# Singh v. State of U.P. before the Civil

- **Citation:** (2000) 3 ILRA 34
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-01-05
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-u-p-before-the-civil-39528
- **Pages:** 4

## Text

INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
34
held that Jugul Kishore was sub tenant of
the petitioner. Thirdly the respondent no.
3 filed suit against respondent no. 2 for
injunction alleging that he was tenant of
the shop in question. The contention of the
petitioner was that the said suit was a
collusive one but on examining the entire
fact, it has been found that the petitioner
has transferred possession of the shop in
question to respondent no. 3. It is a finding
based on assessment of evident. I do not
find that there is any legal infirmity in this
finding.

In view of the above, there is no merit
in the writ petition. It is, accordingly,
dismissed.

However,
in
the
facts
and
circumstances of the case, the parties shall
bear their own costs.
Petition dismissed.

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By the Court

1. This writ petition has been filed
praying for a writ of certiorari to quash the
impugned order dated 5.1.2000 Annexure
1 to the writ petition and for a mandamus
directing the respondents to treat the
petitioner's date of birth as 6.7.1948
instead of 6.7.1942 for the purpose of
superannuation and hence not to retire the
petitioner from 31.7.2000.

Heard learned counsel for the parties.

2. The petitioner is working as an
Executive
Engineer
in
the
Irrigation
Department in the State of U.P. When he
entered in service his date of birth as
recorded in the High School Certificate
was 6.7.1942. However, he filed a civil
suit being O.S. No. 63 of 1994 Virendra
3All] Virendra Singh V. The State of U.P. through the Chief Secretary. and others
35
Singh vs. State of U.P. before the Civil
Judge, Roorki, district Harwar and that suit
was decreed and it was directed that his
date of birth should be treated as 6.7.1948.
True copy of the judgement of the learned
Civil Judge is Annexure 2 to the writ
petition.
Against
that
judgment
the
respondent filed an appeal being Appeal
No. 1 of 1995 which was dismissed by the
learned Additional District Judge vide
Annexure 3 to the writ petition. Against
that judgment a second appeal was filed in
this Court alongwith an application under
Section 5 of the Limitation Act and it is
stated in paragraph 9 of the writ petition
that judgment has been reserved on
31.8.1999 in that case. However, no stay
order was passed by this Court against the
judgment of the learned Additional District
Judge.

3. It is alleged in paragraph 11 of the
writ petition that despite the judgment of
the learned Additional District Judge the
respondent has proposed to retire the
petitioner on 31.7.2000 treating the date of
birth of the petitioner as 6.7.1948 instead
of 6.7.1942.

4. Sri T.P. Singh learned counsel for
the petitioner submitted that in view of the
judgment of the learned Additional District
Judge, the petitioner's date of birth should
be treated as 6.7.1948. We do not agree
with this submission. It may be mentioned
that
the
U.P.
RECRUITMENT
TO
SERVICES
DETERMINATION
OF
DATE OF BIRTH RULES, 1974 have
been framed by the State Government
under Article 309 of the Constitution. Rule
3 of the aforesaid Rules states as follows:

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."

Rule 4 states as follows:

"These
rule
shall
have
effect,
notwithstanding
anything
contrary
contained in the relevant service rules or
orders."

5. A perusal of the above rules shows
that the legal position is settled, namely
that if a person has passed High School
examination when he entered in service
then the date of birth recorded in the High
School certificate shall be treated as
correct, and when he had not passed High
School then the date of birth recorded in
his service book at the time of his entry in
government service shall be deemed to be
his correct date of birth and no application
or representation shall be entertained for
correction of such date of birth in any
circumstances. This rule has overriding
effect over any other existing rule.

6. In Union of India vs. Rama
Swamy and others A.I.R. 1997 S.C. 2055
which was a case coming from Andhra
Pradesh it was held by the Supreme Court
that the date of birth can be changed only
if there was a bona fide mistake. It was
also held that the principle of estoppel will
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
36
apply and hence when the government
servant had indicated a particular date of
birth in his application form or any other
document at the time of employment the
court should not change that date of birth.
The ratio of the above decision shall apply
with greater rigduty in U.P. because here
the 1974 Rules specifically provide that no
application or representation shall be
entertained regarding change of date of
birth in any circumstances whatsoever vide
rule 3 quoted above.

7. The use of the words in any
circumstances whatsoever' indicate that
the date of birth recorded in the High
School certificate (or in the service book at
the time of entry into government service,
if the person had not passed High School)
is not merely a presumption but conclusive
proof of the date of birth. In other words,
no evidence can be led in rebuttal of such
date. The reason for this rule was
obviously because a lot of fraud was being
played by many government servants who
did not want to retire and hence they were
getting their date of birth changed by
various
fraudulent
means
e.g.
manufacturing a false date of birth in the
'kutumb register, or a false doctor's
certificate or a collusive decree. Hence it
was decided to put an end to these
fraudulent techniques by adopting a rule of
concusive proof.

8. It is very unfortunate that a
practice has arisen in U.P. and also in
many other States to change the date of
birth which was recorded in the service
book or in the High School certificate by
some fraudulent method so that a person
can continue in service even after he has
crossed the age of retirement. This has
become a very wide spread practice in the
State of U.P. and even collusive suit are
being unfortunately filed and decreed in
this connection. The present appears to be
a case where the petitioner has sought to
reduce his age by six years by obtaining a
collusive decree. This is in gross violation
of the 1974 rules.

9. Learned counsel for the petitioner
submitted that the decree of the civil court
has become res judicata. He submitted that
the correct date of birth is 1948 as
recorded in the 'kutumb' register and not
that
recorded
in
the
High
School
certificate. We cannot agree. The 1974
Rules make the date of birth recorded in
the High School certificate conclusive of
the matter as is evident from a perusal of
the said rules. The kutumb register or other
material is wholly irrelevant for this
purpose. The judgment of the court below
appears to be collusive. It is settled law
that a collusive decree can be ignored by
the High Court in view of Section 44 of
the Evidence Act, vide Ibne Hasan Vs.
Smt. Hasini Bibi A.I.R. 1984 All. 216,
Asharfi Lal vs. Smt. Kali, A.I.R. 1995 SC
1440, etc. In Smt. Kaushilya Devi v. K.L.
Bansal, 1969 (1) SCC 59 the Supreme
Court relied on its own decision in
Bahadur Singh's case in which Bachawat,
J. observed:

"On the plain wording of Section
13(1) the Court was forbidden to pass
the decree" and held the decree to be
a nullity."

10. It is settled law that writ
jurisdiction is discretionary jurisdiction
and we are not inclined to exercise our
discretion under Article 226 of the
Constitution in this case. It seems evident
that a collusive decree was obtained by the
petitioner to reduce his age by as much as
six years. This Court cannot approve of
3All] D.I.O.S., Kanpur Nagar & another V. Diwakar Lal and others
37
such type of collusive and malafide
practice.

The petition is dismissed.
Petition Dismissed.

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By the Court

1. This Special Appeal by the District
Inspector of Schools, Kanpur Nagar and
another
has
been
filed
against
the
judgment and order dated April 16, 1999
passed by learned single Judge in Writ
Petition No. 9767 of 1994 (Diwakar Lal
and 3others versus District Inspector of
Schools, Kanpur Nagar and others).

2. P.N.N. Inter College, Kanpur
(called
'College')
is,
admittedly,
a
recognised Intermediate College governed
by the provisions of the U.P. Intermediate
Education Act, 1921 Payment of Salaries
Act, 1971 and U.P. Secondary Education
Services Commission Act, 1981. Four
posts of Lecturers in the College fell
vacant. Requisition was sent to the
Commission. Still the posts remained
vacant for more than two months as the
Commission
failed
to
select
and
recommend
candidates.
Hence
four
Assistant Teachers in L.T. grade were
promoted on the posts of Lecturer in the
College- purely on ad hoc basis as
follows:-

1.
S.K. Srivastava, L.T. Grade Teacher-
given ad hoc promotion- on post of
Lecturer Chemistry.
2.
S.K. Tiwari, L.T. Grade Teacher-
given ad hoc promotion- on post of
Lecturer Economics.
3.
Ram Surat Misra, L.T. Grade Teacher
promoted ad hoc on - post of Lecturer
Sanskrit.
4.
Mohan
Lal
Yadav, L.T. Grade
Teacher, promoted ad hoc- on the post of
Lectuer Geography.

3.
Consequently,
'short
term
vacancies' occurred on four posts of
Assistant Teachers in L.T. Grade under