however, post retiral dues was not paid to the petitioner. In view thereof, since the petitioner is a Class IV employee and has been wronged for no default of his own, petitioner is entitled to simple interest at the rate of 6% per anum on the outstanding dues admissible to the petitioner w.e.f. 1 December 2007 till the payment is made.
Order Date :- 26.2.2019 Atul