# Smt. Chandra Mukhi v. Union of India

- **Citation:** Service Bench No. 2019 of 2000
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Service Bench No. 2019 of 2000
- **Bench:** Munishwar Nath Bhandari, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-chandra-mukhi-v-union-of-india-46309
- **Pages:** 5

## Headnote

taken as conclusive evidence for the
purpose of retirement and it cannot be
altered subsequently - Since there was no
change or alteration in the date of birth in the
service book by the Department and the entry
was verified by the petitioner's husband himself,
there was no occasion for providing any
opportunity of hearing. (Para 7, 9, 12, 13, 15)

B. The stale claim and belated applications
for alteration of the date of birth recorded
in the service book after unexplained and
inordinate delay, need to be scrutinized
carefully
and
interference
is
made
sparingly and without circumspection - In
the present case, the dispute of date of birth
was
raised
after
attaining
the
age
of
superannuation. (Para 11, 17)

C. Pension is not a bounty but it is hardearned benefit for long service which
cannot be taken away - Withholding of
retiral benefits is arbitrary and unfair on the part
of the employer. The plea that the husband of
the petitioner did not approach for payment of
these benefits is legally not tenable. (Para 20 to
23)

Writ petition partly allowed. (E-4)

Precedent followed:

## Text

1184 INDIAN LAW REPORTS ALLAHABAD SERIES
treated as one unit, for working out fifty
percent reservation for promotion to the
post(s)
of
Head
Clerk
and
Clerk,
particularly when the promoted post(s) also
carry distinct pay-scale and eligibility and
do not form part of one cadre?

(ii)
Whether,
the
language
employed in Regulation 2(2) of the
Regulations framed under Chapter III of
the Act of 1921 has to be literally
construed, even if it curtails the right of a
class IV employee to be considered for
promotion, on account of clubbing of
post(s) so as to determine the fifty percent
promotional quota as is laid down in the
case of Dina Nath (supra) and in the case of
Malkhan Singh (supra)?

(iii) Whether, the view taken by
this Court in the case of Gyan Singh
(supra) and in the case of Dilip Rai (supra)
that colour of initial appointment would be
retained by an employee, even after he gets
promoted (be it direct recruitment or by
promotion to obviate the difficulty caused
due to clubbing of distinct posts in the
feeding cadre), lays down the correct law?
----------
(2020)03-05ILR A1184
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE MANISH KUMAR, J.

Service Bench No. 2019 of 2000

Smt. Chandra Mukhi ...Petitioner
Versus
Union of India ...Respondent

Counsel for the Petitioner:
O.P.
Srivastava,
Manish
Nigam,
O.P.
Srivastava, Sushil Kumar Singh
Counsel for the Respondent:
Manik Sinha, B.K. Shukla

A. Service - Pensionary benefits - The date
of birth entered in the service book is
taken as conclusive evidence for the
purpose of retirement and it cannot be
altered subsequently - Since there was no
change or alteration in the date of birth in the
service book by the Department and the entry
was verified by the petitioner's husband himself,
there was no occasion for providing any
opportunity of hearing. (Para 7, 9, 12, 13, 15)

B. The stale claim and belated applications
for alteration of the date of birth recorded
in the service book after unexplained and
inordinate delay, need to be scrutinized
carefully
and
interference
is
made
sparingly and without circumspection - In
the present case, the dispute of date of birth
was
raised
after
attaining
the
age
of
superannuation. (Para 11, 17)

C. Pension is not a bounty but it is hardearned benefit for long service which
cannot be taken away - Withholding of
retiral benefits is arbitrary and unfair on the part
of the employer. The plea that the husband of
the petitioner did not approach for payment of
these benefits is legally not tenable. (Para 20 to
23)

Writ petition partly allowed. (E-4)

Precedent followed:

1. U.O.I. Vs. Harnam Singh, 1993 AIR 1367
(Para 16)

2. U.O.I. & ors. Vs. Kantilal Hematram Pandya,
(1995) 3 SCC 17 (Para 17)

3. D.S. Nakara & ors. Vs. U.O.I., 1983 AIR 130;
1983 SCR (2) 165 (Para 22)

4. Grid Corporation of Orissa & ors. Vs.
Rasanadas Das, (2003) 10 SCC 297 (Para 22)

5. U.P. Raghavendra Acharya & ors. Vs. St. of
Kar. & ors., (2006) 9 SCC 630 (Para 22)
3-5 All. Smt. Chandra Mukhi Vs. Union of India
1185
6. St. of Kerala & ors. Vs. M. Padmanabhan
Nair, 1985 AIR 356; 1985 SCR (2) 476 (Para 23)

Petition
challenges
judgment
dated
28.07.2000, passed in Review Petition No.
23 of 1997.
Judgment dated 07.07.1997, passed in
Original Application No. 256 of 1994.
Judgment dated 12.02.1994, passed by
Assistant Engineer (M.G.) North Eastern,
Railways, Gonda.

(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred by the petitioner for following
reliefs which are quoted hereunder:-

(i) For quashing of the judgment
dated 28.07.2000 passed in Review Petition
No. 23 of 1997 passed by opposite party
No. 6

(ii) For quashing of the judgment
dated 07.07.1997 passed in Original
Application No. 256 of 1994 passed by
opposite party No. 6

(iii) For quashing of the judgment
dated 12.02.1994 passed by Assistant
Engineer (M.G.) North-Eastern, Railways,
Gonda, by which the husband of the
petitioner was retired from service in
illegal and arbitrarily manner

(iv) For directing the opposite
parties to make full payment of salary to
the
petitioner
from
14.02.1992
till
12.02.1994
treating
husband
of
the
petitioner as in continuous service with all
consequential benefits.

(v) For directing the opposite
parties for payment of entire pensionary
benefits to the petitioner with interest at
market rate and also direct the opposite
parties for payment of family pension to the
petitioner.

2. A dispute about date of birth of
petitioner's husband exists. According to
petitioner, the correct date of birth of her
husband is 15.10.1942 but in Card "A" it
was entered as 02.02.1935 due to which he
was retired by order dated 12.02.1994 with
effect from 14.02.1994. Felling aggrieved
by the order dated 12.02.1994, the
petitioner's husband preferred an Original
Application No. 256 of 1994 before the
Central Administrative Tribunal.

3. It was stated that applicant joined
service in the Railways as "Gangman" on
19.04.1966 at the age of about 24 years. By
the order dated 12.02.1994, he was made to
retire with effect from 14.02.1994 at the
age of 52 years by treating his date of birth
to
be
02.02.1935
whereas
it
was
15.10.1942.

4. In support of the contention raised
above, the learned counsel for the petitioner
has placed reliance on Card "B", seniority
list and medical reports wherein the date of
birth of her husband was entered as
15.10.1942.

5. The date of birth of the husband
was changed by the authorities from
15.10.1942 to 02.02.1935 in Card "A". It
has further been submitted that entry of
date of birth in the service book is a
conclusive proof and it cannot be altered
subsequently
without
affording
any
opportunity of hearing.

6. The learned Tribunal has failed to
consider that Card "A", wherein the date of
birth was shown as 02.02.1935, is a
subsequent document, hence the same was
wholly irrelevant and could have taken as
primary evidence for the purpose of
ascertaining the date of birth.

7. The learned Tribunal has ignored
the provisions of law under which the date
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
of birth entered in the service book is taken
as conclusive evidence for the purpose of
retirement and it cannot be altered
subsequently. It has further been submitted
if it is presumed that the date of birth of the
husband was 02.02.1935, he would have
been 31 years of age at the time of his
initial appointment in the year 1966
whereas the maximum age for entering in
the service was 25 years and if the date of
birth of the husband is taken as 15.10.1942,
he was about 24 years i.e. less than 25
years at the time of initial appointment.

8. Per contra, the learned counsel
representing the Railways produced the
service book in compliance of the earlier
order of this Court. In the service book,
date of birth of petitioner's husband was
entered as 02.02.1935 and the same was
verified by him by putting his signature and
thumb impression.

9. Since the date of birth was verified
by the petitioner's husband himself and if
there was no alteration in the service book
then there would arise no occasion for
providing any opportunity of hearing.

10. It has further been contended that
the husband of the petitioner was initially
appointed as "Causal Labour" in the
Department in the year 1956 and the
services were regularized in the year 1996.

11. It has further been contended by
the learned counsel for the Railways that
after attaining the age of superannuation, an
employee cannot dispute about his date of
birth entered in the service record.

12. After hearing the learned counsel
for the respective parties and examining the
record which was produced before this
Court, the date of birth of petitioner's
husband entered in the service book as
02.02.1935 which was verified by the
husband by putting his signature and thumb
impression.

13. There is no alteration or cutting in
the date of birth in the service book.
Service book was also shown to the learned
counsel for the petitioner and after the
perusal of the same, he was unable to
dispute the entry in the service book
containing date of birth as 02.02.1935.
There was no cutting or alternation in the
entry in the service book.

14. If the contention of the petitioner
is accepted that the date of birth of her
husband is 15.10.1942 then at the time of
initial appointment as "Causal Labour" in
the year 1956, the age of the husband
would have been about 14 years whereas
the admissible age for entry in the service
was between 18 to 25 at that time. So at
any stretch of imagination the petitioner's
husband would have not been given
appointment and if it is calculated on the
date of birth of 02.02.1935 the age would
have been about 24 years which is within
the maximum age limit of 25 years, thus
the contention of the learned counsel for
the petitioner cannot be accepted.

15. Since there is no change or
alteration in the date of birth in the service
book by the Department and the entry of
date of birth is verified by the husband of
the petitioner, there was no occasion for
providing any opportunity of hearing.
According to the petitioner admittedly
entry in the service book is the conclusive
proof of determination of date of birth than
three documents i.e. Card "B", medical
reports
and
seniority
list
would
be
irrelevant
for
the
purposes
of
determination.
3-5 All. Smt. Chandra Mukhi Vs. Union of India
1187

16. The Apex Court in the case of
Union of India Vs. Harnam Singh, 1993
AIR 1367, has been held that the date of
birth entered in the service book is relevant
for the reason that right to continue in
service stands decided by its entry in the
service book. A government servant, who
has declared his age at the initial stage of
the employment is precluded from making
a request for correction of his age. Only
exception to claim correction in date of
birth is if he is in possession of the
irrefutable proof relating to his date of birth
and must do so without unreasonable delay.

17. In the case of Union of India & Ors.
Vs. Kantilal Hematram Pandya, 1995 SCC (3)
17, it has been held that the stale claim and
belated applications for alter-ation of the date of
birth recorded in the service book after
unexplained and inordinate delay, that too on
the eve of retirement need to be scrutinized
carefully and interference is made sparingly and
without circumspection. In the present case, the
dispute of date of birth was raised after attaining
the age of superannuation.

18. Petitioner's husband filed the Original
Application before Central Administrative
Tribunal, to question the date of birth when he
himself had verified it in the service record by
putting his signature and thumb impression.

19. Under these circumstances, this Court
does not find any illegality in the judgment
dated 28.07.2000 passed in Review Petition No.
23 of 1997 and the judgment dated 07.07.1997
passed in Original Application No. 256 of 1994,
hence does not call for any interference by this
Court.

20. As far as prayer for payment of
pension with other post retiral benefits and
family pension are concerned, petitioner's
husband retired from service with effect from
14.02.1994 but till date no post retiral benefits
have been extended. Withholding of retiral is
arbitrary and unfair on the part of the employer.
The plea that the husband of the petitioner did
not approach for payment of these benefits is
legally not tenable.

21. The learned counsel for the Railways
failed to show anything on record that the
Railways had made any effort or initiated the
procedure for payment of pension prior or even
thereafter on the retirement of petitioner's
husband.

22. The Apex Court in the cases of D.S.
Nakara & Others Vs. Union of India, 1983
AIR 130, 1983 SCR (2) 165, Grid Corporation
of Orissa And Others Vs. Rasanadas Das,
(2003) 10 SCC, 297 and U.P. Raghavendra
Acharya And Others Vs. State of Karnataka
And Others, (2006) 9 SCC 630, it has been
been held that pension is not a bounty but it is
hard-earned benefit for long service which
cannot be taken away. It is treated to be
deferred salary. It is akin to right of property.
The payment of pension does not depend upon
the discretion of the Government. It is a social
welfare measure rendering socio-economic
justice to those who in the hey-day of their life
ceaselessly toiled for the employer on an
assurance that in their old age they would not be
left in lurch.

23. The Apex Court in the case of
State of Kerala And Ors. Vs. M.
Padmanabhan Nair, 1985 AIR 356, 1985
SCR (2) 476 has held that pension and
gratuity are no longer any bounty to be
distributed by the Government to its
employees on their retirement but a
valuable rights and property in their hands
and any culpable delay in settlement and
disbursement thereof must be visited with
the penalty of payment of interest at the
current market rate till actual payment.
1188 INDIAN LAW REPORTS ALLAHABAD SERIES

24. For the reasons mentioned
hereinabove, the petitioner shall approach
the competent authority within a period of
ten days alongwith the certified copy of the
order of this Court for payment of retiral
dues and family pension and the authorities
are directed to complete the necessary
formalities and make the payment of due
amount to the petitioner within a period of
two months with 6 percent simple interest.
The writ petition to claim retiral benefit is
allowed while dismissing on the claim of
the petitioner for taking the date of birth of
her husband as 15.10.1942.
----------
(2020)03-05ILR A1188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 5748 of 1999

Satish Narain Treivedi ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Anil Kumar, Anurag Srivastava

Counsel for the Respondent:
C.S.C.

A. Service Law- Appointment/Payment
of salary - U.P. Intermediate Education
Act, 1921-Regulations 101 to 104 -.
Service
-
Post
retiral
benefits
-
Appointment should be made after
taking the approval from the competent
authority - Appointment of the petitioner,
without prior approval of the DIOS, is void
and he is not entitled to any benefit or relief.
(Para 7, 8, 22, 23)

B. A regular appointment to a post
under the State or Union cannot be
made without issuing advertisement in
the prescribed manner - The petitioner's
appointment made by management, without
advertisement of the vacancy and without
inviting applications from the candidates
from open market to participate in the
selection process, is void appointment. (Para
10, 16 to 20)

C. Merely because an employee had
continued under cover of an order of
the
court,
described
as
"litigious
litigation", he would not be entitled to
any right to be absorbed or made
permanent in the service. - Interim order
dated 04.11.1999, on the strength of which,
the petitioner was continuing in service and
was getting the salary from the State
Exchequer, would not give any benefit or
right to the petitioner. (Para 24 to 28)

Writ petition dismissed. (E-4)

Precedent followed:

1. Jagdish Singh Vs. St. of U.P. & ors.,
(2006) 3 UPLBEC 2765 (Para 7, 22)

2. National Fertilizers Ltd. & ors. Vs. Somvir
Singh, (2006) 5 SCC 493; 2006 SCC (L&S)
1152 (Para 17)

3. U.P.S.C. Vs. Girish Jayanti Lal Vaghela,
(2006) 2 SCC 482; 2006 SCC (L&S) 339
(Para 17)

4. Secretary, St. of Karnataka & ors. Vs.
Umadevi & ors., (2006) 4 SCC 1; 2006 SCC
(L&S) 753 (Para 25)

5. Shesh Mani Shukla Vs. District Inspector
of Schools, Deoria & ors., (2009) 15 SCC
436 (Para 27)

6. Raghvendra Rao etc. Vs. St. of Karnataka
& ors., JT 2009 (20) SC 520 (Para 28)

Petition
challenges
order
dated
07.09.1999,
passed
by
District
Inspector of School-II, Lucknow.

(Delivered by Hon'ble Saurabh Lavania, J.)