# Subhash Chand v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-10
- **Case number:** Writ-A No. 16730 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chand-v-state-of-u-p-ors-49623
- **Pages:** 7

## Headnote

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Compulsory retirement from
358 INDIAN LAW REPORTS ALLAHABAD SERIES
the post of Safai Nayak - Determination of
Age - No High School certificate available
- Certificate of below High School, how far
relevant - Age as recorded in Service book
on the basis of medical test, can it be
ignored - Held, all that is relevant for the
purpose
of
recording
a
government
servant's date of birth is his High School
Certificate or a certificate of an equivalent
examination and in a case, where the
government servant has not passed any
such examination, the date of birth or age
recorded in his service-book at the time of
entry into service shall be deemed to be
correct - Transfer certificate relating to
Class VII is not at all relevant to
determine the petitioner's age - Now,
what
remains
relevant
about
the
petitioner's age is the entry at the time of
his appointment recorded in the servicebook and nothing else. The said entry is
immutable and cannot be imperiled by
sundry complaints from busy bodies. (Para
12)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

1 All. Subhash Chand Vs. State of U.P. & Ors.
357
was duly complied and followed and
petitioner, admittedly, came to be appointed
against substantive vacancy, thereafter, his
service came to be regularized under Rule,
1979. In the circumstances, it cannot be
said that appointment of the petitioner was
against the service rules prescribed by
Government. Under the pension rules a
temporary government servant appointed
against a substantive post is entitled to
pension. The nomenclature ''ad-hoc' would
have no bearing to non-suit the petitioner
towards
pension.
The
nature
of
appointment is temporary appointment
against a substantive post after following
the procedure laid down to appoint such
ad-hoc/temporary Medical Officer. In the
opinion of the Court, the petitioner's
service would fall within the expression
"qualifying service" as petitioner came to
be appointed against substantive post by
following procedure prescribed by the State
Government. It is not in dispute that
appointing authority of the petitioner is the
Hon'ble Governor.

10. In the result, the writ petition is
allowed.
Impugned
order
dated
04.01.2018, is hereby set aside and
quashed. It is held that the service
rendered by petitioner on ad-hoc basis
would count towards "qualifying service",
consequently, petitioner is held entitled for
pension. The first respondent is directed to
compute pension and other post retiral
dues admissible to the petitioner by
adding the period of ad-hoc service
rendered by him. Petitioner shall be
entitled to pension on month to month
basis with effect from the date of his
superannuation. The arrears of pension
would be computed and released within
the period of three months, along with
simple interest at the rate of 6% per
annum from the date of retirement till
actual payment."

14. In the present case, it is
undisputed that appointment of petitioner
was made against substantive vacancy and
in accordance with rules. Once the
appointment
is
made
against
the
substantive vacancy following the rules,
service rendered in the adhoc capacity must
have been considered while fixing the
pensionary benefits. The same preposition
of law is also laid down by this Court as
well as Apex Court, therefore, non
consideration of adhoc services is bad and
contrary to settle proposition of law.

15. Accordingly, the writ petition is
allowed. A writ of mandamus be issued to
respondent nos. 1 & 2 to re-fix the pension
of petitioner considering the services of
petitioner rendered in adhoc capacity with
effect from 3.7.1978 to 1.4.1985 and also
pay arrears of pension alongwith 6 %
interest from due date to the date of actual
payment.
----------
(2023) 1 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 16730 of 2022

Subhash Chand ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Surendra Kumar Chaubey, Sri Marjeet Mishra

Counsel for the Respondents:
C.S.C., Sri Sanjeev Singh, Sri Sumit Suri

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Compulsory retirement from
358 INDIAN LAW REPORTS ALLAHABAD SERIES
the post of Safai Nayak - Determination of
Age - No High School certificate available
- Certificate of below High School, how far
relevant - Age as recorded in Service book
on the basis of medical test, can it be
ignored - Held, all that is relevant for the
purpose
of
recording
a
government
servant's date of birth is his High School
Certificate or a certificate of an equivalent
examination and in a case, where the
government servant has not passed any
such examination, the date of birth or age
recorded in his service-book at the time of
entry into service shall be deemed to be
correct - Transfer certificate relating to
Class VII is not at all relevant to
determine the petitioner's age - Now,
what
remains
relevant
about
the
petitioner's age is the entry at the time of
his appointment recorded in the servicebook and nothing else. The said entry is
immutable and cannot be imperiled by
sundry complaints from busy bodies. (Para
12)
Writ petition allowed. (E-1)
List of Cases cited:

1. Mohan Singh Vs U.P. Rajya Vidyut Utpadan
Ltd.& ors., 2012 SCC OnLine All 28
(Delivered by Hon'ble J.J. Munir, J.)

1. Parties have exchanged affidavits.

2. Admit.

3. Heard Mr. Surendra Kumar
Chaubey, learned Counsel for the petitioner
and Mr. Sanjeev Singh, learned Counsel
appearing on behalf of respondent Nos.3
and 4. Learned Standing Counsel has been
heard on behalf of respondent Nos.1 and 2.

4. This writ petition challenges the
order dated 03.10.2022 jointly passed by
the Chairman and the Executive Officer of
the Nagar Palika Parishad, Kairana, District
Shamli, compulsorily retiring the petitioner
from service as a Safai Nayak; or at least
purporting to do so.

5. The case of petitioner is that he was
appointed to the post of a Safai Karmi after
his father resigned from the employ of Nagar
Palika. The petitioner was appointed vide
letter of appointment dated 4.12.1991. He has
worked for a long period of time to the
satisfaction of his employers and was never
subjected to any disciplinary action. It is the
petitioner's case that at the time of his
appointment, he was required to submit his
age and fitness certificates. The petitioner
appeared before the Executive Officer of the
Nagar Palika way back in the year 1991 and
produced his Transfer Certificate relating to
Class VII from the school that he had last
attended. The Executive Officer asked the
petitioner to appear before the Chief Medical
Officer for the purpose of determination of
his age. The Chief Medical Officer, by a
Certificate dated 23.12.1991, that is on record
as Annexure No.2, opined the petitioner to be
aged about 25 years. In the year 2010, there
was a complaint about the petitioner's age and
he was required to submit an explanation.
The petitioner submitted his explanation on
18.06.2010, wherein he mentioned the facts
that had transpired at the time of his
appointment. The petitioner submitted an
explanation stating therein that he did not
play any fraud, but the Chief Executive
Officer at the time of his appointment asked
him to go to the Chief Medical Officer for a
medical examination to estimate his age. The
petitioner further said that he would have no
objection if his date of birth is determined
according to his transfer certificate relating to
Class VII. The petitioner's reply dated
18.06.2010 is on record.

6. Acting upon the complaint that was
before the Nagar Palika in the year 2010,
the Executive Officer sought guidance of
1 All. Subhash Chand Vs. State of U.P. & Ors.
359
the Assistant Director, Local Bodies, who
opined by his Memo No.462 dated
20.09.2011 that under the Uttar Pradesh
Recruitment to Services (Determination of
Date of Birth) Rules, 1974 (for short ''the
Rules of 1974'), whatever age of the
employee had been entered in the servicebook at the time of his appointment was
immutable and could not be changed. No
representation or objection to the recorded
date of birth can be entertained. After the
aforesaid
guidance
by
the
Assistant
Director Local Bodies, proceedings against
the petitioner were dropped. Now, a
complaint has been made by one Deepak
Kumar Chandra against the petitioner by
approaching the Minister in the concerned
Department reiterating the complaint about
petitioner's date of birth. In this regard, a
show cause notice was issued to the
petitioner on 16.09.2022. The petitioner
submitted a reply to the show cause with
the specific assertion that the complaint has
been made on account of animosity. The
petitioner had never concealed his date of
birth, but his plea based on the pre-High
School date of birth was not accepted by
the Nagar Palika. It was also pointed out
that on an earlier occasion when the same
question arose, after the guidance on the
issue by the Assistant Director, Local
Bodies, the matter was dropped and the
petitioner's date of birth in his service-book
was regarded as one that could not be
changed.

7. By the impugned order dated
03.10.2022, jointly signed by the Chairman
and the Executive Officer of the Nagar
Palika Parishad, the petitioner's date of
birth, on the basis of his Transfer
Certificate from Class VII has been
considered to be his correct date of birth,
and further, taking note of the fact that the
petitioner's younger brother has retired
from service, it was held that the petitioner
had deliberately not produced the T.C. that
he held at the time of his appointment and
got his age lesser than what it is recorded
on the basis of medical opinion secured
from the Chief Medical Officer. It is also
recorded that a Transfer Certificate was
produced by the petitioner when he sought
promotion to the post of Safai Nayak. Now,
the Nagar Palika has accepted his date of
birth based on the Transfer Certificate from
the school relating to his Class VII
acknowledging his date of birth as
07.01.1961 instead of 23.12.1966 recorded
in his service-book. On that basis, the
Nagar Palika, acting through the two
Authorities above mentioned, have passed
an order queerly described as an order of
''compulsory retirement' from service with
a direction that all salary drawn by the
petitioner after the age of superannuation
reckoned from his date of birth going by
his T.C. i.e. 07.01.1961, be recovered.

8. Mr. Surendra Kumar Chaubey,
learned Counsel for the petitioner has
assailed the order impugned, and amongst
other things, submitted that the date of birth
once entered in the service-book cannot be
changed. He submits that whatever date of
birth is recorded in the service-book is
binding not only upon employee but also
upon the employer as well. Just as the
employee cannot later on produce evidence
about his correct date of birth, the employer
also cannot act on complaints or fish out
evidence about the employee's date of birth
and alter the employee's recorded date of
birth
in
the
service
record
to
his
disadvantage.
The
Rule
about
the
immutability of date of birth recorded in
the service record, according to the learned
Counsel for the petitioner, works both
ways, that is to say, for the employer and
employee.
360 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Mr. Sanjeev Singh, Advocate
appearing for the Nagar Palika, on the other
hand, states that though it is trite law that
the date of birth recorded in the service
record is not to be altered, but in a case
where the employee has played fraud,
nothing
prevents
the
employer
from
correcting the date of birth. He submits that
there is an admission by the petitioner that
his date of birth recorded in the transfer
certificate from his school relating to Class
VII is 07.06.1961 and not what is entered
in the service record on the basis of
medical examination done by the Chief
Medical Officer. According to Mr. Sanjeev
Singh, there is absolutely no impediment in
a case of this kind where there is patent
fraud and also an acceptance on the
petitioner's part for a correction of his date
of birth. Mr. Sanjeev Singh, however,
accepts that the order impugned should not
have
been
characterized
as
one
of
compulsory retirement. It is an order
declaring the petitioner to have retired upon
attaining the age of superannuation and
asking him to go home.

10. Upon hearing learned Counsel for
the parties, this Court finds that there is no
denying the fact that the petitioner's date of
birth admittedly recorded in his transfer
certificate
relating
to
Class
VII
is
07.01.1961. However, at the time of the
petitioner's appointment, he was sent for his
medical examination to determine his age
to the Chief Medical Officer. The Chief
Medical
Officer
determined
his
age
estimating it to be 25 years and on that
basis, the petitioner's date of birth in his
service-book
has
been
recorded
as
23.12.1966 i.e. the date of birth which is
recorded in the petitioner's service-book
way back on 15.07.1992. Now, the question
is: Can the petitioner's age recorded in his
transfer certificate relating to Class VII be
looked into in order to hold an old entry
relating to his age in the service-book
wrong; or one based on fraud in this
regard? The Rules of 1974 are a short
statutory instrument and read as under:-

"GOVERNMENT OF UTTAR
PRADESH

NIYUKTI ANUBHAG (4)

In pursuance of the provisions of
clause
(3)
of
Article
348
of
the
Constitution, the
Governor
is
pleased
to
order
the
publication of the following English
translation of notification no. 41/2/69
Niyukti (4), dated May 28, 1974;

No. 41/2/69-Niyukti (4)

May 28, 1974

In exercise of the powers under the
proviso to Article 309 of the Constitution,
the Governor is pleased to make the
following rules:

Uttar Pradesh Recruitment to Services
(Determination of Date of Birth) Rules,
1974.

1. Short title and commencement:-(1)
These rules may be called the Uttar Pradesh
Recruitment to Services (Determination of
Date of Birth) Rules, 1974
(2) They shall come into force at once.

2. Determination of correct date of
birth or age.- 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
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
1 All. Subhash Chand Vs. State of U.P. & Ors.
361
representation shall be entertained for
correct- ion of such date or age in any
circumstances whatsoever.

3. Overriding effect.-These rules shall
have
effect,
notwithstanding
anything
contrary contained in the relevant service
rules or orders.

By order,

GHULAM HUSAIN,

Ayukt Evam Sachiv."

11. By the first amendment to the
Rules made in the year 1980, it was
provided as under :-

"2. Determination of correct date of
birth or age.- The date of birth of a
Government servant as recorded in the
certificate of his having passed the High
School or equivalent examination at the
time of his entry into the Government
service or where a Government servant has
not passed any such examination as
aforesaid or has passed such examination
after joining the service, the date of birth or
the age recorded in his service book at the
time of his entry into the Goverment
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. Apparently, the first amendment
does not apply to the petitioner's case
because he never passed his High School
either before or during service. When the
petitioner entered service, he was not a
matriculate and had not passed his High
School or an equivalent examination. A
perusal of Rule 2 of the Rules of 1974
makes it pellucid that all that is relevant for
the purpose of recording a government
servant's date of birth is his High School
Certificate or a certificate of an equivalent
examination and in a case, where the
government servant has not passed any
such examination, the date of birth or age
recorded in his service-book at the time of
entry into service shall be deemed to be
correct. A perusal of the Rules of 1974
would show that any certificate from an
educational institutions below the Grade of
High School is not at all relevant to
determine a government servant's age. It is
perhaps for this reason that when the
petitioner appeared before the Appointing
Authority at the time of appointment, and
as he says, produced his transfer certificate,
he was directed to appear for his medical
examination before the Chief Medical
Officer. Apparently, when any school
certification below the High School or an
equivalent examination is not relevant to
determine
the
employee's
age,
the
Appointing Authority would not have
looked into a transfer certificate relating to
Class VII. These are circumstances which
show that what the petitioner asserts is
correct. Even if it was incorrect, the
transfer certificate relating to Class VII is
not at all relevant to determine the
petitioner's
age.
Now,
what
remains
relevant about the petitioner's age is the
entry at the time of his appointment
recorded in the service-book and nothing
else. The said entry is immutable and
cannot be imperilled by sundry complaints
from busy bodies, or may be sworn
enemies. A government servant's age of
retirement cannot be subjected to perpetual
uncertainty on account of disgruntled
complainants questioning his date of birth
and laying complaints to the Appointing
Authority, saying that the government
servant's recorded date of birth in the
service record is incorrect. If that were
permitted, it would introduce a pernicious
362 INDIAN LAW REPORTS ALLAHABAD SERIES
uncertainty about the tenure of government
servants and much affect their efficiency.

13. Quite apart, Rule 3 of Rules of
1974 indicate that the said Rule gives the
1974 Rules overriding effect over any other
service rules or orders. Therefore, what
Rule 2 provides has to be given its fullest
effect. The result is that the petitioner's date
of birth recorded in his service-book cannot
be questioned. It cannot be questioned by
the petitioner; and likewise, it cannot be
questioned by the employers as well. This
Court, therefore, is of opinion that the
impugned order dated 03.10.2022 is
manifestly illegal and without jurisdiction.

14. The view that this Court takes is
buttressed by the opinion of a Division
Bench of this Court in Mohan Singh v.
U.P. Rajya Vidyut Utpadan Ltd. and
others, 2012 SCC OnLine All 28, where
Rule 2 of the Rules of 1974 concerning a
change to the recorded date of birth in the
service-book by a non-matriculate was
considered by their Lordships. In Mohan
Singh (supra), it was held:

"12. From a perusal of the above Rule,
it transpires that if a person enters into
service after passing the High School
examination, then the date of birth recorded
in the High School certificate shall be
deemed to be his correct date of birth.
However, in case, the employee has entered
into service before passing the High School
examination, then the date of birth recorded
in the service book shall be deemed to be
his correct date of birth. The said Rule also
provides
that
no
application
or
representation shall be entertained for
correction of such date or age in any
circumstances whatsoever. Thus, in relation
to correction of date of birth, a legal fiction
has been made which means that the date
of
birth
recorded
in
either
of
the
circumstances referred to under Rule 2 of
the Rules of 1974 shall be deemed to be
correct for all purposes particularly for the
purpose
of
determining
the
age
of
retirement.
The
effect
of
deeming
provision/legal fiction has been considered
time and again. The Apex Court in the case
of Sant Lal Gupta v. Modern Co-operative
Group Housing Society Ltd., (2010) 13
SCC 336, has observed as under:

".....It is the exclusive prerogative of
the legislature to create a legal fiction
meaning thereby to enact a deeming
provision for the purpose of assuming the
existence of a fact which does not really
exist...."

13. Further reference may be made to
the decision of the Apex Court in Manorey
alias Manohar v. Board of Revenue (U.P.),
2003 (51) ALR 341 (SC).

14. Taking note of the dictum of the
Apex Court as well as Rule 2 of the Rules
of 1974, it is abundantly clear that if a
person has entered into service without
passing the High School examination, then
the date of birth recorded in his service
book shall be deemed to be correct and in
case the employee has entered into service
after passing the High School examination,
the date of birth recorded in the High
School certificate shall be deemed to be
correct."

15. In the result, this petition succeeds
and is allowed with costs. The impugned
order dated 3.10.2022, jointly passed by the
Chairman and the Executive Officer of the
Nagar Palika Parishad, Kairana, District
Shamli is hereby quashed.

16. The petitioner shall be reinstated
in service forthwith and permitted to
continue on the basis of his date of birth
recorded in his service-book. He shall be
1 All. Ramesh Chandra Yadav Vs. State of U.P. & Ors.
363
paid all arrears of salary which have
remained unpaid during this period of time
within a month. Regular payment of salary
shall be resumed forthwith.

16. Let this order be communicated to
the Chariman of Nagar Palika Parishad,
Kairana, Shamli and the Executive Officer
of the Nagar Palika Parishad, Kairana,
Shamli by the Registrar (Compliance).
----------
(2023) 1 ILRA 363
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 18689 of 2022

Ramesh Chandra Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashwani Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri Ram Prakash Shukla

A. Service Law - UP Government Servants
Conduct Rules, 1956 - Suspension -
Working as Head Master - Charge of
posting
objectionable
posts
regarding
Hindu Gods and Goddesses and Bhramins
- Suspension, when may be justified -
Held, order of suspension should not
normally depend merely on the gravity of
charges
but
should
depend
upon
a
consideration of the question whether it is
necessary to keep the delinquent away
from his post he occupies. The effect of
passing an order of suspension is to keep
such delinquent away from his office
temporarily - There may be cases where
suspension may be justified also to avoid
misuse of the authority of his office,
misuse which may result in obstruction to
the proper trial of the charges against him
- High Court, although directed the
enquiry to be continued and restrained the
petitioner from making such post, but
found no need to keep the petitioner
under suspension. (Para 5, 9 and 11)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Shri Ashwani Kumar Yadav,
learned counsel for the petitioner, learned
Standing Counsel for the State-respondent
and Shri Ram Prakash Shukla, learned
counsel for respondent Nos. 2 to 4.

2. The challenge laid in this writ
petition is to an order dated 3.11.2022
passed
by
Basic
Shiksha
Adhikari,
Bhadohi-respondent No. 3 whereby the
petitioner
has
been
placed
under
suspension.

3. Learned counsel for the petitioner
submits that petitioner is working as
Incharge Head Master in Composite School
Bhiriura, Block Gyanpur, District Bhadohi.
The work and conduct of the petitioner has
throughout remained satisfactory and there
is no complaint whatsoever in his discharge
of duties as Incharge Headmaster. The
petitioner has received the impugned
suspension order on his WhatsApp number
and without giving any show cause notice
or opportunity of hearing, he has been
suspended. The allegations levelled against
the petitioner is vague. Learned counsel for
the petitioner submits that meantime a first
information report dated 4.11.2022 being
Case Crime No. 0213 of 2022, under
Sections 395A, 505 (2) IPC, Police Station
Gyanpur, District Bhadohi has been lodged
against the petitioner. Learned counsel for
the petitioner submits that there is election
of Teachers Association and due to political