# State of U.P. and others v. Krishna Murari Lal

- **Citation:** (2008) 2 ILRA 566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-23
- **Bench:** Ashok Bhushan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-krishna-murari-lal-41222
- **Pages:** 5

## Headnote

of Date of Birth Rules 1974-Rule-3-date
of birth once recorded in service book-in
absence of High School certificate-shall
be final-concerned employee admittedly
a High School fail-wholly irrelevantbefore entering in service-High School
pass certificate not in existence-heldauthorities rightly rejected the plea of
employee.

Held: Para 16

Thus, the date of birth recorded in the
certificate of the year 1959, when he had
failed in the High School does not fall
within Rule-3 and no benefit can be
drawn by the petitioner on the basis
thereof. According to the Rule-3 the date
of birth of such a government servant as
recorded in the service book at the time
of entry into service has to be treated to
be the correct date of birth. Even if any
correction was made in the date of birth
by red ink to read as 31st May, 1945 by
Settlement Officer of Consolidation, said
change was unauthorised and contrary
to the Statutory Rules. The Consolidation
Commissioner has rightly taken the view
that date of birth of the petitioner, which
was initially entered into service i.e. 3rd
December, 1943 has to be accepted.

## Text

566 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.07.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal (567) of 2008

State of U.P. and others ...Appellants
Versus
Krishna Murari Lal
...Respondent

Counsel for the Appellants:
Sri. G.C. Upadhay
S.C.

Counsel for the Respondent:
Sri Ram Mohan

U.P Retirement to Service Determination
of Date of Birth Rules 1974-Rule-3-date
of birth once recorded in service book-in
absence of High School certificate-shall
be final-concerned employee admittedly
a High School fail-wholly irrelevantbefore entering in service-High School
pass certificate not in existence-heldauthorities rightly rejected the plea of
employee.

Held: Para 16

Thus, the date of birth recorded in the
certificate of the year 1959, when he had
failed in the High School does not fall
within Rule-3 and no benefit can be
drawn by the petitioner on the basis
thereof. According to the Rule-3 the date
of birth of such a government servant as
recorded in the service book at the time
of entry into service has to be treated to
be the correct date of birth. Even if any
correction was made in the date of birth
by red ink to read as 31st May, 1945 by
Settlement Officer of Consolidation, said
change was unauthorised and contrary
to the Statutory Rules. The Consolidation
Commissioner has rightly taken the view
that date of birth of the petitioner, which
was initially entered into service i.e. 3rd
December, 1943 has to be accepted.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. Heard learned Standing Counsel
for the respondents-appellants and Sri
Ram Mohan, learned counsel for the
respondent.

2. With the consent of the parties,
this special appeal is being disposed of at
this stage without calling for any counter
affidavit specifically in view of the order
proposed to be passed today.

3. This is an intra court appeal
against the judgment and order passed by
the learned Single Judge dated 20th
December, 2007, whereby the writ
petition filed by the respondent has been
allowed and the impugned notice dated
17th April, 2003 has been quashed holding
that the petitioner is entitled to continue in
Service and to receive salary treating his
date of birth as 31st May, 1995, it has also
been provided that he would be entitled to
his retiral benefits on that basis. State of
U.P., not being satisfied by the direction
so issued, has filed this appeal.

4. The brief facts necessary for
deciding the special appeal are that the
writ petitioner was initially appointed as a
Tabulator on 7th February, 1967 in the
Consolidation
Department
and
subsequently he was granted promotions
on next higher posts. While working as
Lekhpal, he was retired treating his date
of birth as 3rd December, 1943. This led to
the filing of the writ petition no. 38857 of
2003, which has been allowed as
indicated above.
2 All] State of U.P. and others V. Krishna Murari Lal
567

5. The case of the petitioner was that
on receipt of the notice of retirement, he
came to know that his date of birth had
been wrongly recorded as 3rd December,
1943 in place of 31st May. 1945 in his
service book and on that basis the
respondents were going to retire him after
completion of 58 years service. He made
an application on 13th October, 2001
before the District Deputy Director of
Consolidation for correction of his date of
birth as 31st May, 1945, as per the High
School Certificate. On the directions of
the
District
Deputy
Director
of
Consolidation, a letter was written to the
Settlement
Officer
Consolidation,
Azamgarh on 22nd December, 2001 for
clarification qua the date of birth of the
petitioner as recorded in his service book.
After various verifications, the Settlement
Officer
Consolidation,
Maharajganj
submitted his report on 7th March, 2002
stating therein that the correct date of
birth of the petitioner was 31st May, 1945
and he accordingly sent a letter to the
Consolidation
Commissioner
U.P.
Lucknow dated 16th August, 2002 for
approval of the correction of the date of
birth of the petitioner as 31st May, 1945 in
place
of
3rd
December,
1943.
Subsequently an order was passed by the
Consolidation
Commissioner,
U.P.
Lucknow dated 17th April, 2003. The
Consolidation Commissioner took the
view that date of birth of the petitionerrespondent as recorded in the service
book is 3rd December, 1943 be accepted
as correct date of birth. Against the said
order of the Consolidation Commissioner,
writ petition no. 38857 of 2003; Krishna
Murari Lal vs. State of U.P. & Ors.

6. The learned Single Judge
summoned the original service book,
G.P.F. Papers and the seniority list etc.
vide order dated 14th August, 2007. The
learned Single Judge after examination of
records held that initially the date of birth
of the petitioner was entered as 3rd
December, 1943 in the service book,
subsequently it was corrected by red ink
and initialled by the Settlement Officer of
Consolidation. The learned Single Judge
while allowing the writ petition has
observed as follows:

"In pursuance thereof, the records
have been produced and it transpires that
though earlier his date of birth was
entered as 3. 12. 1943 in the service book,
subsequently it was corrected by red ink
and initialled by the Settlement Officer of
Consolidation. In the seniority list and
also in the G.P.F. papers the same date of
birth is reflected. It is also not disputed
that the petitioner had appeared in the
High School Examination prior to joining
the service where his date of birth is also
entered as 31.5.1945, therefore, the
contention of the learned Standing
Counsel that the petitioner is estopped
from challenging his date of birth entered
in the service record on the eve of his
retirement, cannot be maintained. Once
an incumbent had a High School
certificate before joining the service, the
said date of birth shall be taken to be
final. The petitioner had no opportunity to
challenge the entry because in all his
papers including seniority list etc., the
same date of birth as entered in his High
School certificate was reflected and it is
evident that the aforesaid anomaly has
come to his notice only at the time of his
retirement. "

7. The learned counsel for the
appellants challenging the order of the
leaned Single Judge contends that before
the learned Single it was stated by the
568 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
State authorities that the date of birth of
the petitioner in the service book was 3rd
December, 1943. The High School
certificate of the year 1959 wherein the
petitioner had failed, was not relevant.
The appellants justify the order of
Consolidation Commissioner contending
that the date of birth of the petitioner
recorded in the service book as 3rd
December, 1943 has to be treated to be
his correct date of birth.

8. Sri Ram Mohan, learned counsel
for the respondent-petitioner submits that
date of birth which was mentioned in
service book i.e. 3rd December, 1943 was
corrected by red ink and initialled by the
Settlement Officer of Consolidation and
31st May, 1945 was recorded in the
service book, it was as per the date of
birth as mentioned in the High School
certificate. He submits that in all other
relevant papers, his date of birth has been
mentioned as 31st May, 1945. The learned
Single Judge, after summoning and
examining the same, found that the
correct date of birth of the petitioner was
31st May, 1945. Therefore, the order of
the Hon'ble Single Judge be not interfered
with.

9.

We
have
considered
the
submissions made by the learned counsel
for the parties and have perused the
records.

10. The case of the appellant before
the learned Single as well as before the
Consolidation Commissioner was that at
the time of entry into service, his date of
birth was recorded as 3rd December, 1943.
The learned Single Judge has also
recorded as a finding fact that initially his
date of birth was entered as 3.12.1943 in
the service book and subsequently it was
corrected by red ink and initialled by the
Settlement Officer of Consolidation. Said
finding of the learned Single Judge has
been quoted above.

11. We proceed with the appeal
accepting the finding recorded by the
learned Single Judge that date of birth of
the petitioner was initially recorded as 3rd
December, 1943, and that the same was
subsequently corrected in red ink as 31st
May, 1945.

12. For determining the date of birth
of a government servant, Rules have been
framed, namely, U.P. Recruitment to
Services Determination of Date of Birth
Rules, 1974.

Rule-3 of Rules, 1974 reads as follows:

"(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."

13. From the perusal of the said
Rule-3, it is clear that 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
2 All] State of U.P. and others V. Krishna Murari Lal
569
passed any such examination as aforesaid,
the date of birth recorded in his service at
the time of his entry into government
service shall be deemed to be his correct
date of birth.

14. The aforesaid rule clearly
indicates
that
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 such examination, the date of birth
recorded in his service at the time of his
entry into government service has to be
treated as correct date of birth of the
government servant. In the facts of the
present case, it is admitted on record that
the petitioner-respondent has not passed
the High School.

15. It is admitted to the parties that
petitioner had appeared in High School
examination in the year 1959, he failed.
Rule-3 only refers to the high school or
equivalent examination certificate, only
where the Government servant has passed
the examination.

16. Thus, the date of birth recorded
in the certificate of the year 1959, when
he had failed in the High School does not
fall within Rule-3 and no benefit can be
drawn by the petitioner on the basis
thereof. According to the Rule-3 the date
of birth of such a government servant as
recorded in the service book at the time of
entry into service has to be treated to be
the correct date of birth. Even if any
correction was made in the date of birth
by red ink to read as 31st May, 1945 by
Settlement Officer of Consolidation, said
change was unauthorised and contrary to
the Statutory Rules. The Consolidation
Commissioner has rightly taken the view
that date of birth of the petitioner, which
was initially entered into service i.e. 3rd
December, 1943 has to be accepted.

17. The learned Single Judge has
noticed that initially the date of birth of
the petitioner was recorded as 3rd
December, 1943 in his service book. An
error has been committed in allowing the
writ petition without considering the
relevant statutory provisions of U.P.
Recruitment to Services Determination of
Date of Birth Rules, 1974, which are
relevant and applicable qua determination
of date of birth of a government servant.

18. In view of the aforesaid, the
judgment and order of the learned Single
Judge allowing the writ petition filed by
the petitioner cannot be legally sustained.
We do not find any error in the order
passed
by
the
Consolidation
Commissioner by which it was held that
the date of birth of the petitionerrespondent shall be treated as 3rd
December, 1943, as was initially entered
in his service book.

19. In view of the aforesaid, we set
aside the judgement and order passed by
the learned Single Judge dated 20th
December, 2007, we hold that the correct
date of birth of the petitioner shall be
treated as 3rd December, 1943. The
appellant shall pay the post retiral benefits
of the petitioner according to his date of
birth as 3rd December, 1943. In view of
the fact that the petitioner has continued
to work till December, 2003, the salary if
any already paid to him shall not be
recovered. Post retiral benefits of the
petitioner shall be fixed according to his
date of birth as 3rd December, 1943 and
the appellants shall take steps for
finalizing the post retiral benefits of the
570 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
petitioner accordingly, preferably within
three months from the date a certified
copy of this order is filed before the
authority concerned. On the delayed
payment
of
gratuity/retiral
benefits,
petitioner shall be entitled to 6% interest
from the date, it was due till the date of
actual payment.

20 The special appeal is allowed
subject to the observations made above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2008

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 696 of 2008

Mohd. Hashim

...Appellant
Versus
Board of Madarsa Education and another

...Respondents

Counsel for the Appellant:
Sri Ch. N.A. Khan
Sri M.A. Khan

Counsel for the Respondents:
S.C.

High Court Rules-Chapter VIII Rule-5Special Appeal-Maintainability-No order
passed on Stay Application-except grant
of time for counter affidavit-argument
that refusal to grant interim protection
in the garb of time for counter-amount
to judgment-held-wholly misconceivedSpecial Appeal not maintainable.

Held: Para 8

In
the
present
case,
there
is
no
judgement
whereby
the
petitionerappellant
has
been
aggrieved
and,
therefore, the present Special Appeal is
not maintainable.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The present Special Appeal has
been filed against an order dated 13-52008 passed by the learned Single Judge
in Civil Misc. Writ Petition No. 23990 of
2008, whereby time for filing Counter
Affidavit and Rejoinder Affidavit in the
Writ Petition has been granted and the
case has been directed to be listed after
the expiry of the period mentioned in the
said order.

2. No order appears to have been
passed on the Stay Application filed along
with the Writ Petition.

3. The grievance of the petitionerappellant is that the order dated 13-5-2008
amounts to rejection of the prayer for stay
made
in
the
Stay
Application
accompanying the Writ Petition, and the
same has resulted in making the Writ
Petition infructuous.

4. Sri M.A. Khan, learned counsel
for the petitioner-appellant submits that
the order dated 13-5-2008 amounts to
rejection of the prayer for stay made in
the Stay Application accompanying the
Writ Petition, and, therefore, the Special
Appeal is maintainable against the said
order.

5.

Having
considered
the
submissions made by the learned counsel
for the petitioner-appellant, we find
ourselves unable to accept the same.

6. No order has been passed on the
Stay Application accompanying the Writ
Petition either granting or refusing to