# Brij Kishore v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-30
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brij-kishore-v-state-of-u-p-ors-44307
- **Pages:** 8

## Headnote

Writ petition - Article 226 Constitution - Date of birth - Service record - School leaving certificate -
Medical examination report - U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 -
Rule 2 - Complaint by brother - Retirement from service - Recovery of salary - Breach of natural justice
- Document not supplied - No departmental enquiry - Impugned order quashed - No recovery

The brief reference to the factual aspect would suffice. The petitioner was initially engaged on the post of
Waterman on 08.02.1980 on casual basis. He was regularized on the said post on 01.01.1988. A show cause
notice was issued to the petitioner on 23.11.2011 on the basis of a complaint made by his brother dated
01.06.2010 wherein it was alleged that the petitioner's date of birth in the school leaving certificate was
recorded as 02.01.1945. It was alleged that he was a student of Primary School, Nawabganj Sandi, Hardoi
and according to the records of the said institution, his date of birth was 02.01.1945. Copy of the show cause
notice is on record as Annexure-7 to the writ petition. (Para 2)

The petitioner has submitted his reply to the said show cause notice on 26.11.2011 denying all the allegations
made therein. It has been contended on his behalf that the petitioner at the time of his appointment, was
sent for medical examination and on the basis of the age mentioned in the medical examination report, his
date of birth was recorded in his service record as 02.01.1954. He has stated that his brother due to enmity,
has got manufactured some documents to cause harassment to the petitioner. (Para 3)

After considering the reply submitted by the petitioner, the fourth respondent has passed the impugned order
and the petitioner has been retired. In the impugned order the fourth respondent has recorded that correct
date of birth of the petitioner is 02.01.1945, thus, petitioner ought to have been retired on attaining the age
of superannuation on 03.01.2005. Accordingly, a direction was issued to treat the petitioner as retired on
31.12.2011 and for recovery of his salary from 01.02.2005 to 31.12.2011. In the impugned order it is also
recorded that on a complaint dated 01.06.2010, it came to the knowledge that the petitioner's correct date of
birth is 02.01.1945 and on the basis of the fabricated medical report, the petitioner has got recorded his date
of birth as 02.01.1954 in his service record. Some legal opinion has also been sought before passing the
impugned order. (Para 4)
8 All. Brij Kishore Vs State Of U.P. & Ors.
425
Held: (Paras 23-27)
1.It is noteworthy that, the petitioner in his reply to the show cause notice has categorically denied the fact
that he has received any education in the said institution and the documents relied by the respondents are
fabricated and manufactured documents, in my view, a regular departmental proceedings ought to have been
initiated against the petitioner giving him full opportunity to rebut the allegation made against him. No such
enquiry has been conducted against the petitioner even the document which has been relied in the impugned
order, has not been furnished to the petitioner. Thus, whatever enquiry has been conducted by the
respondents, is in the breach of the natural justice.

2.It is a trite that if a document is relied by the employer for taking action against the employee, the said
document must be supplied to the employee. The said requirement is based on the fair play and natural
justice. No such procedure has been adopted by the respondents. In my view, the action of the respondents
has to be tested on the touchstone of justice, equity and fair play. Accordingly, the impugned order stands
vitiated on the ground of the breach of the principle of natural justice.

3.The petitioner is a Class IV employee. From the counter affidavit, it is evident that no allegation against the
petitioner in respect of his work and conduct has been made.

## Text

424 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 424
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Service Single No.- 1619 Of 2012

Brij Kishore ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jitendra Singh

Counsel for the Respondents:
C.S.C, B.P. Singh, N.C Mehrotra, Seema Singh

Writ petition - Article 226 Constitution - Date of birth - Service record - School leaving certificate -
Medical examination report - U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 -
Rule 2 - Complaint by brother - Retirement from service - Recovery of salary - Breach of natural justice
- Document not supplied - No departmental enquiry - Impugned order quashed - No recovery

The brief reference to the factual aspect would suffice. The petitioner was initially engaged on the post of
Waterman on 08.02.1980 on casual basis. He was regularized on the said post on 01.01.1988. A show cause
notice was issued to the petitioner on 23.11.2011 on the basis of a complaint made by his brother dated
01.06.2010 wherein it was alleged that the petitioner's date of birth in the school leaving certificate was
recorded as 02.01.1945. It was alleged that he was a student of Primary School, Nawabganj Sandi, Hardoi
and according to the records of the said institution, his date of birth was 02.01.1945. Copy of the show cause
notice is on record as Annexure-7 to the writ petition. (Para 2)

The petitioner has submitted his reply to the said show cause notice on 26.11.2011 denying all the allegations
made therein. It has been contended on his behalf that the petitioner at the time of his appointment, was
sent for medical examination and on the basis of the age mentioned in the medical examination report, his
date of birth was recorded in his service record as 02.01.1954. He has stated that his brother due to enmity,
has got manufactured some documents to cause harassment to the petitioner. (Para 3)

After considering the reply submitted by the petitioner, the fourth respondent has passed the impugned order
and the petitioner has been retired. In the impugned order the fourth respondent has recorded that correct
date of birth of the petitioner is 02.01.1945, thus, petitioner ought to have been retired on attaining the age
of superannuation on 03.01.2005. Accordingly, a direction was issued to treat the petitioner as retired on
31.12.2011 and for recovery of his salary from 01.02.2005 to 31.12.2011. In the impugned order it is also
recorded that on a complaint dated 01.06.2010, it came to the knowledge that the petitioner's correct date of
birth is 02.01.1945 and on the basis of the fabricated medical report, the petitioner has got recorded his date
of birth as 02.01.1954 in his service record. Some legal opinion has also been sought before passing the
impugned order. (Para 4)
8 All. Brij Kishore Vs State Of U.P. & Ors.
425
Held: (Paras 23-27)
1.It is noteworthy that, the petitioner in his reply to the show cause notice has categorically denied the fact
that he has received any education in the said institution and the documents relied by the respondents are
fabricated and manufactured documents, in my view, a regular departmental proceedings ought to have been
initiated against the petitioner giving him full opportunity to rebut the allegation made against him. No such
enquiry has been conducted against the petitioner even the document which has been relied in the impugned
order, has not been furnished to the petitioner. Thus, whatever enquiry has been conducted by the
respondents, is in the breach of the natural justice.

2.It is a trite that if a document is relied by the employer for taking action against the employee, the said
document must be supplied to the employee. The said requirement is based on the fair play and natural
justice. No such procedure has been adopted by the respondents. In my view, the action of the respondents
has to be tested on the touchstone of justice, equity and fair play. Accordingly, the impugned order stands
vitiated on the ground of the breach of the principle of natural justice.

3.The petitioner is a Class IV employee. From the counter affidavit, it is evident that no allegation against the
petitioner in respect of his work and conduct has been made. Only on the basis of a complaint of his brother,
the enquiry has been initiated after such a long period. A person who has been working satisfactory for 30
years, cannot be disturbed at the verge of his retirement. As noted above, no enquiry against him has been
conducted in accordance with law. In his service record, his date of birth is 02.01.1954. During the pendency
of the writ petition, he stood retired.
4.After a careful consideration of the matter, for the reasons stated above, I find that the impugned order
dated 31.12.2011 is not sustainable. It needs to be quashed. Accordingly, it is quashed. No recovery shall be
made pursuant to the impugned order.

5.The writ petition is allowed.

Case Law discussed:
1.State of Uttranchal and others Vs. Pitamber Dutt Semwal, (2002) 1 UPLBEC 441 SC - para 15
2.State of U.P. and others Vs. Gulaichi (Smt), (2003) 6 SCC 483 - para 16
3.U.P. Madhyamik Shiksha Parishad and others Vs. Raj Kumar Agnihotri, (2005) 11 SCC 465 - para 17

(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)

1. The petitioner has preferred this writ petition under Article 226 of the Constitution for
quashing the order dated 31.12.2011 passed by fifth respondent retiring the petitioner from service
and for the recovery of the excess amount paid to him.

2. The brief reference to the factual aspect would suffice. The petitioner was initially
engaged on the post of Waterman on 08.02.1980 on casual basis. He was regularized on the said
post on 01.01.1988. A show cause notice was issued to the petitioner on 23.11.2011 on the basis of
a complaint made by his brother dated 01.06.2010 wherein it was alleged that the petitioner's date
of birth in the school leaving certificate was recorded as 02.01.1945. It was alleged that he was a
student of Primary School, Nawabganj Sandi, Hardoi and according to the records of the said
institution, his date of birth was 02.01.1945. Copy of the show cause notice is on record as
Annexure-7 to the writ petition.
426 INDIAN LAW REPORTS ALLAHABAD SERIES

3. The petitioner has submitted his reply to the said show cause notice on 26.11.2011
denying all the allegations made therein. It has been contended on his behalf that the petitioner at
the time of his appointment, was sent for medical examination and on the basis of the age
mentioned in the medical examination report, his date of birth was recorded in his service record as
02.01.1954. He has stated that his brother due to enmity, has got manufactured some documents to
cause harassment to the petitioner.

4. After considering the reply submitted by the petitioner, the fourth respondent has passed
the impugned order and the petitioner has been retired. In the impugned order the fourth respondent
has recorded that correct date of birth of the petitioner is 02.01.1945, thus, petitioner ought to have
been retired on attaining the age of superannuation on 03.01.2005. Accordingly, a direction was
issued to treat the petitioner as retired on 31.12.2011 and for recovery of his salary from
01.02.2005 to 31.12.2011. In the impugned order it is also recorded that on a complaint dated
01.06.2010, it came to the knowledge that the petitioner's correct date of birth is 02.01.1945 and on
the basis of the fabricated medical report, the petitioner has got recorded his date of birth as
02.01.1954 in his service record. Some legal opinion has also been sought before passing the
impugned order.

5. A counter affidavit has been filed. The stand taken in the counter affidavit is that a
complaint was received against the petitioner wherein it is mentioned that the petitioner got his
primary education from Primary School, Nawabganj Sandi, Hardoi and according to the school
register, his date of birth is 02.01.1945. A communication dated 18.10.2010 sent by the Head
Master of the institution has also been brought on record wherein it is mentioned that according to
the said record, the petitioner's date of birth is 02.01.1945.

6. An impleadment application has been filed on behalf of Virendra Kumar, his brother, in
the writ petition but no one is present on his behalf to press the impleadment application. An
objection to the impleadment application has been filed by the petitioner. In the said objection, it is
stated that a large number of criminal cases are pending between the brothers, hence due to the
malafide reasons, he had moved the complaint against the petitioner, which ought not to have been
entertained.

7. Heard learned counsel for the petitioner, Sri Jitendra Singh learned Standing Counsel
and Sri N.C. Mehrotra for respondent nos. 2 to 5.

8. It is contended on behalf of the petitioner that he was appointed in the year 1980 and was
regularized in the year 1988 and after such a long period, a complaint has been made against the
petitioner in 2011 and without holding any enquiry, the petitioner's services has been terminated. It
is further urged that the petitioner was appointed after the medical examination, on the basis of
medical report his age was recorded in service book. Next it was submitted that U.P. Recruitment
to Services (Determination of Date of Birth) Rules, 1974 (In short 'Rules 1974') provide that if a
person has not passed High School then the age recorded in the service record is final. He has
further submitted that neither the communication of the Head Master of the institution was supplied
8 All. Brij Kishore Vs State Of U.P. & Ors.
427
to him nor any other document was furnished to him. Thus, the entire proceedings is in the breach of
natural justice.

9. Lastly, it is urged that the petitioner has worked till 2011, thus the direction for recovery of
the salary from 2005 to 2011 is arbitrary as during the said period, the petitioner has actually worked,
hence no recovery can be made for the said period.

10. Sri N.C. Mehrotra, learned counsel for the respondent nos. 2 to 5 submits that the petitioner
has committed fraud and he has obtained his appointment on the basis of the fabricated medical report.

11. I have considered the rival submissions and perused the record.

12. The petitioner was initially appointed in the year 1980 on casual basis and in the year 1988
he was regularized and after about 30 years a complaint was made against him by his real brother that
his date of birth is wrongly recorded and his correct date of birth is 02.01.1945. In support of the said
allegation, it appears that he has produced some duplicate copy of the school leaving certificate which
indicate that his date of birth is recorded 02.01.1945 in schools record. On the basis of the
communication of the Head Master and the said document, a show cause notice was issued to the
petitioner stating that the Head Master of the institution has certified that his date of birth is 02.01.1945.
The petitioner in his reply to the said show cause notice has categorically denied the said fact. From the
show cause notice, it is clear that the document relied by the respondents i.e. the communication of the
Head Master and his duplicate school leaving certificate was not furnished to the petitioner.

13. The State Government has framed U.P. Recruitment to Services (Determination of Date of
Birth) Rules, 1974 to determine the date of birth of the Government servants. The rule-2 of Rules, 1974
provides the determination of correct date of birth. Rule-2 of Rules, 1974 reads as under:-

"2. Determination of correct date of birth or age- The date of birth of a Government
servant as recorded in the certificate of his having passed the high School or equivalent examination at
the time of his entry into the Government service or where a Government servant has not passed any
such examination as aforesaid or has passed such examination after joining the service, the date of birth
or the age recorded in his service book at the time of his entry into the Government service shall be
deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his
service, including eligibility for promotion, superannuation, premature retirement or retirement benefits,
and no application or representation shall be entertained for correction of such date or age in any
circumstances whatsoever."

14. From the reading of the rule-2 it is evident that if a person is High School at the time of his
entry into Government service, the date of birth recorded in the High School certificate shall be deemed
to be his correct date of birth and in case the Government servant is not High School then the date of
birth or the age recorded in service book at the time of his entry, shall be deemed to be his correct date
of birth or age.
428 INDIAN LAW REPORTS ALLAHABAD SERIES

15. The rule 2 of Rules 1974 came to be considered by the Supreme Court in the case of State
of Uttranchal and others v. Pitamber Dutt Semwal, (2002) 1 UPLBEC 441 SC. The Court has held
as under:

"6. These rules, the validity of which have not been challenged, clearly stipulate that no
application or representation shall be entertained for correcting any date or age record and the entry
made in the service book shall be deemed to be the correct date of birth. Be that as it may, even dehors
the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly
recorded was highly belated. He joined service in 1964, the service book was prepared in 1965 and
according to the appellant, he has signed the said service book at least on three occasions. In any case,
the plea of the wrong recording of the age in the service book has been taken, nearly thirty years after
the service book was prepared. In our opinion, the Division Bench was in error in ignoring the
provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the
High Court to have interfered with the decision of the appellant."

16. The said rule was again considered in the case of State of U.P. and others v. Gulaichi
(Smt), (2003) 6 SCC 483 wherein the Court has held as under:

"12. - - - Additionally, the first appellate court and the High Court seem to have lost
sight of the fact that the person who endorsed changes was not authorized to do so. The original servicebook was produced before us by the learned counsel for the appellants. Though the learned counsel for
the respondent submitted that we should not look into it, for the purpose of arriving at the truth, we
overruled the objection and looked at the original document, which undisplutedly was exhibited during
trial. The entry i.e. 31-07-1929 appears to have been made simultaneously by one and the same person
at the time when other entries were made in FR Form 13. The respondent has herself signed the page at
Serial No.8, whereas the entry relating to the date of birth is at Serial No.5."

17. In U.P. Madhyamik Shiksha Parishad and others v. Raj Kumar Agnihotri, (2005) 11
SCC 465, the Supreme Court had occasioned to consider the rule 2 of the Rules 1974 and has held that
the age recorded in the service at the time of entry shall be deemed to be correct date of birth for all
purposes and no application or representation shall be entertained for correction of such date. The Court
held as under:

"18. In the instant case, the U.P. Recruitment to Service (Determination of date of
birth) Rules came into force w.e.f. 28.05.1974. Rule 2 of the Rules was amended by the first
amendment Rules, 1980 of 07,06.1980. The existing rule and the substituted rule are extracted
hereinbelow:

COLUMN 1
COLUMN 2
(Existing rule)

2. The date of birth of Government
servant as recorded in the certificate of
(Rule as hereby substituted)

2. The date of birth of a Government
servant as recorded in the certificate of
8 All. Brij Kishore Vs State Of U.P. & Ors.
429
his having passed the High School or
equivalent examination, or where a
Government servant has not passed
any such examination as aforesaid, the
date of birth or the age recorded in his
service book at the time of his entry
into Government service, shall be
deemed to be his correct date of birth
or age, as the case may be, for all
purposes in relation to his service
including, eligibility for promotion,
superannuation, premature retirement
or
retirement
benefits,
and
no
application or representation shall be
entertained for correction of such date
or
age
in
any
circumstances
whatsoever.

his having passed the High School or
equivalent examination at the time of
his entry into the Government service
or where a Government servant has not
passed any such examination as
aforesaid
or
has
passed
such
examination after joining the service,
the date of birth or the age recorded in
his service book at the time of his entry
into the Government service shall be
deemed to be his correct date of birth or
age, as the case may be, for all purposes
in relation to his service, including
eligibility
for
promotion,
superannuation, premature retirement or
retirement benefits and no application
or representation shall be entertained
for correction of such date or age in any
circumstances whatsoever.

As per the existing rule, the date of birth or the age recorded in his service book at the
time of entry into the Government service shall be deemed to be the correct date of birth or age, as the
case may be, for all purposes and no application or representation shall be entertained for correction of
such date or age in any circumstances whatsoever.

18. What emerges from the above mentioned cases is that Rule 2 of Rules 1974 does not
provide any change and no representation can be entertained for the change of date of birth for
whatsoever reason by the employee.

19. It is a common ground that the petitioner is not High School and his date of birth recorded
in the service record is 02.01.1954. He did not produce any school leaving certificate at the time of his
appointment that was the reason for recording his date of birth on the basis of Medical report. It is
noteworthy that the petitioner has averred in the writ petition that at time of his appointment, he was
sent for a medical examination and the said report dated 03.03.1987 is issued under the seal and
signature of Chief Medical Officer, Hardoi, it is on the record as Annexure-3 to the writ petition. It is
recorded therein that at time of the medical examination, his age was about 34 years. The said
certificate was issued in the year 1987. The averment made in the writ petition and about this document
has been replied in the counter affidavit in paragraph no. 17. The paragraph no. 17 of the counter
affidavit reads as under:-
430 INDIAN LAW REPORTS ALLAHABAD SERIES

"17. That the contents of paragraph no. 5 of the writ petition are false and are denied.
The alleged certificate has no relevance. The document itself shows that the date of birth of the
petitioner is 02.01.1945 and not 02.01.1954."

20. A careful perusal of the medical report dated 03.03.1987 indicates that the averment made
in the counter affidavit that in the said certificate it is mentioned that the petitioner's date of birth is
02.01.1945, is palpably false. There is no such recital is in the said certificate. Moreover in the counter
affidavit the genuineness of the medical certificate has not been doubted.

21. In addition to above, the respondents have entertained the complaint after 30 years of
service. In the objection to the impleadment application, the petitioner has given the details of the
criminal cases between the brothers. This facts also indicate that for the malafide intention, the brother
of the petitioner had made the complaint.

22. It is noteworthy that, the petitioner in his reply to the show cause notice has categorically
denied the fact that he has received any education in the said institution and the documents relied by the
respondents are fabricated and manufactured documents, in my view, a regular departmental
proceedings ought to have been initiated against the petitioner giving him full opportunity to rebut the
allegation made against him. No such enquiry has been conducted against the petitioner even the
document which has been relied in the impugned order, has not been furnished to the petitioner. Thus,
whatever enquiry has been conducted by the respondents, is in the breach of the natural justice.

23. It is a trite that if a document is relied by the employer for taking action against the
employee, the said document must be supplied to the employee. The said requirement is based on the
fair play and natural justice. No such procedure has been adopted by the respondents. In my view, the
action of the respondents has to be tested on the touchstone of justice, equity and fair play. Accordingly,
the impugned order stands vitiated on the ground of the breach of the principle of natural justice.

24. The petitioner is a Class IV employee. From the counter affidavit, it is evident that no
allegation against the petitioner in respect of his work and conduct has been made. Only on the basis of
a complaint of his brother, the enquiry has been initiated after such a long period. A person who has
been working satisfactory for 30 years, cannot be disturbed at the verge of his retirement. As noted
above, no enquiry against him has been conducted in accordance with law. In his service record, his
date of birth is 02.01.1954. During the pendency of the writ petition, he stood retired.

25. After a careful consideration of the matter, for the reasons stated above, I find that the
impugned order dated 31.12.2011 is not sustainable. It needs to be quashed. Accordingly, it is quashed.
No recovery shall be made pursuant to the impugned order.

26. The writ petition is allowed.
------------
8 All. The Khemraj Smarak Rashtriya Vidyapeeth Sangh Faizabad & Anr. Vs State Of U.P.
 Throu. Princ. Secy. Finance Lko. & Ors. 46 (Revp) 12 (Ms
431
(2016) 8 ILRA 431
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.08.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE DR. VIJAY LAXMI, J.

Special Appeal No.- 265 Of 2014
&
Connected With Other Cases

The Khemraj Smarak Rashtriya Vidyapeeth Sangh Faizabad & Anr. ...Appellants
Versus
State Of U.P.Throu.Prin.Secy.Finance Lko.& Ors.46(Revp)12(Ms ...Respondents

Counsel for the Appellants:
Shailendra Kumar Singh, Sabhapati Shukla

Counsel for the Respondents:
C.S.C., Pt.S.Chandra, Sushil Kumar Singh

Special Appeal-Societies Registration Act, 1860 - Section 25(2) - Deputy Registrar - Committee of
Management - Society - amendment in byelaws - Memorandum of Association - membership of the
society - elections - Committee of Management declared defunct - direction for holding fresh elections -
writ petition - modification application - review application - principles of natural justice - framing of
issues - jurisdiction of Deputy Registrar - validity of elections - order dated 15.04.2011 - learned Single
Judge - Special Appeals - order set aside - order of Deputy Registrar quashed - fresh decision after
opportunity of hearing

These three appeals relate to the elections of the Committee of Management and affairs of a society
registered under the Societies Registration Act, 1860 namely, the Khemraj Smarak Rashtriya Vidyapeeth
Sangh, Khemapur Faizabad, district Ambedkar Nagar, the focus whereof is the challenge raised to the order of
the Deputy Registrar, Firms, Societies and Chits, Faizabad dated
15.04.2011 whereby the contention raised on behalf of the appellants had been accepted and the Deputy
Registrar had after declaring the tenure of the Committee of Management of the society to have come to an
end, further issued directions for holding of fresh elections in exercise of powers under Section 25 (2) of the
1860 Act.(Para 1)

It may be put on record that all elections after 29.11.1967 were declared invalid on the ground that the
membership of the society was highly disputed as it was based on amendment in the byelaws and
Memorandum of Association that was illegal, and any consequential action or elections being claimed were all
invalid.(Para 2)

The aforesaid order had been passed against the respondent petitioners No.9 and 10 holding that all the
activities that were carried out under the amended byelaws of 24.11.1980 and the amendment in the
Memorandum of Association dated 12.06.2001, were invalid as the amendment itself was impermissible and,
therefore, the elections should now be held on the strength of the membership that existed as on 29.11.1967.