# Union of India & Ors v. Nathan Singh

- **Citation:** (2023) 4 ILRA 1322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-02
- **Case number:** Writ-A No. 7701 of 2021
- **Bench:** Salil Kumar Rai, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-ors-v-nathan-singh-50037
- **Pages:** 6

## Headnote

Law-Order
of
Central
Administrative Tribunal-setting aside the
order retiring the petitioner on 31.03.2019
instead of 20.08.1961-challenged.

B. Change in date of birth was never
communicated
to
the
respondent-no
opportunity of hearing was granted to him
before that-both contentions accepted by
the petitioner in its counter affidavit filed
in Original Application before CAT-date of
birth of respondent corrected unilaterally
sans
intimation-Explanatory
Note
of
Fundamental Rules, 1956- date of birth of
Government Employee can be corrected
within five years of entering service- or
bonafide
mistake-both
defence
not
available to the petitioner in this caseprinciples of natural justice violatedimpugned order upheld-petition dismissed
. (Paras 5 to 11)

HELD:
Considering the above facts, it is the petitioners
who entered the date of birth of the respondent
in his service record as 20.08.1961, at the time
of entering the service of respondent and they
unilaterally corrected the same by mentioning
the date of birth of respondent as 12.03.1959
without giving any opportunity of hearing to
respondent or giving any intimation to him till

## Text

1322 INDIAN LAW REPORTS ALLAHABAD SERIES
The impugned orders dated 11.2.2022 and
8.8.2022 are quashed. I am not remanding
the matter as the charges leveled against the
petitioner are as vague as they can be and
subjecting the petitioner to give a reply to
such vague charges would be further
embarrassing the petitioner.

23. The writ petition is allowed. No
order as to costs. Consequential benefits
shall follow in favour of petitioner.
----------
(2023) 4 ILRA 1322
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.03.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-A No. 7701 of 2021

Union of India & Ors. ...Petitioners
Versus
Nathan Singh ...Respondent

Counsel for the Petitioners:
Sri Manoj Kumar Singh, Sr. Advocate Sri
Shashi Prakash Singh

Counsel for the Respondent:
Sri Ashish Kumar Srivastava, Sri Sunil

A.
Service
Law-Order
of
Central
Administrative Tribunal-setting aside the
order retiring the petitioner on 31.03.2019
instead of 20.08.1961-challenged.

B. Change in date of birth was never
communicated
to
the
respondent-no
opportunity of hearing was granted to him
before that-both contentions accepted by
the petitioner in its counter affidavit filed
in Original Application before CAT-date of
birth of respondent corrected unilaterally
sans
intimation-Explanatory
Note
of
Fundamental Rules, 1956- date of birth of
Government Employee can be corrected
within five years of entering service- or
bonafide
mistake-both
defence
not
available to the petitioner in this caseprinciples of natural justice violatedimpugned order upheld-petition dismissed
. (Paras 5 to 11)

HELD:
Considering the above facts, it is the petitioners
who entered the date of birth of the respondent
in his service record as 20.08.1961, at the time
of entering the service of respondent and they
unilaterally corrected the same by mentioning
the date of birth of respondent as 12.03.1959
without giving any opportunity of hearing to
respondent or giving any intimation to him till
2018. Therefore, original application filed by the
respondent before the Central Administrative
Tribunal, Allahabad was well within time and
duly
maintainable
and
because
of
nonintimation
or
non-granting
opportunity
of
hearing before correction of date of birth of the
respondent, there is a clear violation of Articles
14 and 16 of the Constitution of India,
therefore, the view taken by the Central
Administrative Tribunal, Allahabad of setting
aside the impugned order on the ground of
violation of principles of natural justice, as no
opportunity of hearing was given to the
respondent before making correction in his date
of birth and retiring him on 31.03.2019 on the
basis of amended date of birth, cannot be said
to be perverse or erroneous. (Para5)

Even otherwise, as per explanatory note of
Fundamental Rules, 1956 clearly provides that
date of birth of Government employee can be
changed only within five years of entering into
the service or it is clearly established that a
genuine bona fide mistake has occurred and in
the present case, correction was made by the
petitioners in the date of birth of the respondent
after 11 years of entering into service and the
same also cannot be said to be correction of
genuine bona fide mistake. (Para 6)

From the above decisions, it is established
position that application of principles of natural
justice in the decision-making process of the
administrative body having civil consequences
have been upheld. Therefore, rules of natural
4 All. Union of India & Ors. Vs. Nathan Singh
1323
justice
are
foundational
and
fundamental
concepts. (Para 10)

. In the present case unilateral change in date
of
birth
of
respondent
is
having
civil
consequences upon respondent because same
has
affected
the date
of
retirement
of
respondent, hence thereby causing prejudiced
to respondent for non-grant of opportunity of
hearing before making such correction in the
date of birth of respondent in service record.
Therefore, the order of Central Administrative
Tribunal dated 18.11.2020 is well considered
and absolutely correct and need no interference
by this Court in exercising of its extraordinary
jurisdiction under Article 226 of the Constitution
of India. (Para 11)

Petition dismissed. (E-14)

List of Cases cited:

1. St. of U.P. Vs Sudhir Kumar Singh & ors.
reported in AIR 2020 SC 5215

2. M/s. A.S. Motors Pvt. Ltd. Vs U.O.I. reported
in 2013 AIR SCW 3830

3.Uma Nath Pandey Vs St. of U.P. reported in
2009 AIR SCW 3200

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Manoj Kumar Singh,
learned counsel for the petitioners and no
one has appeared on behalf of the
respondent.

2. Present writ petition has been filed
on behalf of Union of India against the
order dated 18.11.2020 passed by the
Central Administrative Tribunal, Allahabad
Bench, Allahabad in Original Application
No.330/00278
of
2019
by
which
application of the respondent has been
allowed by the Central Administrative
Tribunal by setting aside the order dated
24.12.2018 retiring him from service on
31.03.2019 on the basis of consideration of
his date of birth as 12.03.1959, instead of
20.08.1961 by making correction on
27.01.1995.

3. The contention of learned counsel
for the petitioners is that in the service
record, date of birth of the respondent was
incorrectly
mentioned
as
20.08.1961
though as per medical certificate issued by
Chief Medical Officer, Allahabad dated
12.03.1984, age of the respondent was
about 25 years at the time of entering into
service in the year 1984 as majdur under
Garrison Engineer, Bamrauli. Therefore,
the same was corrected in the service
record of the respondent in 1995. It was
submitted by learned counsel for the
petitioners that the respondent has filed
time barred original application before
Central Administrative Tribunal, Allahabad
because as per Section 21 of the Central
Administrative Tribunal Act, 1985, the
limitation for filing the original application
before the Central Administrative Tribunal
is one year but, in the present case, the
respondent has filed original application
before the Central Administrative Tribunal,
Allahabad in 2019, though correction in his
date of birth was made in 1995. It was
further mentioned that correction in the
service record regarding the date of birth of
the respondent was well in the knowledge
of the respondent and he never made any
objection or representation against the same
to the competent authority. It was further
contended by the petitioners that under the
service rule, service book is required to be
shown to Government servant every year
and his signature should be obtained on the
same. It was also submitted by learned
counsel for the petitioners that it is the
responsibility
of
the
concerned
Government servant that his service should
have been duly verified by the competent
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
authority. It was also submitted by the
petitioners that on 30.10.2018, a seniority
list of Mason HS-II was circulated by
Headquarter CWE Allahabad mentioning
the date of birth of the respondent as
12.03.1959 on the basis of correction made
in the year 1995 and only thereafter, the
respondent made representation against the
correction
of
his
date
of
birth
to
Headquarter CWE Allahabad which was
duly considered and replied by letter dated
14.12.2018 stating that correct date of birth
of the respondent is 12.03.1959 but the
respondent has not filed any objection
against the letter dated 14.12.2018 of
HQCWE Allahabad nor have challenged
the same before any competent authority
but at the verge of retirement i.e. on
02.03.2019, the respondent has moved a
representation
for
restraining
the
superannuation
from
service
w.e.f.
31.03.2019
and
also
requested
for
necessary correction of his date of birth
mentioned in the service record. But that
was duly replied by the competent
authority vide letter dated 06.04.2019.
Thereafter, prior to his retirement, when the
order dated 24.12.2018 was issued by the
office of GE (AF Division) Gorakhpur, the
respondent had challenged the same by
filing original application before the
Central
Administrative
Tribunal,
Allahabad.

4. On perusal of record, it is found
that in paragraph nos.4.18 and 4.20 of
O.A., it was contended by respondent that
no information regarding the change of
date of birth of the respondent in 1995 was
ever communicated by his employer nor
any opportunity of hearing was afforded to
him before making any correction in his
date of birth and same was intimated to the
respondent by letter dated 14.12.2018. This
fact of non-communication of correction of
date of birth in the year 1995 and nongranting of opportunity, mentioned in
original application of the respondent was
not disputed but virtually admitted in
paragraph no.16 of the counter affidavit of
the
petitioners
before
Central
Administrative Tribunal. It was also
admitted in counter affidavit by the
petitioners that correction of date of birth in
the service record of the respondent was
intimated to him by letter dated 24.12.2018.

5. Considering the above facts, it is
the petitioners who entered the date of birth
of the respondent in his service record as
20.08.1961, at the time of entering the
service of respondent and they unilaterally
corrected the same by mentioning the date
of birth of respondent as 12.03.1959
without giving any opportunity of hearing
to respondent or giving any intimation to
him
till
2018.
Therefore,
original
application filed by the respondent before
the
Central
Administrative
Tribunal,
Allahabad was well within time and duly
maintainable and because of non-intimation
or non-granting opportunity of hearing
before correction of date of birth of the
respondent, there is a clear violation of
Articles 14 and 16 of the Constitution of
India, therefore, the view taken by the
Central Administrative Tribunal, Allahabad
of setting aside the impugned order on the
ground of violation of principles of natural
justice, as no opportunity of hearing was
given to the respondent before making
correction in his date of birth and retiring
him on 31.03.2019 on the basis of amended
date of birth, cannot be said to be perverse
or erroneous.

6. Even otherwise, as per explanatory
note of Fundamental Rules, 1956 clearly
provides that date of birth of Government
employee can be changed only within five
years of entering into the service or it is
4 All. Union of India & Ors. Vs. Nathan Singh
1325
clearly established that a genuine bona fide
mistake has occurred and in the present
case,
correction
was
made
by
the
petitioners in the date of birth of the
respondent after 11 years of entering into
service and the same also cannot be said to
be correction of genuine bona fide mistake.

7. The Apex Court has held in the
judgement titled as State of U.P. Vs.
Sudhir Kumar Singh and Ors reported
in AIR 2020 SC 5215 in paragraph
no.39, which reads as under:

"39. An analysis of the aforesaid
judgments thus reveals:

(1) Natural justice is a flexible
tool in the hands of the judiciary to reach
out in fit cases to remedy injustice. The
breach of the audi alteram partem rule
cannot by itself, without more, lead to the
conclusion
that
prejudice
is
thereby
caused.

(2) Where procedural and/or
substantive provisions of law embody the
principles
of
natural
justice,
their
infraction per se does not lead to
invalidity of the orders passed. Here
again, prejudice must be caused to the
litigant,
except
in
the
case
of
a
mandatory provision of law which is
conceived not only in individual interest,
but also in public interest.

(3) No prejudice is caused to the
person complaining of the breach of
natural justice where such person does
not dispute the case against him or it.
This can happen by reason of estoppel,
acquiescence, waiver and by way of nonchallenge or non-denial or admission of
facts, in cases in which the Court finds on
facts that no real prejudice can therefore
be said to have been caused to the person
complaining of the breach of natural
justice.

(4) In cases where facts can be
stated to be admitted or indisputable, and
only one conclusion is possible, the Court
does not pass futile orders of setting aside
or remand when there is, in fact, no
prejudice caused. This conclusion must be
drawn by the Court on an appraisal of the
facts of a case, and not by the authority
who denies natural justice to a person.

(5) The "prejudice" exception
must be more than a mere apprehension or
even a reasonable suspicion of a litigant. It
should exist as a matter of fact, or be based
upon a definite inference of likelihood of
prejudice flowing from the non-observance
of natural justice."

8. Paragraph no.8 of the judgement
titled as M/s. A.S. Motors Pvt. Ltd. Vs.
Union of India reported in 2013 AIR
SCW 3830, is quoted hereinbelow:

"8. It was argued on behalf of the
appellant that termination of the contract
between the parties was legally bad not
only because the principles of natural
justice requiring a fair hearing to the
appellant were not complied with but also
because there was no real basis for the
respondent-authority to hold that the
appellant had committed any breach of the
terms and conditions of the contract
warranting its termination. We find no
merit in either one of the contentions. The
reasons are not far to see. Rules of
natural justice, it is by now fairly well
settled, are not rigid, immutable or
embodied rules that may be capable of
being put in straitjacket nor have the
same been so evolved as to apply
universally to all kind of domestic
tribunals and enquiries. What the Courts
in essence look for in every case where
violation of the principles of natural
justice is alleged is whether the affected
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
party was given reasonable opportunity
to present its case and whether the
administrative authority had acted fairly,
impartially and reasonably. The doctrine
of audi alteram partem is thus aimed at
striking at arbitrariness and want of fair
play. Judicial pronouncements on the
subject have, therefore, recognised that
the demands of natural justice may be
different in different situations depending
upon not only the facts and circumstances
of each case but also on the powers and
composition of the Tribunal and the rules
and regulations under which it functions.
A Court examining a complaint based on
violation of rules of natural justice is
entitled to see whether the aggrieved
party had indeed suffered any prejudice
on account of such violation. To that
extent there has been a shift from the
earlier thought that even a technical
infringement of the rules is sufficient to
vitiate
the
action.
Judicial
pronouncements on the subject are a
legion. We may refer to only some of the
decisions on the subject which should in
our opinion suffice."

9. Paragraph no.15 of the judgement
titled as Uma Nath Pandey v. State of
U.P. reported in 2009 AIR SCW 3200,
is quoted hereinbelow:

"15. Concept of natural justice
has undergone a great deal of change in
recent years. Rules of natural justice are
not rules embodied always expressly in a
statute or in rules framed thereunder.
They may be implied from the nature of
the duty to be performed under a statute.
What particular rule of natural justice
should be implied and what its context
should be in a given case must depend to
a
great
extent
on
the
fact
and
circumstances of that case, the framework of the statute under which the
enquiry is held. The old distinction
between
a
judicial
act
and
an
administrative act has withered away.
Even an administrative order which
involves civil consequences must be
consistent with the rules of natural
justice. Expression `civil consequences'
encompasses infraction of not merely
property or personal rights but of civil
liberties, material deprivations, and nonpecuniary damages. In its wide umbrella
comes everything that affects a citizen in
his civil life."

10. From the above decisions, it is
established position that application of
principles of natural justice in the
decision
making
process
of
the
administrative
body
having
civil
consequences
have
been
upheld.
Therefore, rules of natural justice are
foundational
and
fundamental
concepts.

11. In the present case unilateral
change in date of birth of respondent is
having
civil
consequences
upon
respondent because same has affected the
date of retirement of respondent, hence
thereby causing prejudiced to respondent
for non-grant of opportunity of hearing
before making such correction in the date
of birth of respondent in service record.
Therefore,
the
order
of
Central
Administrative Tribunal dated 18.11.2020
is well considered and absolutely correct
and need no interference by this Court in
exercising
of
its
extraordinary
jurisdiction under Article 226 of the
Constitution of India.

12. Therefore, the present petition
fails and deserves to be dismissed.
----------
4 All. Jagat Narayan Vs. State of U.P. & Ors.
1327
(2023) 4 ILRA 1327
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

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

Writ-A No. 10247 of 2018

Jagat Narayan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Nand Kishor Mishra, Sri Vijay Gautam,
Sri Akhilesh Kumar, Sri L.P. Mishra, Sri
Ashok Kumar Rai, Ms. Shilpa Ahuja

Counsel for the Respondents:
C.S.C.,
Sri
Girijesh
Kumar
Tripathi,
Standing Counsel

A. Service Law- order of compulsory
retirement from service under challengeunder rule 56(c) of the U.P. financial
Handbook,
Volume
II
(Part
II-IV)-
arbitrariness- without sufficient material.

B. Non-adherence to the procedure of
consideration
by
the
Screening
Committee-procedure
duly
followed-
Absence of material to form opinion-held
to
be
incorrect-sufficient
material
available-principle of audi alteram partem
not applicable in cases of compulsory
retirement-scope of judicial review is
limited-impugned
order
legally
sustainable-no
arbitrariness
in
the
impugned order-complete service records
can
be
looked-to
form
subjective
satisfaction-plea
of
mala
fides
not
available-concerned officers not made
parties eo nomine-petition lacks meritimpugned
order
upheld-petition
dismissed. (Paras 17, 20 to 23, 25, 27, 29,
33, 35 and 42)
HELD:
Upon hearing learned Counsel for the parties
and perusing not only the record annexed to the
counter affidavit, but also the petitioner's
service-book, produced in original before the
Court, this Court finds that it is incorrect to say
that there is no material against the petitioner,
on the basis of which the Screening Committee,
or for that matter the Appointing Authority,
could not form their subjective satisfaction
under Fundamental Rule 56(c). (Para 20)

The sufficiency of material and the subjective
satisfaction of the Screening Committee or the
Appointing Authority, based on existing material,
cannot be interfered with by the Court, if there
is relevant material on record. It is for the
Screening
Committee
and
the
Appointing
Authority, invested with the power under
Fundamental Rule 56(c) to exercise it, based on
their subjective satisfaction. It can, of course,
still be interfered with, if shown to be the result
of mala fides or the product of arbitrariness.
(Para 21)

The ground here urged was total absence of
adverse
material
against
the
petitioner,
inasmuch as that is one ground on which an
order of compulsory retirement may be judicially
reviewed. But, the record here shows that
material adverse to the petitioner and very
tangible is available on record. Therefore, there
is no force in the petitioner's submission on this
count. (Para 27)

The submission of the learned Counsel for the
petitioner, therefore, that the impugned order is
vitiated, because no notice was issued to the
petitioner or opportunity afforded to submit his
reply before the impugned order was passed, is
misconceived and, accordingly, rejected. (Para
30)

Upon hearing learned Counsel for the parties,
this Court may say that arbitrariness for all that
it would mean in the context of exercise of
power of compulsory retirement is perversity of
opinion. If the Screening Committee or the
Appointing Authority or the Government, in
reaching their conclusion to retire an employee
compulsorily under Fundamental Rule 56(c),
take a view of the material on record, which no
reasonable person would subscribe to on the
basis of that material, the order would be
arbitrary. This was precisely the import of the
word 'arbitrary' as enunciated in Baikuntha Nath