Mahadev Prasad vs Jaipur Vidhyut Vitran Nigam Ltd. and Others

Alok Sharma

This petition has been filed challenging the order dated 30-12-2010, passed by the Personnel Officer (Tech. Estt.), Jaipur Vidhyut Vitran Nigam Ltd. (herein after ''the Nigam'') whereby a decision was taken that in view of initial recording of petitioner''s date of birth in his service book as 1-3-1949, he was to superannuate on 28-2-2009 on attaining the age of 60 years. It was also recorded that the petitioner would henceforth retired effective 28-2-2009 and the excess amount paid to him as salary upto December, 2010 be recovered. A challenge has also been made to the consequential order dated 31-12-2010 passed by the Assistant Engineer (O&M) JVVNL Shahpura Jaipur, where under the petitioner was retired effective 28-2-2009 on attaining age of 60 years with reference to his initially recorded date of birth as 1-3-1949. The petitioner thereupon was entitled to retiral benefits but the excess amount paid as salary was to be recovered. The facts of the case are that the petitioner was initially appointed on the post of Helper on Muster roll as daily rated employee on 1-6-1971. Thereafter the petitioner was regularised on the post of Helper-II on 1-4-1974, and was subsequently promoted first to the post of Helper-I and then on the post of Line Man-II on 14-7-2010. Vide letter dated 13-1-2010, the Superintending Engineer (JPDC) of the Nigam required an in house clarification with regard to the discrepancy in the petitioner''s date of birth in his service book, inasmuch as while it was first recorded in service book as 1-3-1949, subsequently it was altered as 1-9-1952. Clarification was sought as to what was the material available for alteration of petitioner''s date of birth in his service book from as 1-3-1949 to 1-9-1952. Following the internal inquiry within the office of the Nigam, show cause notice dated 9-6-2010 was issued to the petitioner to clarify as to why he should not be retired in view of his having attained the age of superannuation on 28-2-2009 as per the date of birth first recorded with the respondent Nigam. The petitioner filed a reply to the show cause notice and submitted that as per Ration-card prepared in 2006, his age was 55 years and he was not due to retire till attaining the age of 60 years. It was submitted that the petitioner''s date of birth was in fact 1-9-1952 as indicated in his PAN card as issued by the income tax Department. The petitioner stated on the askance of the Nigam, he has appeared before the Medical Board for ascertainment of his age, and the Medical Board vide its report dated 11-10-2010 has ascertained his age as 58 years on that date. It was submitted that petitioner''s actual date of birth was 1-9-1952 and not 1-3-1949. The reply of the petitioner to the show cause notice rejected and the impugned orders passed.

The petitioner in this petition has reiterated the above facts and submitted that a wrong decision has been taken by the respondent Nigam to treat the petitioner''s date of birth as 1-3-1949 instead of 1-9-1952 and to retire him on 28-2-2009, as also to recover the amount of salary paid to the petitioner after 28-2-2009 upto 31-12-2010.

In reply to the writ petition the respondent Nigam has submitted that as per the information furnished by the petitioner in the first instance his date of birth in the service book was recorded as 1-3-1949, but subsequently was unauthorisedly changed to 1-9-1952. It has been submitted that the fact of unauthorised alteration of date of birth in the service book came to the knowledge of the Nigam in the year 2010 when the service record of all the Assistant Grade-II was called for promotion on the post of Assistant Grade-I Lineman. On internal inquiry by the department it was found that in the first instance petitioner''s date of birth in the service book was recorded as 1-3-1949, and was subsequently altered as 1-9-1952 purportedly on the basis of Astrological chart (Janma Patri), which evidence was not of any probative worth.

It has been submitted that the Chief Personnel Officer of the Nigam vide order dated 24-4-2007 has noted the factum of rampant unauthorised alteration of dates of birth of employees'' in their service books and to stern the tide of such activity ordered that without the approval of the Managing Director of the Nigam, no alteration of date of birth in service book in respect of any employee would be permissible. It is submitted that under the said order a direction was issued to all Heads of the Department of the Nigam to follow the procedure set out to ensure that any alteration of date of birth recorded in service book would only be on authentic material of probative worth, and the recommendation of the Head of the Department thereupon would have to be approved by the Managing Director of the Nigam before the change is officially recorded.

It is submitted that in the aforesaid circumstances the alteration of the petitioner''s date of birth in service book from as 1-3-1949 to 1-9-1952 was ex-facie unauthorised for no credence could be given to a subsequent alteration on an astrological chart (Janma Patri).

Heard. Perused the petition. Considered.

Learned counsel for the petitioner has submitted that petitioner''s correct date of birth was 1-9-1952 and it was first wrongly recorded in service book as 1-3-1949. He submits that on the day of the opening service book itself on the basis of astrological chart (Janma Patri) the date of birth was rectified to be 1-9-1952. He submits the genuineness of petitioner''s date of birth to be 1-9-1952 would be evident from the GPF Form which was prepared at the time of entry in service of the petitioner also recording the date of birth as 1-9-1952. It is submitted that even the Medical Board, which conducted the medical examination of the petitioner to ascertain his age as per its certificate dated 11-10-2010 found the petitioner to be of 58 years. Yet the Nigam overlooking all the aforesaid facts, has passed the impugned order of superannuating the petitioner on 28-2-2009 treating his date of birth as 1-3-1949 and consequent recovery of the amount of salary paid to the petitioner after 28-2-2009.

Per contra, learned counsel for respondent Nigam would submit that the case set up by the petitioner with regard to error at the time of opening of the service book is absolutely specious and without foundation. He submits that if at all the "Janmapatri" was available at the time of the opening of the petitioner''s service book no question of 1-3-1949 being entered as the date of birth would have arisen. He submits that it is thus evident that the purported "Janmapatri" was invoked subsequently to make an unauthorised alteration. It is submitted that the petitioner''s date of birth initially recorded in service book as 1-3-1949 was illegally corrected as 1-9-1952 without any good reason-an astrological chart available on the mere asking as is universally known notwithstanding. It is further submitted that the petitioner having worked beyond the date of his superannuation 28-2-2009 as per his date of birth initially recorded in service book as 1-3-1949, the Nigam was entitled to recover the amount of salary wrongly paid to the petitioner. It is submitted that the petitioner has not filed along with the writ petition the GPF form on which he has claimed his date of birth to be 1-9-1952. It is further submitted that the report of Medical Board with regard to age of petitioner could only be an approximation and not vested with arithmetical exactitude to overcome the initially recorded date of birth.

The question before this court which arises is as to what the date of birth of the petitioner is and what manner could it be determined in law. A bare look at the service book, extract whereof has been filed with the writ petition, indicates that petitioner''s date of birth in the first instance was recorded 1-3-1949. No doubt the service book also records the entry of 1-9-1952. There is no material on the face of service book to indicate as to on which date the alteration was made and the subsequent date of birth inserted. It is important to note that even subsequent to entry of altered date of birth 1-9-1952, the earlier date of birth 1-3-1949 continued to remain in the service book and it has not been scored out.

In view of the fact that the service book of the petitioner first indicated his date of birth as 1-3-1949, in my considered opinion there was no ground and material of probative worth to alter the same. There is no reason or material before this court to accept the contention of the counsel for the petitioner that the said correction was done at the time of opening of service book itself. This was the petitioner''s burden which he has failed to discharge. The petitioner has not placed on record the Form of GPF in support of his contention that it indicated his correct date of birth as claimed by him to be 1-9-1952. Aside of this, there is no material before this court to hold that the GPF form was filed and submitted on the date of entry of date of birth was made in the first instance in his service book. The entry as first made in the service book is sacrosanct, which cannot be altered without good cause or without material of probative worth which inspires confidence. Similarly the report of Medical Board indicating the age of petitioner as 58 years on 11-10-2010 could not be accepted as conclusive as the medical determination of age is only an approximation, and not mathematical certainity.

In my considered opinion, the petitioner''s date of birth first entered in his service book as 1-3-1949, could not have been altered without recording good reasons which from the facts of case appear to be absent. Even date on which the correction is made has not been recorded. I thus find no cause to allow the petition or to treat the petitioner''s date of birth as 1-9-1952.

However, I am of the view that as the petitioner has indeed worked for the period from 1-3-2009 to 31-12-2010, salary has been paid to him was in lieu of the work done. Therefore, the respondent Nigam is not entitled to recover the amount of salary paid to the petitioner during 1-3-2009 and 31-12-2010.

Consequently, even while upholding the impugned order superannuating the petitioner effective 28-2-2009 treating his date of birth to be 1-3-1949 as recorded in the first instance in his service book, I would direct that the impugned order in so far as it seeks to recover the amount of salary paid to petitioner from 1-3-2009 to 31-12-2010 is quashed and set aside. The writ petition stands disposed of accordingly.