# Prem Prakash Singh v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-01-02
- **Case number:** Service Single No. 31762 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-prakash-singh-v-state-of-u-p-ors-44359
- **Pages:** 4

## Headnote

A. Service Law - Alteration of Date of
Birth - At the fag end of the career, a
party cannot be allowed to raise dispute
regarding his date of birth. (Para 4 to 8)

There is nothing on record to indicate that prior
to the filing of the present writ petition, the
petitioner has ever approached the authorities
for altering the date of birth recorded in his
service record. (Para 3)
130 INDIAN LAW REPORTS ALLAHABAD SERIES
The very conduct of non-raising of an objection
as to his date of birth, by the employee, who
was in service for over decades, should be
sufficient reason for the High Court, not to
entertain the applications on grounds of
acquiescence, undue delay and laches. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

9 All. Prem Prakash Singh Vs. State of U.P. & Ors.
129
Lordships proceeded to observe as under in
para 36 to 39:-

"36. For the reasons that we have
adduced above, we hold that neither the
Ramakrishna Mission, nor the hospital
would constitute an authority within the
meaning of Article 226 of the Constitution.

37. Before concluding, it would
be necessary to also advert to the fact that
while the learned Single Judge had come to
the conclusion that the appellants are ''State'
within the meaning of Article 12, the
Division Bench has not accepted that
finding. The Division Bench ruled, as we
have noticed earlier, that the appellants do
not fall within the description of ''State'
under Article 12. This finding has not been
challenged before this Court by the State of
Arunachal Pradesh.

38. Even otherwise, we are
clearly of the view that the tests which have
been propounded in the line of authority of
this Court in Ajay Hasia v Khalid Mujib
Sehravardi9, Pradeep Kumar Biswas v
Indian Institute of Chemical Biology 10
and Jatya Pal Singh v Union of India11
support the conclusion of the High Court
that the appellants are not ''State' within the
meaning of Article 12 of the Constitution of
India.

39. For the above reasons, we allow
the appeal and set aside the judgment and order
of the High Court dated 6 April 2018 in Writ
Appeal No 25 (AP/2017). In consequence, the
writ petition filed before the High Court namely
W.P. (Civil) No 520 (AP/2015) shall stand
dismissed. There shall be no order as to costs.
40 Pending application(s), if any, shall stand
disposed of."

20. From the discussions, aforesaid, it
is apparent that petitioners in respect of
their employment offered by the privately
managed unaided educational institution are
subject to contract of personal service as per the
common law rights and are not covered by any
of the three exceptions noticed by the Apex
Court in Executive Committee of Vaish Degree
College (supra) which may justify a writ or
direction by this Court to allow the petitioners to
continue in the employment, in exercise of its
writ jurisdiction. No writ, order or direction,
therefore, is liable to be issued in favour of
petitioners for enforcement of contract of
personal service against the privately managed
unaided educational institution. Writ petition
lacks merit and is, accordingly, dismissed. No
order is passed as to costs.
----------
(2020)09ILR A129
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.01.2018

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Service Single No. 31762 of 2017

Prem Prakash Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vishva Nath Pratap Singh

Counsel for the Respondents:
C.S.C., Ajay Kumar

A. Service Law - Alteration of Date of
Birth - At the fag end of the career, a
party cannot be allowed to raise dispute
regarding his date of birth. (Para 4 to 8)

There is nothing on record to indicate that prior
to the filing of the present writ petition, the
petitioner has ever approached the authorities
for altering the date of birth recorded in his
service record. (Para 3)
130 INDIAN LAW REPORTS ALLAHABAD SERIES
The very conduct of non-raising of an objection
as to his date of birth, by the employee, who
was in service for over decades, should be
sufficient reason for the High Court, not to
entertain the applications on grounds of
acquiescence, undue delay and laches. (Para 8)

Writ petition dismissed. (E-4)

Precedent followed:

1. U.O.I. Vs Harnam Singh, (1993) 2 SCC 162
(Para 5)

2. Home Department Vs R. Kirubakaran, (1994)
Supp (10) SCC 155 (Para 6)

3. St. of T.N. Vs T.V. Venugopalan, (1994) 6
SCC 302 (Para 7)

4. Burn Standard Company Ltd. Vs Dinabandhu
Majumdar & anr., (1995) 4 SCC 172 (Para 8)

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. Heard Shri Vishva Nath Pratap
Singh, learned counsel for the petitioner,
learned Standing Counsel for respondent
nos.1 and 3 and Shri Ajay Kumar, learned
counsel for respondent no.4.

2. The petitioner was initially appointed
as Collection Assistant on daily wage basis in
the Uttar Pradesh Schedule Caste Finance
and Development Nigam Limited (for short
"the Nigam") on 27.05.1988. Subsequently,
by an order dated 05.06.1989 of the
Managing Director of the Nigam, the
petitioner was appointed to the said post on
ad hoc basis. The petitioner was required to
furnish
certain
documents
including
certificates in support of his educational
qualification. The petitioner filed his High
School Certificate according to which his
date of birth was 15.01.1958. Consequently,
the same date of birth was recorded in his
service record. Subsequently, the petitioner
was regularised on the said post.

3. According to the date of birth
recorded
in
his
service
record,
the
petitioner
shall
attain
the
age
of
superannuation
on
14.01.2018.
On
17.12.2017, just 28 days before his
superannuation, the petitioner has preferred
this writ petition seeking a direction to the
respondents not to retire the petitioner on
the basis of date of birth recorded in his
service record. There is nothing on record
to indicate that prior to the filing of the
present writ petition, the petitioner has ever
approached the authorities for altering the
date of birth recorded in his service record.

4. By a catena of decisions of the
Apex Court, it is now settled that at the fag
end of the career, a party cannot be allowed
to raise a dispute regarding his date of
birth.

5. In Union of India v. Harnam Singh,
(1993) 2 SCC 162, the Apex Court has laid
down as under:

"15. In the instant case, the date
of birth recorded at the time of entry into
service as 20th May, 1934 had continued to
exist, unchallenged between 1956 and
September, 1991, for almost three and a
half decades. The respondent had the
occasion to see his service book at different
places at different points of time. Never did
he object to the recorded entry. The same
date of birth was also reflected in the
seniority lists of L.D.C. and U.D.C., which
the respondent had admittedly seen. He
remained silent and did not seek alteration
till September, 1991 just a few months
prior to the date of his superannuation.
Inordinate and unexplained delay or laches
on the part of the respondent to seek the
necessary correction would in any case
have justified the refusal of relief to him.
Even
if
the
respondent had
sought
9 All. Prem Prakash Singh Vs. State of U.P. & Ors.
131
correction of the date of birth within five
years after 1979, the earlier delay would
not have non-suited him but he did not seek
correction of the date of birth during the
period of five years after the incorporation
of Note 5 to FR 56 in 1979 either. His
inaction for all this period of about thirtyfive years from the date of joining service,
therefore precludes him from showing that
the entry of his date of birth in service
record was not correct."

(emphasis supplied)

6. In Home Department v. R.
Kirubakaran, (1994) Supp (1) SCC 155, the
Apex Court cautioned the Courts to be
extremely careful when the application for
alteration of date of birth is filed on the eve
of superannuation or near about that time.
The relevant portion of the said report is
being quoted below:

"9. .....As such whenever an
application for alteration of the date of
birth is made on the eve of superannuation
or near about that time, the Court or the
Tribunal
concerned
should
be
more
cautious because of the growing tendency
amongst a section of public servants, to
raise such a dispute, without explaining as
to why this question was not raised earlier.
In the facts and circumstances of the case,
it is not possible to uphold the finding
recorded by the Tribunal."

(emphasis supplied)

7. In State of T.N. v. T.V. Venugopalan,
(1994) 6 SCC 302, the Apex Court
reiterated that a Government servant should
not be permitted to correct the date of birth
recorded in his service record at the fag end
of his career. The relevant portion of the
said report is reproduced below:

"7. ...The government servant
having declared his date of birth as entered
in the service register to be correct, would
not be permitted at the fag end of his
service career to raise a disputed as
regards the correctness of the entries in the
service register. It is common phenomenon
that
just
before
superannuation,
an
application would be made to the Tribunal
or court just to gain time to continue in
service and the Tribunal or courts are
unfortunately unduly liberal in entertaining
and allowing the government employees or
public employees to remain in office,
which is adding an impetus to resort to the
fabrication of the record and place reliance
thereon and seek the authority to correct it.
When
rejected,
on
grounds
of
technicalities, question them and remain in
office till the period claimed for, gets
expired."

(emphasis supplied)

8. In Burn Standard Company Limited
& Ors. v. Dinabandhu Majumdar & Anr,
(1995) 4 SCC 172, the Apex Court has
reiterated that ordinarily this Court should
not entertain a writ petition filed by an
employee of the Government or its
instrumentality towards the fag end of his
service. The Apex Court in paragraph no.
10 has opined as under:

"10.
Entertainment
by
High
Courts of writ applications made by
employees of the Government or its
instrumentalities at the fag end of their
services and when they are due for
retirement from their services, in our view,
is unwarranted. It would be so for the
reason that no employee can claim a right
to
correction
of
birth
date
and
entertainment of such writ applications for
correction of dates of birth of some
132 INDIAN LAW REPORTS ALLAHABAD SERIES
employees
of
Government
or
its
instrumentalities will mar the chances of
promotion of their juniors and prove to be
an undue encouragement to the other
employees to make similar applications at
the fag end of their service careers with
the sole object of preventing their
retirements when due. Extraordinary
nature of the jurisdiction vested in the
High Courts under Article 226 of the
Constitution, in our considered view, is
not
meant
to
make
employees
of
Government or its instrumentalities to
continue in service beyond the period of
their entitlement according to dates of
birth
accepted
by
their
employers,
placing reliance on the so-called newlyfound material. The fact that an employee
of Government or its instrumentality who
will be in service for over decades, with
no objection whatsoever raised as to his
date of birth accepted by the employer as
correct, when all of a sudden comes
forward towards the fag end of his
service career with a writ application
before the High Court seeking correction
of his date of birth in his Service Record,
the very conduct of non-raising of an
objection in the matter by the employee,
in our view, should be a sufficient reason
for the High Court, not to entertain such
applications on grounds of acquiescence,
undue delay and laches. Moreover,
discretionary jurisdiction of the High
Court can never be said to have been
reasonably and judicially exercised if it
entertains such writ application, for no
employee, who had grievance as to his
date of birth in his `Service and Leave
Record' could have genuinely waited till
the fag end of his service career to get it
corrected by availing of the extraordinary
jurisdiction of a High Court. Therefore,
we have no hesitation, in holding, that
ordinarily High Courts should not, in
exercise
of
its
discretionary
writ
jurisdiction,
entertain
a
writ
application/petition filed by an employee
of the Government or its instrumentality,
towards the fag end-of his service,
seeking correction of his date of birth
entered in his Service and Leave Record'
or Service Register with the avowed
object of continuing in service beyond the
normal period of his retirement."

 (emphasis supplied)

9.

Turning
to
the
facts
and
circumstances
of
the
case
at
hand,
admittedly the petitioner entered in the
service of Nigam in the year 1989 and the
date of birth entered in the service record
was on the basis of High School certificate
submitted by him. It is not the case of the
petitioner that his service book was never
shown to him or that the petitioner did not
know about the date of birth entered into
his service record.

10. Even though the petitioner has put
in 28 years of service, before approaching
this Court, the petitioner has neither
disputed the correctness of his serviced
record nor has he been able to state any
cogent reason for the change in the date of
birth entered in his service record.

11. In view of the consistent legal
position, the relief prayed for cannot be
granted. The petition is devoid of merit and
is accordingly dismissed.
----------
(2020)09ILR A132
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.