# Subhramaniyam v. State of U.P. & Ors

- **Citation:** (2022) 11 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-02
- **Case number:** Writ - A No. 13744 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhramaniyam-v-state-of-u-p-ors-47862
- **Pages:** 8

## Headnote

A. Service Law - Retirement - Change in
Date of Birth - Class-IV Employees Service
Rules, 1975 - Indian Majority Act - Just as
an employee cannot be permitted to get
his date of birth changed at the fag end of
his service, the same rule would apply to
the employer also and the date of birth
could not have been changed without due
inquiry and show cause notice to the
petitioner. The employer cannot of its own
ignore the High School Certificate which had
been duly verified by the U.P. Board only on the
basis of incorrect date of birth mentioned in the
service records. (Para 14, 21)

Once the date of birth is entered into the service
record as per the educational certificate, and
accepted by the employee, the same cannot be
changed. In the case of the petitioner no
request for change of date of birth in the
service
records
was
made
by
the
petitioner.
It
was
the
respondents
themselves who had issued notice of
retirement and thereafter, the petitioner
made a representation that his High
School Certificate was already available
with the Respondent Corporation as he had
submitted the same in 1997 at the time of his
promotion. (Para 19)

There is a clear mention by the petitioner in writ
petition that he had submitted his educational
certificate in 1991 after getting a copy of High
School Certificate by him on 21.03.1991. Only
thereafter he was promoted in 1991 as a ClassIII employee. However such a statement in the
writ petition has not been denied in the counter
affidavit of the respondents. It was the duty
of the respondents to correct the date of
birth of the petitioner, if it had been
wrongly recorded in his service record
earlier, after he submitted his High School
Certificate to them in 1991, and at the
time of his promotion 1997 as a Class-III
employee. It is not as if the petitioner had
passed High School after he had joined
service. In fact he had passed High School in
1980 and he entered service in May, 1982. So it
cannot said that he deliberately mentioned a
wrong date of birth at the time of filling up of
his High School Form for the examination. (Para
20)

B. If the writ petitioner was admitted into
service below age, both parties were
equally guilty; no misrepresentation of the
writ petitioner is on record. The service
that was rendered by the writ petitioner
while still under age, was paid for by the
appellant, and no more. The breach of
rules on both sides cannot make the writ
petitioner get born earlier. (Para 15)

Editor's note: In the present case, though the
Hon'ble Court while exercising an equitable
discretion has allowed the change in DOB
following the observations in Sayta Narain
(Driver) (infra) but did not follow observations
regarding salary and refused the arrears of
salary for the period the petitioner was not in
service. (Refer Para 15)
524 INDIAN LAW REPORTS ALLAHABAD SERIES
The notice of retirement dated 28.05.2021 is set
aside. The petitioner having already retired
on 30.09.2021 and having not worked for
more than a year cannot be given arrears
of salary on the principle of 'no work no
pay'. The petitioner shall be allowed to work up
to 30.11.2024 treating his date of birth as
06.11.1964 giving him continuity of service and
annual increments and pay fixation accordingly.
The appropriate order for joining of the
petitioner at his previous place of posting shall
be passed by the Managing Director, the
respondent no. 2 within four weeks from the
date of receipt of copy of this Order. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

## Text

11 All. Subhramaniyam Vs. State of U.P. & Ors.
523
to General, therefore, she is not entitled for
any relief and her candidature has rightly
been rejected.

20. In view of above facts mentioned
hereinabove as well as law laid by this Court,
the writ petition lacks merit and is,
accordingly, dismissed. No order as to costs.
----------
(2022) 11 ILRA 523
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ - A No. 13744 of 2021

Subhramaniyam ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhiuday Mehrotra, Sri Shailendra, Sr.
Advocate

Counsel for the Respondents:
C.S.C., Sri Ved Byas Mishra, Sri Mani
Shanker Mishra

A. Service Law - Retirement - Change in
Date of Birth - Class-IV Employees Service
Rules, 1975 - Indian Majority Act - Just as
an employee cannot be permitted to get
his date of birth changed at the fag end of
his service, the same rule would apply to
the employer also and the date of birth
could not have been changed without due
inquiry and show cause notice to the
petitioner. The employer cannot of its own
ignore the High School Certificate which had
been duly verified by the U.P. Board only on the
basis of incorrect date of birth mentioned in the
service records. (Para 14, 21)

Once the date of birth is entered into the service
record as per the educational certificate, and
accepted by the employee, the same cannot be
changed. In the case of the petitioner no
request for change of date of birth in the
service
records
was
made
by
the
petitioner.
It
was
the
respondents
themselves who had issued notice of
retirement and thereafter, the petitioner
made a representation that his High
School Certificate was already available
with the Respondent Corporation as he had
submitted the same in 1997 at the time of his
promotion. (Para 19)

There is a clear mention by the petitioner in writ
petition that he had submitted his educational
certificate in 1991 after getting a copy of High
School Certificate by him on 21.03.1991. Only
thereafter he was promoted in 1991 as a ClassIII employee. However such a statement in the
writ petition has not been denied in the counter
affidavit of the respondents. It was the duty
of the respondents to correct the date of
birth of the petitioner, if it had been
wrongly recorded in his service record
earlier, after he submitted his High School
Certificate to them in 1991, and at the
time of his promotion 1997 as a Class-III
employee. It is not as if the petitioner had
passed High School after he had joined
service. In fact he had passed High School in
1980 and he entered service in May, 1982. So it
cannot said that he deliberately mentioned a
wrong date of birth at the time of filling up of
his High School Form for the examination. (Para
20)

B. If the writ petitioner was admitted into
service below age, both parties were
equally guilty; no misrepresentation of the
writ petitioner is on record. The service
that was rendered by the writ petitioner
while still under age, was paid for by the
appellant, and no more. The breach of
rules on both sides cannot make the writ
petitioner get born earlier. (Para 15)

Editor's note: In the present case, though the
Hon'ble Court while exercising an equitable
discretion has allowed the change in DOB
following the observations in Sayta Narain
(Driver) (infra) but did not follow observations
regarding salary and refused the arrears of
salary for the period the petitioner was not in
service. (Refer Para 15)
524 INDIAN LAW REPORTS ALLAHABAD SERIES
The notice of retirement dated 28.05.2021 is set
aside. The petitioner having already retired
on 30.09.2021 and having not worked for
more than a year cannot be given arrears
of salary on the principle of 'no work no
pay'. The petitioner shall be allowed to work up
to 30.11.2024 treating his date of birth as
06.11.1964 giving him continuity of service and
annual increments and pay fixation accordingly.
The appropriate order for joining of the
petitioner at his previous place of posting shall
be passed by the Managing Director, the
respondent no. 2 within four weeks from the
date of receipt of copy of this Order. (Para 22)

Writ petition allowed. (E-4)

Precedent followed:

1. Raj Narain Malviya Vs Zila Panchayat, Sant
Ravi Das Nagar & anr., Civil Misc. Writ Petition
No. 38194 of 2000, decided on 06.09.2005
(Para 13)

2. Shiv Charan Vs Executive Officer, Nagar Palika
Parishad, Lalitpur & anr., 2006 (6) ADJ 310 (Para
13)

3. U.P. Power Corporation Ltd. & anr. Vs Satya
Narain (Driver) & anr., 2005 (2) ESC 246
(Allahabad) (DB) (Para 13)

Precedent cited:

1. Karnataka Rural Infrastructure Development
Limited Vs T.P. Nataraja & ors., 2021 Legal Eagle
(SC) 535 (Para 16)

2. Home Department Vs R. Kirubakaran, 1994
Supp (1) SCC 155 (Para 18)

3. St. of M.P. Vs Premlal Shrivas, (2011) 9 SCC
664 (Para 18)

4. Life Insurance Corporation of India & ors. Vs
R. Basavaraju, (2016) 15 SCC 781 (Para 18)

5. U.P. Madhyamik Shiksha Parishad Vs Raj
Kumar Agnihotri, (2005) 11 SCC 465 (Para 18)

6. St. of Uttaranchal Vs Pitamber Dutt Semwal,
(2005) 11 SCC 477 (Para 18)

Present petition assails the notice of
retirement
dated
28.05.2021
communicating to him the date of his
retirement as 30.09.2021, treating his
DOB as 04.09.1961.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

1. Heard Sri Shailendra, learned
Senior Advocate assisted by Sri Abhiuday
Mehrotra, learned counsel for the petitioner
and Sri Mani Shanker Mishra, Advocate
holding brief of Sri Ved Byas Mishra,
learned counsel for the respondents.

2. The petitioner has challenged
the notice of retirement dated 28.05.2021
communicating to him the date of his
retirement as 30.09.2021, treating his date
of birth as 04.09.1961.

3. It is the case of the petitioner
that he was initially engaged as a daily
wage employee/Peon at the Ghaziabad
Office of U.P Scheduled Caste Finance and
Development Corporation Limited. Later
on, his appointment was made regular as
per the Class-IV Employees Service Rules,
1975. At the time of his entry into service
his date of birth was recorded as
04.09.1961. However, the petitioner had
passed his High School in the year 1980
and when he was appointed in the year
1982, he did not posses the pass certificate,
he only possesed the mark sheet of having
passed High School. He received his High
School pass certificate on 21.03.1991
which showed his date of birth as
06.11.1964.
The
petitioner
was
subsequently promoted as a Class-III
employee on 30.08.1997 and at the time of
his promotion he submitted a copy of his
High School Certificate which he had
11 All. Subhramaniyam Vs. State of U.P. & Ors.
525
received from the U.P. High School and
Intermediate Education Board in the year
1991.

4. There being an apparent
discrepancy in the date of birth mentioned
in his Original Service Book and in his
High School passed certificate. A letter was
issued on 15.10.2020 from the Head Office
at Lucknow to the District Unit, Ghaziabad
regarding verification of age and correct
date of birth of the petitioner to which the
District
Unit
replied
on
06.11.2010.
Subsequently, the Service Book of the
petitioner was also sent by the District Unit
of the Corporation to the Head Office on
07.01.2021. The Head Office at Lucknow
issued a letter to the U.P. Board of High
School and Intermediate Education to
verify the High School pass certificate of
the petitioner and the date of birth
mentioned therein through a letter dated
01.03.2021. The Intermediate Education
Board sent a copy of the report of the
Principal of the Institution where the
petitioner had studied and also a copy of
their own records on 29.06.2021 saying
that as per their records, the petitioner's
date of birth is mentioned as 06.11.1964. A
copy of the letter sent by the Secretary of
Madhyamik Shiksha Parishad U. P.,
Allahabad has been filed as Annexure-10 to
the petition. The report submitted by the
Chitrakoot Inter College, Moradabad dated
25.05.2021 has also been annexed as
Annexure-09 to the petition.

5. After verification of date of
birth from the Board as well as the from the
institution in which the petitioner had
studied, all of sudden a notice has been
issued to the petitioner on 28.05.2021
communicating date of retirement of the
petitioner as 30.09.2021. Subsequently, the
petitioner received a notice/letter dated
14.07.2021 from the Head Office at
Lucknow asking for original High School
and Intermediate Certificate, Addhar Card,
PAN Card which were sent by the District
Office to the Managing Director. The
petitioner also represented the matter
before the Managing Director at the Head
Office at Lucknow through proper channel
i.e. through the District Manager wherein
he submitted that he had passed his High
School before his appointment in the year
1980 i.e. much before his appointment in
1982 and his date of birth was mentioned
as 06.11.1964. The date of birth mentioned
in his service record was incorrect and he
should be allowed to work till 30.11.2024.
However, nothing was done in the matter.

6. It has been argued by the
learned counsel appearing for the petitioner
that there are two Government Orders
dated 23.08.1965 and 19.01.1976 with
regard to the date of superannuation of the
employees, and it has been clearly
mentioned therein that the same can only
be decided on the basis of High School
Certificate. Copies of the said Government
Orders have been filed as Annexure-16 and
17 to the writ petition.

7. It has been fairly admitted by
the learned counsel for the petitioner that in
the absence of an interim order passed in
this case, the petitioner was retired on
30.09.2021 by the respondents. However, it
has also been stated that if this Court is
pleased to find that injustice has been done
to
the
petitioner
it
can
direct
the
respondents to treat the date of retirement
of the petitioner as 30.11.2024 and allow
him to work till 30.11.2024 treating him to
be wrongly retired on 30.09.2021.

8. In the counter affidavit filed by
the respondent Corporation the contents of
526 INDIAN LAW REPORTS ALLAHABAD SERIES
the writ petition in so far as they relate to
the date of passing of High School by the
petitioner in 1980, the date of appointment
of the petitioner in 1982 and his promotion
in 1997 and the verification of his High
School Certificate from the U. P. Board of
High School and Intermediate Education
and the substance of the Government Order
dated 23.08.1965 and 19.01.1976 have not
been denied. However, the respondents
have denied the date of birth of the
petitioner as according to them, the
petitioner at the time of entry into service
had declared his the date of birth as
06.09.1961.

9. It has been stated that the
petitioner was appointed initially on daily
wage basis in the District Office at Ghaziabad
on 10.03.1981, thereafter, he was appointed
as regular Peon in 1982 and promoted
temporarily on Class-III post as Assistant
Grade-III/Vasuli Sahayak by an Order dated
13.08.1997. At the time of his initial
appointment, the petitioner had mentioned his
date of birth as 04.09.1961 and the same was
recorded not only in his service book, but
also in his Employees Provident Fund
Scheme Form on which entry was made by
the petitioner himself and not by the
respondents. All through his service tenure,
the petitioner was aware that his date of birth
as being mentioned in the service record was
04.09.1961 and that he was due to retire in
30.09.2021, it is only after issuance of the
retirement notice to the petitioner in May,
2021 that a dispute had been created by the
petitioner at the fag end of his service career,
it is impermissible in view of the law settled
by the Supreme Court. The counsel for the
respondent Corporation has pointed out a
copy of the application initially submitted by
the petitioner for his appointment as a ClassIV employee which has been filed as CA-01
to the counter affidavit. In the said
application the petitioner has mentioned that
he had passed High School and that he was
19 years old and that he had earlier worked
on daily wage basis in the office and that he
had come to know that the District Office had
a vacancy of Class-IV employee for which he
may be considered for appointment. His case
was strongly recommended and forwarded to
the Managing Director of the Corporation at
Lucknow by the District Manager on
25.04.1982. In the letter dated 25.04.1982
sent by the District Manager to the Managing
Director Corporation mention has also been
made of the fact that after permission was
granted on 30.07.1981 to initiate the process
for selection of Class-IV employees in
existing vacancies names were invited from
the Employment Exchange, Moradabad.
Fourteen
names
were
sent
by
the
Employment Exchange and one application
of the petitioner was received by hand in the
office straightway making a number of
applicants as fifteen and that interview was
held on 27.03.1982 and that the petitioner
was found most suitable as he was already
High School pass and had worked for
sometime on daily wage basis in the office
and he knew the work that had to be
performed in the office. The letter dated
22.05.1982 sent by the Managing Director of
the Corporation to the District Manager
giving permission for appointment of the
petitioner
as
Regular
Class-IV
Employee/Messenger in the pay scale of
Rs.165-250/-, had also asked the District
Manager to send the educational certificates
of the petitioner, his Caste Certificate, his
certificate regarding his Marital Status and
Certificate of Medical Fitness. A copy of
letter dated 22.05.1982 has been filed at page
13 of the counter affidavit.

10. It has been argued by the
learned
counsel
for
the
respondent
Corporation that in all the records of the
11 All. Subhramaniyam Vs. State of U.P. & Ors.
527
Corporation the petitioner's date of birth
has been mentioned clearly. Such records
are shown periodically to the employees
and they also sign on such papers
circulated. No where did the petitioner ever
challenge his date of birth as having been
wrongly mentioned as 04.09.1961 and the
reason for keeping quiet in the matter was
that had the petitioner claimed that he was
born on 06.11.1964 and not on 04.09.1961,
then he would have been ineligible to be
appointed as a Class-IV employee as the
minimum age required for such post is
completion of 18 years as per the Class-IV
Employees Service Rules of the State
Government, which the petitioner himself
has filed as Annexure-02 to the writ
petition. The petitioner had through out
concealed his actual date of birth and at the
fag end of his service tenure he had
submitted his High School Certificate
showing his date of birth as 06.11.1964.

11. Sri Shailendra, on the other
hand, has pointed out that it is not as if the
petitioner had submitted his High School
Certificate showing his date of birth as
06.11.1964 only after receipt of retirement
notice but the High School Certificate of the
petitioner was asked for from the District
Office by the Head Office at Lucknow
initially in 1982, and thereafter, also at the
time of his promotion as Class-III employee
in 1997. All along the employers had notice
of the petitioner having passed his High
School in 1982 and that his recorded date of
birth was 06.11.1964. In fact a verification of
his date of birth and other details as
mentioned
in
the
High
School
Pass
Certificate issued to the petitioner in March,
1991 was also got made by the Respondent
Corporation from the Principal of the
institution in which he had studied and also
from the U.P. Board of High School and
Intermediate Education.
12. It has been argued that only
because of oversight the petitioner did not try
and get corrected his date of birth in his
original service records which continued to
mention his date of birth as 04.09.1961.

13. Learned counsel for the
petitioner has placed reliance upon three
judgements of this Court namely:-

 (i) Civil Misc. Writ Petition No.
38194 of 2000, ' Raj Narain Malviya Vs. Zila
Panchayat, Sant Ravi Das Nagar & Another,
decided on 06.09.2005,
 (ii) Shiv Charan Vs. Executive
Officer, Nagar Palika Parishad, Lalitpur and
Another 2006 (6) ADJ 310,
 (iii) U.P. Power Corporation Ltd.
and Another Vs. Satya Narain (Driver) and
Another 2005 (2) ESC 1246 (Allahabad)
(DB),

14. It has been submitted on the basis
of two judgements of this Court rendered
by the Co-ordinate Benches and also one
by the Division Bench in the case of Sayta
Narain (Driver) (Supra) that just as an
employee cannot be permitted to get his
date of birth changed at the fag end of his
service, the same rule would apply to the
employer also and the date of birth could
not have been changed without due inquiry
and show cause notice to the petitioner.

15. Learned counsel for the petitioner
has referred to the observations made by
the Division Bench in Sayta Narain
(Driver) (Supra) where a similar argument
was raised by the appellant Uttar Pradesh
Power Corporation before the Division
Bench that on the basis of recorded date of
birth, the entry into service of the writ
petitioner was illegal as he would have
joined service at the age of 15 years only
whereas the minimum age requirement was
528 INDIAN LAW REPORTS ALLAHABAD SERIES
22 years and Indian Mejority Act required
that he be at least 18 years when he entered
service. It had also been argued that by the
impugned order passed by the Writ Court
directing the appellants to consider the writ
petitioner as having retired on 30.09.2004,
the respondent writ petitioner would be
getting the benefit of nine months of salary
without working. The appellants had cited
several judgements before the Division
Bench and the Division Bench had
observed that the Court ought to exercise
an equitable discretion in the matters and to
judge whether it is fit and proper case for
entering into the factual dispute. The Court
observed that if the facts are correctly
appreciated the law looks after itself. The
Court observed in the paragraphs 9 & 10 as
follows:-

"9. ........If the writ petitioner was
admitted into service below age, both
parties
were
equally
guilty;
no
misrepresentation of the writ petitioner is
on record. The service that was rendered
by the writ petitioner while still under age,
was paid for by the appellant, and no more.
The breach of rules on both sides cannot
make the writ petitioner get born earlier.

10. So far as the end period of the
service is concerned, and the direction for
payment of nine month's salary, even for
this time there is nothing on record to show
that the writ petitioner was not willing to
work; he was prevented from working. If he
was prevented from working unjustly, the
writ petitioner cannot be made to suffer for
the wrong of another....."

16.

Learned
counsel
for
the
respondent Corporation has placed reliance
upon the judgement rendered by the
Hon'ble Supreme Court in the Case of
Karnataka
Rural
Infrastructure
Development Limited Vs. T. P. Nataraja &
Others 2021 Legal Eagle (SC) 535 where
the High Court had allowed the writ
petition and set aside the order of the
dismissal of Suit by the Trial Court
rejecting the plaint of the original plaintiff
for declaring the date of birth of the
employee as 24.01.1961. The High Court
had directed the appellants to reconsider
the representation of the original writ
petitioner with respect to change of date of
birth.

17.

The
Supreme
Court
was
considering several civil appeals arising in
similar matters where the original dates of
birth recorded in the service books were
sought to be changed at the fag end of the
service tenure of the employees concerned.
The
appellant
Karnataka
Rural
Infrastructure Development Limited had
adopted the Karnataka State Servants
(Determination of Age) Act, 1974 by a
Resolution dated 17.05.1991, and therefore,
the Rule which provided for request for
change of date of birth in service record
had to be made within a period of three
years from the date of joining or within one
year from the date of commencement of the
Act of 1974 or from the date of its adoption
by the appellant which was held to be
mandatory.

18. The Supreme Court preferred
to several of its judgements passed in
earlier matters which were considered as
binding precedents and quoted from Home
Department Vs. R. Kirubakaran, 1994
Supp (1) SCC 155; State of M.P. Vs.
Premlal Shrivas, (2011) 9 SCC 664; Life
Insurance Corporation of India & Others
Vs. R. Basavaraju (2016) 15 SCC 781; U.
P. Madhyamik Shiksha Parishad Vs. Raj
Kumar Agnihotri [(2005) 11 SCC 465 and
State of Uttaranchal Vs. Pitamber Dutt
Semwal [(2005) 11 SCC 477 , to observe
11 All. Subhramaniyam Vs. State of U.P. & Ors.
529
that any direction for correction of date of
birth of a public servant by the Tribunal or
the High Court should be issued only after
great circumspection and careful inquiry as
such a direction for correction of date of
birth of public servant concerned has a
chain reaction, in as much as others waiting
for years, for their respective promotions
are affected in this process. The date of
birth as recorded in the service book at the
time of entry into government service
cannot be sought to be changed by a
Government Servant after lapse of a long
time
of
his
induction
into
service
particularly beyond the time fixed by his
employer, and at the fag end of the service
career.

19. However, this Court find from a
perusal of the judgement rendered by the
Supreme Court in the case of Karnataka
Rural Infrastructure Development Limited
(Supra) that the Supreme Court has
repeatedly reiterated that once the date of
birth is entered into the service record as
per the educational certificate, and accepted
by the employee, the same cannot be
changed. In the case of the petitioner no
request for change of date of birth in the
service records was made by the petitioner.
It was the respondents themselves who had
issued notice of retirement and thereafter,
the petitioner made a representation that his
High School Certificate was already
available with the Respondent Corporation
as he had submitted the same in 1997 at the
time of his promotion. The said High
School Certificate was also got verified by
the Corporation from the U. P. Board of
High School and Intermediate Education
and a favourable report was submitted on
29.06.2021 by the Board. As per the Rules
date of birth of any employee has to be first
determined on the basis of educational
certificates submitted by such employee. In
case no educational certificate is available
then the Chief Medical Superintendent's
Report regarding approximate age of the
employee shall be looked into to determine
his date of birth. In the case of the
petitioner although he had stated in his
application for appointment as Class-IV
employee in 1982 that he was born on
04.09.1961, (may be for the purpose of
getting the employment as he knew he
would be otherwise under age, if he
showed his date of birth as 06.11.1964),
that fact would not detract from the
principle as laid down by the Supreme
Court in its various judgements that date of
birth of an employee cannot be sought to be
changed at the fag end of his service career.

20. This Court has noticed that in
the writ petition there is a clear mention by
the petitioner in paragraph -07 that he had
submitted his educational certificate in 1991
after getting a copy of High School
Certificate by him on 21.03.1991. Only
thereafter he was promoted in 1991 as a
Class-III
employee.
However
such
a
statement in the writ petition has not been
denied in paragraph - 08 of the counter
affidavit of the respondents. It was the duty of
the respondents to correct the date of birth of
the petitioner, if it had been wrongly recorded
in his service record earlier, after he
submitted his High School Certificate to them
in 1991, and at the time of his promotion
1997 as a Class-III employee. It is not as if
the petitioner had passed High School after
he had joined service. In fact he had passed
High School in 1980 and he entered service
in May, 1982. So it cannot said that he
deliberately mentioned a wrong date of birth
at the time of filling up of his High School
Form for the examination.

21. This Court finds that just as
an employee cannot claim to get his date
530 INDIAN LAW REPORTS ALLAHABAD SERIES
of birth changed at the fag end of his
service tenure, the same principle would
apply to the Employers as well. The
employer cannot of its own ignore the
High School Certificate which had been
duly verified by the U.P. Board only on
the basis of incorrect date of birth
mentioned in the service records.

22. The notice of retirement
dated 28.05.2021 is set aside. The
petitioner having already retired on
30.09.2021 and having not worked for
more than a year cannot be given arrears
of salary on the principle of 'no work no
pay'. The petitioner shall be allowed to
work up to 30.11.2024 treating his date
of birth as 06.11.1964 giving him
continuity
of
service
and
annual
increments and pay fixation accordingly.
The appropriate order for joining of the
petitioner at his previous place of
posting shall be passed by the Managing
Director, the respondent no. 2 within
four weeks from the date of receipt of
copy of this Order.

23. The writ petition stands allowed.
----------
(2022) 11 ILRA 530
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal (D) No. 255 of 2022

Zuhair Bin Saghir ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Asit Srivastava, Akhilesh Kumar Kalra

Counsel for the Respondents:
C.S.C.

A. Service Law - Institution of Open
Vigilance
Enquiry
-
U.P.
Vigilance
Establishment Act, 1965 - No doubt, the
very
purpose
of
issuance
of
the
Government Orders is to safeguard the
interest of the government officers from
unnecessary harassment and curb the
tendency
of
making
frivolous
and
anonymous
complaints
against
the
government servants, however, so far as
the institution of open vigilance enquiry is
concerned,
the
procedure,
is
to
be
governed by the provisions contained in
the Vigilance Manual in light of the
provisions of U.P. Vigilance Establishment
Act, 1965. (Para 27)

Learned Single Judge after considering
the purpose and purport of the various
Government Orders has referred to certain
judgments of Hon'ble SC laying down the test
for determination of a particular provision being
mandatory or directory and has held the
Government Orders to be directory. (Para
26)

The facts make it clear that apart from the
preliminary enquiry conducted by the Senior
Superintendent of Police, Moradabad, the
Vigilance Establishment under the provisions of
Vigilance Manual and also in terms of the
provisions
contained
in
U.P.
Vigilance
Establishment Act, 1965 conducted an open
vigilance enquiry which was considered by the
State Government at the appropriate level and
accordingly a decision was taken to launch
criminal prosecution into the allegations against
the appellant-petitioner. (Para 23, 24)

Much emphasis has been laid by the appellantpetitioner on the GO dated 14.04.1981, which
provides that in case any complaint is received
against the employee or the officer, the enquiry
should be conducted by an officer at least two
rank higher than the officer against whom
complaint is made, however, while doing so it
should be kept in mind that the rank of the
enquiry officer should be below the rank of