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1999 (2) JLJ 19
S.P. Srivastava and Fakhruddin, JJ.
S.P. Sharma v. State of M.P. and others
WP. No. 1366 of 1997; against the order of State Administrative Tribunal,
M.P.; Decided on 19.3.1999.
(2) Age -- High School certificate duly filed in original at the time of appointment -- already verified from the Board -- found genuine as to date of birth being 6.8.1939 -- such date of birth cannot be disputed. [Para 10]
(3) Civil Servant -- High School certificate duly found genuine and acted upon by the State Government -- appointment given on that basis -- age written in the certificate duly treated to be correct -- no dispute as to genuiness raised before Tribunal -- such dispute cannot be decided. [Paras 12 & 15]
(4) Evidence Act, 1872 -- S. 115 -- estoppel -- previous order passed in favour of civil servant not challenged -- correctness thereof cannot be challenged later on. [Para 16]
(5) Civil Servant -- no gradation list served on civil servant -- entries therein admitted to be wrong even by concerned authorities -- civil servant is not bound by such gradation list. [Para 17]
(6) Financial Code (M.P.) -- para 84 -- presumption about entry in respect of date of birth -- available when it is proved to have been made in the manner prescribed -- entry in duplicate service book -- can have no such presumption. [Para 20]
(7) Civil Servant -- change of date of birth -- application for the purpose should be made within five years of enforcement of the rules -- no such rules enforced -- limitation of 5 years has no applications. (1994)6 SCC 302 distinguished. [Paras 22 & 23]
(8) Evidence Act, 1872 -- Ss. 18 and 31 -- admissions not explained -- are binding. [Para 23]
(9) Civil Servant -- entry in respect of age in the service record -- should be on the basis of school record -- original service book not available -- entry as to age -- entry of age in High School Certificate may be presumed to be entry is service book. (1997)5 SCC 181 and (1994)6 SCC 302 distinguished. [Para 25]
(10) Civil Servant -- date of birth -- previous direction of Tribunal about consideration of question of age reached finality -- later on no dispute can be raised regarding delay, etc. -- proof of age already in possession of Government since the date of appointment -- no question of delay arises. AIR 1993 SC 2467 distinguished. [Para 27]
(11) Documents -- original in possession of Government -- ordered to be produced -- order not complied with -- copies filed by petitioner-appellant may be presumed to be correct. [Para 28]
(12) Constitution of India -- Art. 227 -- order of State Administrative Tribunal based on entirely erroneous assumptions -- binding admissions ignored -- findings vitiated in law -- High Court would interfere in such order. [Paras 30 & 31]
¼1½ flfoy lsod && 29-3-1957 dks fu;qDr && 2 ekl 8 fnu ls vizkIro; ik;k x;k && lsok fu;e 18 o"kZ dh vk;q rd f‘kfFky fd, x, && mldk tUe fnukad 6-8-1936 ugha ekuk tk ldrk] ugha rks f‘kfFkyrk dh vko‘;drk gh ugha FkhA ¿ iSjk 9
¼2½ vk;q && fu;qfDr ds le; gkbLdwy izek.ki= ewyr% lE;d~ :i ls Qkby fd;k x;k && eaMy }kjk igys&gh lR;kfir && tUe fnukad 6-8-1939 gksus ds ckjs esa vlyh ik;k x;k && ,slk tUe fnukad fookfnr ugha fd;k tk ldrkA ¿ iSjk 10
¼3½ flfoy lsod && gkbLdwy izek.ki= lE;d~ :i ls vlyh ik;k x;k vkSj jkT; ljdkj }kjk ml ij ls dkjZokbZ gqbZ && fu;qfDr ml vk/kkj ij dh xbZ && izek.ki= esa fy[kk tUe fnukad lE;d~ :i ls lgh ekuk x;k && vlyh;r ds ckjs esa dksbZ fookn vf/kdj.k ds le{k mBk;k ugha x;k && ,sls fookn dk fofu‘p; ugha fd;k tk ldrkA ¿ iSjk 12 ,oa 15
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 115 && foca/k && flfoy lsod ds i{k esa dkfjr iwfoZd vkns‘k ij vk{ksi ugha && ckj esa mldh ‘kq)rk ij vk{ksi ugha fd;k tk ldrkA ¿ iSjk 16
¼5½ flfoy lsod && inØe lwph dh flfoy lsod ij rkehy ugha && mldh izfof"V;k¡ xyr gksuk lacaf/kr izkf/kdkfj;ksa }kjk Hkh Lohdkj && flfoy lsok ,slh inØe lwph ls vkc) ugha gSA ¿ iSjk 17
¼6½ foÙk lafgrk ¼e-iz-½ && iSjk 84 && tUe fnukad ds ckjs esa izfof"V ds ckcr mi/kkj.kk && miyC/k gS ;fn ;g fofgr jhfr esa dh xbZ gksuk lkfcr dh tkrh gS && vuqfyfi lsok iqfLrdk esa izfof"V && ,slh mi/kkj.kk ugha gks ldrhA ¿ iSjk 20
¼7½ flfoy lsod && tUe fnukad esa ifjorZu && bl iz;kstu ds fy, vkosnu fu;e izo`Ùk gksus ds ik¡p o"kZ ds Hkhrj fd;k tkuk pkfg, && ,sls dksbZ fu;e izo`Ùk ugha && 5 o"kZ dh ifjlhek ykxw ugha gksxhA ¼1994½6 ,l lh lh 302 izHksfnrA ¿ iSjk 22 ,oa 23
¼8½ lk{; vf/kfu;e] 1872 && /kkjk 18 rFkk 31 && Lohd`fr;k¡ Li"Vhd`r ugha && vkc)dj gSaA ¿ iSjk 23
¼9½ flfoy lsod && lsok vfHkys[k ds vk;q ds ckjs esa izfof"V && fo|ky; vfHkys[k ds vk/kkj ij gksuk pkfg, && ewy lsok iqfLrdk miyC/k ugha && vk;q ds ckjs esa izfof"V && gkbLdwy izek.ki= esa vk;q dh izfof"V dh] lsok iqfLrdk esa izfof"V gksus dh mi/kkj.kk dh tk ldrh gSA ¼1997½5 ,l lh lh 181 rFkk ¼1994½6 ,l lh lh 302 izHksfnrA ¿ iSjk 25
¼10½ flfoy lsod && tUe fnukad && vk;q ds iz‘u ij fopkj dk vf/kdj.k dk iwfoZd funs‘k vafre gks x;k && ckn esa foyac vkfn ds ckjs esa fookn ugha fd;k tk ldrk && vk;q dk lcwr] fu;qfDr ds fnukad ls ljdkj ds dCts esa && foyac dk iz‘u mn~Hkwr ugha gksrkA , vkb vkj 1993 ,l lh 2647 izHksfnrA ¿ iSjk 27
¼11½ nLrkost && ewy] ljdkj ds dCts esa && izLrqr fd, tkus ds fy, vkfn"V && vknsk dk vuqikyu ugha && ;kph&vihykFkhZ }kjk izLrqr izfrfyfi ‘kq) gksus dh mi/kkj.kk dh tk,xhA ¿ iSjk 28
¼12½ Hkkjr dk lafo/kku && vuq- 227 && jkT; iz‘kklfud vf/kdj.k dk vkns‘k iw.kZr% xyr /kkj.kkvksa ij vk/kkfjr && vkc)dj Lohd`fr dh mis{kk && fu"d"kZ fof/kr% nks"kiw.kZ && ,sls vkns‘k esa mPp U;k;ky; gLr{ksi djsxkA ¿ iSjk 30 ,oa 31
Srivastava, J. –
1. Feeling aggrieved by the order passed by the Madhya Pradesh State Administrative Tribunal, Bench Gwalior, dismissing his application seeking quashing of the order dated 31.8.1994, rejecting his claim for continuance in service taking his date of birth to be 6.8.1939, the petitioner has now approached this Court seeking redress praying for the reversal of the impugned order.
2. We have heard the learned counsel for the petitioner as well as the learned Government Advocate representing the respondents-authorities and have carefully perused the record.
3. The brief facts shorn of details and necessary for the disposal of this writ petition lie in a narrow compass. The petitioner was appointed on the post of sub-overseer on 29.5.1957. It is not in dispute that the original service-book which had been prepared when the petitioner had been taken in service is lost. A duplicate service-book was therefore prepared. In this service-book the date of birth of the petitioner as recorded is not decipherable. When the petitioner came to know that the department intended to retire him from service taking into consideration the date of his birth to be 6.8.1936, he made a representation asserting that his date of birth was 6.8.1939 and he could not be retired prematurely. The concerned Authority after an inquiry into the matter found his case to be genuine and made recommendations in his favour seeking permission from the State Government to record the date of birth in the service-book so as to indicate it to be 6.8.1939. When nothing was done on the recommendations of the Departmental Authorities, which had been made in favour of the petitioner, and no orders were passed, the petitioner approached the Administrative Tribunal. The Tribunal, after hearing the parties disposed of the case with a direction to the competent authority to pass an order on the representation of the petitioner in the light of the recommendations made by the Chief Engineer within a period of 45 days from the date of the communication of the said order.
4. A perusal of the order passed by the M.P. State Administrative Tribunal dated 30.8.1997 indicates that the Tribunal had made it clear that the Chief Engineer had made a recommendation in favour of the petitioner and had come to the conclusion that his correct date of birth was 6.8.1939. The State Government was required under the aforesaid direction issued by the Administrative Tribunal to pass appropriate orders on the representation of the petitioner in the light of the aforesaid recommendations.
5. Pursuant to the directions issued by the Administrative Tribunal the State Government passed an order dated 13th July 1995 whereunder the representation of the petitioner was rejected declining to treat the date of birth of the petitioner to be 6.8.1939 instead of 6.8.1936. A true copy of the aforesaid order has been filed as annexure P-12. A perusal of the aforesaid order indicates that the main ground on which the representation of the petitioner had been rejected inspite of the recommendations of the Chief Engineer was that in case his date of birth was accepted to be 6.8.1939 he would have been clearly ineligible for being taken in service as he would have been a minor at that time. The State Government, apart from the above had also observed that there had been interpolation in the service-book so as to make the entry relating to the date of birth undecipherable with malafide intention to seek an extension of service. However, holding that since the petitioner would have been a minor and on that account ineligible for being appointed on the Government post and taken into service there could be no justification for holding his date of birth to be 6.8.1939.
6. The Tribunal while affirming the aforesaid order and endorsing the findings returned against the petitioner went further and held that a perusal of the report submitted by the Board of High School indicated that the High School Certificate wh
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