# Sheshmani Chaubey v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 767
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-25
- **Case number:** Writ-A No. 7547 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sheshmani-chaubey-v-state-of-u-p-ors-50748
- **Pages:** 5

## Headnote

C.S.C.

Held - Date of birth once duly recorded in
service book at the time of appointment cannot
be altered on the basis of third-party complaint
unless substantiated by high school certificate
as
per
U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules, 1974 -
No application ever filed by employee for
correction - Proceedings initiated solely on
complaint of son of employee without employer
finding fraud at time of entry into service -
Enquiry reports based on old, shabby school
register with overwriting - Adhar Card and
Driving
License
disbelieved
without
authentication
from
issuing
authority
-
Retrospective
retirement
directed
without
amending
service
book
entry
-
Action
unsustainable in law - Malicious third-party
complaints must be discouraged - Employee
entitled to reinstatement and all consequential
benefits.

Case Law Discussed:

U.P. Recruitment to Services (Determination of
Date of Birth) Rules, 1974
768 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

9 All. Sheshmani Chaubey Vs. State of U.P. & Ors.
767
18.8.2004. This court vide order dated
24.9.2021 passed in Writ-A No.12808 of
2021 (Praveen Kumar vs. State of U.P. and
others)
directed
the
District
Basic
Education Officer, Kasganj to consider the
petitioner's claim in the light of the
judgment of this court rendered in the case
of Ravi Karan Singh (supra), but District
Basic Education Officer, Kasganj without
considering the judgment of this court
passed in the case of Ravi Karan Singh
(supra)
has
passed
the
order
dated
15.2.2023, whereby claim of the petitioner
for treating his appointment to be a regular
appointment in a regular pay-scale with
effect from 18.8.2004, has been rejected.
The District Basic Education Officer,
Kasganj in his order dated 15.2.2023 has
relied upon order dated 30.1.1996 issued by
the Secretary, U.P. Basic Education Board,
Allahabad and thereby has rejected the
claim of the petitioner.

18. The order dated 15.2.2023 passed
by the District Basic Education Officer,
Kasganj on its face is unsustainable in the
eyes of law as this court has already
decided the issue in question and has held
that compassionate appointment is to be
treated as a regular appointment in regular
pay scale from the date of initial
appointment and further this court vide
judgment and order dated 18.8.2015 passed
in the case of Itwari Lal (supra) has held
that order dated 30.1.1996 passed by the
Secretary, U.P. Basic Education Board,
Allahabad is not applicable in the matters
of the compassionate appointment.

19. In view of the aforesaid reasons,
this writ petition is allowed. The order
dated 15.2.2023 passed by the District
Basic Education Officer, Kasganj, is
quashed. Respondent No.3 is directed to reexamine the matter afresh in the light of
observations made hereinabove and to pass
fresh order, expeditiously preferably within
a period of two months from the date of
service of certified copy of this order.
----------
(2023) 9 ILRA 767
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 7547 of 2020

Sheshmani Chaubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shri Prakash Dwivedi

Counsel for the Respondents:
C.S.C.

Held - Date of birth once duly recorded in
service book at the time of appointment cannot
be altered on the basis of third-party complaint
unless substantiated by high school certificate
as
per
U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules, 1974 -
No application ever filed by employee for
correction - Proceedings initiated solely on
complaint of son of employee without employer
finding fraud at time of entry into service -
Enquiry reports based on old, shabby school
register with overwriting - Adhar Card and
Driving
License
disbelieved
without
authentication
from
issuing
authority
-
Retrospective
retirement
directed
without
amending
service
book
entry
-
Action
unsustainable in law - Malicious third-party
complaints must be discouraged - Employee
entitled to reinstatement and all consequential
benefits.

Case Law Discussed:

U.P. Recruitment to Services (Determination of
Date of Birth) Rules, 1974
768 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Shri Prakash Dwivedi,
learned counsel for the petitioner and
learned Standing Counsel for the State.

2. The petitioner who has been
working as a jeep driver was served with a
show cause notice dated 14.02.2019
requiring him to show cause as to why an
enquiry may not be instituted regarding his
date of birth. The basis of the show cause
notice was a complaint made by the son of
the employee stating therein that his uncle
Rajmani Chaubey was five years younger
to his father and since his uncle had already
retired, how could his father be still in
service as he ought to have retired before
his uncle.

3. In response to the above show
cause notice, petitioner submitted his reply
annexing
therewith
the
documentary
evidence in the form of motor driving
license, adhar card and medical certificate
issued to him in the year 2002 in support of
his date of birth recorded in his service
record as 01.01.1963.

4. Some preliminary fact finding
enquiry
was
got
held
by
Assistant
Consolidation Officer who submitted report
on 04.09.2019 in which it was reported that
in the school admission register it was
found that on the back leaf there was no
mention of the year and the admission role
showed the name of petitioner at serial
no.61 as son of Laxmi Dhar Chaubey and
the date of birth recorded as 10.01.1952 but
there was over writing. The report also
stated that according to the headmaster of
the school the original register is in a very
old and shabby condition and it was on the
basis of the affidavit furnished by Shesh
Mani Chaubey that certificate regarding his
date of birth as 01.01.1963 had been issued.
The Settlement Officer (Consolidation)
found reports to be very contradictory and
since the original records relating to initial
appointment of the petitioner were not
traceable so he dropped the proceedings
vide his order dated 10.10.2019.

5. However, it transpires from the
record that further third party complaints
were pursued before the Commissioner
(Consolidation) who directed some fresh
enquiry in the matter and again on the basis
of same school records and other third
party records, a fresh report was prepared,
according to which his date of birth already
entered in service book as 01.01.1963 was
not believed and was claimed to be
10.01.1952 as per early school records.The
Settlement Officer (Consolidation) returned
a finding that the petitioner got fraudulently
his date of birth recorded in Adhar Card,
Identity Case and Voter Card and therefore,
the departments concerned may be directed
to correct the date of birth in their own
records.

6. The petitioner since was taken to
have retired on 01.01.2012 as per revised
date of birth as 01.01.1952, the direction
was issued by the Settlement Officer
(Consolidation) to make recovery of the
amount of salary already paid to him after
his new revised date of retirement.

7. Learned counsel for the petitioner
has argued that in the light of the
provisions
as
contained
under
U.P.
Recruitment to Services (Determination of
Date of Birth) Rules, 1974 until the date of
birth recorded in the service record is
sought to be altered on the basis of Class X
certificate, the date of birth already
recorded in the service book at the time of
entry in service cannot be altered. When
9 All. Sheshmani Chaubey Vs. State of U.P. & Ors.
769
this writ petition was entertained vide order
dated 15.10.2020, the order passed by the
Settlement Officer (Consolidation) dated
09.02.2020 was stayed.

8. A counter affidavit filed on behalf
of the respondents by learned Standing
Counsel had an extract of the service book
annexed with the same which showed the
date of birth of the petitioner to be recorded
as 01.01.1963. The photocopy filed, though
was legible but it appeared as if transcribed
on some piece of paper pasted upon the
original subsequently and so this Court
vide its order dated 04.07.2023 directed the
Standing Counsel to produce the original
service book and the same has now been
placed before this Court.

9. Upon perusal of the original service
book, I find that the date of birth to be
recorded as 01.01.1963 in the same hand
writing in which the other entries had been
made at the time of preparation of service
book and transparent cello tape had been
placed so that no interpolation could be
made which appears to be very old, at the
time of preparation of service book in the
year 1989 under the signature of Settlement
Officer
(Consolidation),
Mirzapur,
Varanasi.

10. Thus, from bare perusal of the
original service book it is clear that the date
of birth recorded in the service book is
01.01.1963 and that too of the time when
the service book was initially prepared. In
the entire counter affidavit there is no
averment to the effect that the petitioner
ever made any application for the change of
his date of birth recorded in the service
book, nor the respondents have ever
corrected this entry in the service book on
the basis of any school records of
petitioner, at any point of time. The entry
thus is liable to be presumed to have been
made on the basis of record available at the
time of entry into service.

11. Under the U.P. Recruitment to
Services (Determination of Date of Birth)
Rules, 1974, the date of birth initially
recorded in the service book cannot be
changed except in the case where the high
school certificate is produced to get the
date of birth changed. The relevant
provisions of 1974 Rules are reproduced
hereunder:

?3. The date of birth of a
government servant as recorded in the
certificate of 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.?

12. In service jurisprudence the
service/employment is defined as contract
of employment between employer and
employee and untill the employer comes to
find in any in-house enquiry that such a
contract has been the result of fraud which
made it to believe a false statement made as
truth to offer employment, it cannot just
proceed to annul the contract upon a third
party complaint. In the present case there is
no finding that petitioner played any fraud
or suppressed a fact from his employer to
seek employment, instead, the department
770 INDIAN LAW REPORTS ALLAHABAD SERIES
while dropping the enquiry in the year 2019
proceeded afresh on repeated persuasion of
a third party to discharge petitioner from
service. It embarked upon a fact finding
enquiry and returned finding qua date of
birth against the petitioner on the basis of a
register that was too old and in a too
shabby condition to be relied upon.

13. Still further, the documents of
Adhar Card and Driving License were
disbelieved without holding any enquiry
and getting correct information from the
issuing authorities of these documents.
Direction for taking steps to get date of
birth corrected in official records like
driving license and Adhar Card etc. by
issuing authorities , was beyond the
competence of employer which can be said
as the basis to hold petitioner guilty of any
fraud or misrepresentation for seeking
employment. What further surprises the
Court is that instead of removal of
petitioner from service as the respondents
were much confident about the findings
returned in enquiry, they made him to retire
retrospectively and that too without altering
or modifying the date of birth in service
record. All this shows that respondents
were not even sure about the correctness of
findings in the departmental enquiry which
they had conducted upon a repeated
complaint of a third party. This approach of
respondents especially when they are State
is certainly not approved of. While
exercising on a third party complaint, the
employer must first enquire as to why such
a complaint was moved by a third party at
the fag end of service career of employee
or after his putting substantial service in
employment. Third party complaints are
often guided by local village animosity
and/or someone in family or relation going
envious of employee, without having any
stake involved at all. An employer in usual
course in matters of contract of service, as I
would term it, must ignore such complaints
when they are made by a third party after
taking
long
time
of
his
entry
in
employment. In cases where any stake of a
third party is involved, employer must
investigate
the
motive
of
complaint.
Complaints made with mallicious motive
by close relatives of employees must be
outrightly rejected and must not be
investigated unless a truth is discovered
which, if had been disclosed at the time of
entry
into
employment,
would
have
rendered an employee totally ineligible but
then even in such cases, if complainant had
the knowledge and he did not come early,
should
be
discouraged
for
making
complaint at the fag end of service career.
Further in the matter of preliminary enquiry
motive appears to be oblique with an
intention to harass the employee, it must
reject at that stage itself. A lawful contract
of employment deserves to be honored so
long as it is not the result of fraud
committed for seeking it. Long blotless
service rendered by an employee, whose
work
has
been
subject
matter
of
appreciation, cannot suddenly be fired for
such vexations complaints.

14. In the present case after going
through early school records of petitioner
earlier no substance was found in the
complaint and so proceeding was dropped
vide order dated 10.10.2019. Under the
circumstances, repeated complaint by the
son was sufficient to draw inference that
son had the only motive to harass his father
may be, for the reason he married to a
woman after death of his wife.

15 . In view of the above, the order
impugned dated 19.02.2020 retiring the
petitioner contrary to the date of birth
recorded in the service book which has
9 All. Mrs. Pratibha Tripathi Vs. U.O.I. & Ors.
771
never been changed, merely on the basis of
third party complaint cannot be sustained in
law and so deserves to be quashed.
Accordingly, writ petition succeeds and is,
allowed. The order dated 19.02.2020
(Annexure no.5 to the writ petition) is
hereby quashed.

16. The petitioner shall be treated to
be in service as per the date of birth
recorded as 01.01.1963 in the service book
and shall be paid all emoluments and other
service benefits including pension etc.
accordingly.

17. Original records are returned to
learned Standing Counsel appearing for the
State.
----------
(2023) 9 ILRA 771
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.07.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 10379 of 2023

Mrs. Pratibha Tripathi ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Mani Shanker Pandey

Counsel for the Respondents:
A.S.G.I., Sri Jai Prakash Rai

Civil Law - Constitution of India,1950 -
Article 226 - Service dispute - Petitioner
working as Assistant Teacher in privately
run school recognized by Council for
Indian School Certificate Examination,
New Delhi - Retirement notice issued as
per age of superannuation - Claim of
continuation till end of academic session
as per U.P. Government rules - Held, such
rules not applicable to private unaided
schools - Service conditions not governed
by statutory provisions - No public law
element involved . Writ not maintainable.

Held:
School run by private society and recognized by
ICSE Council is not governed by rules applicable
to government schools or those under U.P.
Basic Education Board. Retirement policy based
on academic session not binding. In absence of
statutory service rules, writ jurisdiction under
Article 226 cannot be invoked for purely
contractual disputes.

Petition Dismissed.

Relied on:

St. Mary's Education Society & anr. Vs Rajendra
Prasad Bhargav & ors., (2023) 4 SCC 498 -
Discussed and applied.

(Delivered by Hon'ble Manjive Shukla, J.)

1. Heard learned counsel appearing
for the petitioner and Mr. Jai Prakash Rai,
learned
counsel
appearing
for
the
Respondent No.1.

2. Petitioner through this writ petition
has challenged the retirement notice dated
28th March, 2023 issued by the Manager,
Jyoti
Niketan
School,
Atlas
Pokhra,
Azamgarh, whereby petitioner has been
directed to retire from service on 27.6.2023.

3. Facts of the case, in brief, are that
Jyoti
Niketan
School,
Atlas
Pokhra,
Azamgarh is being run by a private society
registered under the Societies Registration
Act, 1860 and is recognized by the Council
for Indian School Certificate Examination,
New Delhi.

4. Petitioner was appointed on the
post of Assistant Teacher by the Principal