Court No. - 29
Case :- SPECIAL APPEAL No. - 400 of 2019
Appellant :- Managing Director U.P. State Bridge Corporation Ltd And 4 Others
Respondent :- Ganga Prasad @ Ganga Ram Yadav
Counsel for Appellant :- Pranjal Mehrotra
Counsel for Respondent :- Awadhesh Kumar Yadav
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Vivek Agarwal,J.
Heard Sri Pranjal Mehrotra, learned counsel for appellants and Sri Awadhesh Kumar Yadav, learned counsel for respondent.
This Special Appeal has been filed by the Appellants being aggrieved of the order dated 30.01.2019 passed in Writ A No. 23919 of 2003 whereby request for correction of date of birth of the petitioner from 03.05.1945 to 01.01.1965 has been allowed to be corrected.
Learned counsel for appellants submits that learned Single Judge has allowed the writ petition on the basis of a finding recorded that certificate of C.M.O., Deoria dated 03.05.1990, is not pertaining to the petitioner and on taking evidence at its own level, as recorded in Para-24 of the impugned order, to the effect that person, identified by his counsel, was judged through appearance and the court reached to a conclusion that he is not a man, who would be above 70 years of age as on date.
It is submitted that learned Single Judge, has relied on a High School Certificate, in which, date of birth of the candidate is mentioned as 1st January, 1965, issued in favour of one Ganga Prasad Yadav. Learned Single Judge took Ganga Prasad Yadav to be the person with same identity as Ganga Ram Yadav i.e. the petitioner and relying on the High School Marksheet, besides other factors mentioned above, allowed the writ petition, which is contrary to the provisions of law.
It is submitted that Marksheet of High School is in relation to Ganga Prasad whereas petitioner's name is Ganga Ram. In the service book, his name is mentioned as Ganga Ram, so also in the certificate issued by the C.M.O. In support of this contention, learned counsel for the Appellant has placed reliance on Annexure-4, in which, name of the petitioner is mentioned at serial no. 13 as Ganga Ram Yadav and submits that it is evident that even in the year 1987, applicant was known by the name of, ' Ganga Ram'.
Issue of allotment of C.P.F. Number, when cropped up, then also name of the petitioner was mentioned as Ganga Ram, but he started representing himself to be Ganga Ram @ Ganga Prasad, so to take unauthorized advantage of the High School Certificate, which actually does not belong to the present petitioner.
It is submitted that there is no documentary evidence to demonstrate that Ganga Ram Yadav and Ganga Prasad Yadav, are one and the same and once name of the petitioner was entered in service book as Ganga Ram Yadav, then without any authentic documentation, it could not have been changed to @ Ganga Prasad Yadav. Drawing attention to the order of retirement dated 14.02.2003, it is pointed out that even in the order of retirement, Annexure-25, name is mentioned as Ganga Ram Yadav and not as Ganga Prasad Yadav.
Learned counsel for the petitioner, in his turn, supports impugned order and submits that Ganga Ram Yadav and Ganga Prasad Yadav, are one and the same. It is further submitted that there was no occasion for the C.M.O. to determine his age and in fact, there is interpolation in the name of the father in the certificate, issued by the C.M.O. and it is in regard to one Ganga Ram S/o Ramesh where Ramesh has been struck off and has been replaced with Ram Narain.
After hearing learned counsel for the parties and going through the available record, certain things could not be disputed by learned counsel for the petitioners. Firstly, in the service book, though, there is whitener used after the words 'ममखय चचचकतसस अधधकसरर', but there is no overwriting or removal of the entry in regard to date of birth, which is categorically mentioned as 03.05.1945. This when seen with the personal mark for identification, then personal mark of identification is mentioned as 'mole on right side of cheeks' and same is corroborated from the report of the C.M.O., Deoria, whereas in the service book of another Ganga Ram, personal mark for identification is mentioned as 'mole below left nostril' and 'a lacerated wound mark', measuring 1½ inch over the ankle of right leg. Therefore, when read in the context of the identification marks, then submission made by learned counsel for petitioner that there is overwriting in regard to father's name of the petitioner in the Medical Certificate dated 03.05.1990, Annexure-8A gets negated.
This certificate also carries signatures of the petitioner and though petitioner had admittedly undergone medical examination on 03.05.1990 for determination of his age, but he did not raise this issue immediately.
We have also observed that petitioner has signed on the affidavit as Ganga Prasad @ Ganga Ram Yadav sworn on 20th day of May, 2003, whereas in an affidavit sworn on 27th day of July, 2009, he has signed only as Ganga Ram Yadav.
In case of State of Gujarat and Other vs. Vali Mohmed Dosabhai Sindhi; AIR 2006 SC 2735, it is held that court or the tribunal must be slow in granting interim relief or continuation in service unless, prima facie, evidence of unimpeachable character is produced.
In case of State of Assam and Another vs. Daksha Prasad Deka and Others; AIR 1971 SC 173, it is held that where the application for rectification of service record, as filed by the Government servant concerned, was itself not entertainable by reason of having been filed, just prior to his actual date of superannuation, will not require an opportunity of hearing to prove his true age as claimed by him and it cannot be said that lack of opportunity amounted to infringement of constitutional guarantee.
Similarly, in case of State of T.N. vs. T.V. Venugopalan; (1994) 6 SCC 302, it is held that scope of judicial review and re- appreciation of evidence is very narrow, where the application for correction of date of birth is rejected by the employer after considering various facts and circumstances.
Similarly, in case of G.M. Bharat Coking Coal Ltd., West Bengal vs. Shib Kumar Dushad and Others; (2000) 8 SCC 696, it is held that where question regarding correctness of date of birth, as entered in service record, is raised by employee, long after joining his service, and the employer decided the question following the procedure, prescribed statute, statutory rules or instructions, held in absence of any arithmetical or typographical error, apparent on the face of the record, High Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226.
In case of Mohd. Yunus Khan vs. U.P. Power Corporation Ltd. and Others; (2009) 1 SCC 80, it is held that compliance with the principles of natural justice, may be necessary in special situation i.e., when documents of two employees with same name getting mixed up with the result that younger employee is shown as older and older shown as younger, opportunity to show cause was necessary in the case of the older employee, but not in case of the younger.
It is also an admitted fact that at the time of joining, petitioner had not furnished his High School Marksheet. Moreover, the High School Marksheet, on which, lot of emphasis, has been placed by the counsel for the petitioner, is pertaining to one Ganga Prasad Yadav S/o Ram Narain and not in regard to Ganga Ram Yadav, by which name petitioner is known and had procured employment. Therefore, the learned Single Judge clearly erred in taking into consideration, High School Marksheet of Ganga Prasad Yadav to be that of Ganga Ram Yadav.
It also erred in rejecting the Medical Certificate, merely on the basis of a minor overwriting, overlooking a vital fact that though under the subject, there is a minor correction, but in the body of the certificate, there is no overwriting and name of the petitioner is shown as Ganga Ram S/o Ram Narain and his age has been determined. This certificate has been signed by the C.M.O., Deoria on 03.05.1990, describing the correct identification mark, as has been mentioned in the service book and which could not be disputed by the petitioner through any cogent evidence. Thus, once a certificate has been issued by the C.M.O., then in the light of the law laid down in case of G.M. Bharat Coking Coal Ltd., West Bengal (supra), the decision of the doctor cannot be interfered with by a court in the absence of any cogent material.
Thus, from the discussion above, points which emerged are that High School Marksheet of Ganga Prasad Yadav cannot be treated to be that of Ganga Ram Yadav. Secondly, once Medical doctor has determined the age of the petitioner, then that cannot be interfered in absence of any cogent evidence. Thirdly, all through from the date of appointment till his appointment in Group-B, name of the petitioner is mentioned as Ganga Ram Yadav and there is no material on record to permit him to camouflage himself to be Ganga Prasad Yadav and lastly, petitioner's attempt to show that in fact, there is another person in the name of Ganga Ram S/o Naresh, whose date of birth has been mentioned in place of the present petitioner, is also not made out in terms of difference in personal marks for identification clearly mentioned in service book of Ganga Ram, who is 'Paasi' (Scheduled Caste) and S/o Late Mahesh and that of the present petitioner, who is Ganga Ram S/o Ram Narain.
Thus, there being no material on record to substantiate permitting change of date of birth and in terms of the law laid down in Mohd. Yunus Khan (supra), petitioner having received ample opportunity to prove his case, thus, in the light of the law laid down in case of G.M. Bharat Coking Coal Ltd., West Bengal (supra), State of T.N. vs. T.V. Venugopalan (supra) as well as State of Gujarat and Other vs. Vali Mohmed Dosabhai Sindhi (supra), we are of the opinion that petitioner has failed to produce unimpeachable evidence to substantiate his claim for correction of date of birth, therefore, the learned Single Judge should not have interfered in the findings of the employer.
Accordingly, the Special Appeal is allowed and impugned order, passed by learned Single Judge, is set aside.
Order Date :- 23.9.2021 Vikram/-
(Vivek Agarwal, J.) (Munishwar Nath Bhandari, ACJ)