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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 480 OF 2013 (Arising out of SLP(C) No.  35941 of 2011)

Lakshmibai National Institute  of Physical Education and another      …Appellants

versus

Shant Kumar Agrawal              …Respondent

with  

CIVIL APPEAL NO. 481 OF 2013 (Arising out of SLP(C) No.  29901 of 2011)

J U D G M E N T

G. S. Singhvi, J.

1. The question which arises for consideration in these appeals filed  

against judgment and order dated 6.7.2011 passed by the Division Bench  

of the Madhya Pradesh High Court in Writ Appeal Nos. 194 and 195 of  

2009 is whether the respondent, who got his date of birth recorded in the  

service book on the basis of the judgment and decree dated 13.10.1976  

passed by IIIrd Additional Civil Judge, Class II, Gwalior (for short, ‘the  

trial Court’) by suppressing the fact that the same had been reversed by  

Additional District Judge, Gwalior (lower appellate Court), can rely upon  

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the said date of birth for the purpose of continuing in service beyond the  

age of superannuation.  

2. The  respondent  passed  Higher  Secondary  School  Certificate  

Examination conducted by the Board of  Secondary Education,  Madhya  

Pradesh (for short, ‘the Board’). In the certificate issued by the Board on  

17.6.1963, the respondent’s date of birth was recorded as 20.2.1942.  

3. The respondent was appointed as Lower Division Clerk in the office  

of  Commissioner,  Settlement  and  Director  of  Land  Records,  Madhya  

Pradesh on 27.5.1965. He worked in that office till 3.8.1966.   After about  

five years, he made an application for change of his date of birth from  

20.2.1942 to 15.1.1948, which was rejected by the competent  authority  

vide order dated 19.11.1971.  

4. The respondent challenged the aforesaid decision in O.S. No.165-

A/1974 and prayed that his correct date of birth be declared as 15.1.1948  

and the Board be directed to incorporate the same in the Higher Secondary  

School Certificate.  In the written statements filed on behalf of the State of  

Madhya Pradesh and the Board, it was pleaded that the date of birth shown  

in the certificate issued in 1963 was correct and the suit is liable to be  

dismissed as barred by time because the same was filed much after expiry  

of the period of limitation.  

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5. The  trial  Court  did  not  deal  with  the  issue  of  limitation  with  

requisite seriousness and decreed the suit vide judgment dated 13.10.1976  

by  relying  upon  the  date  entered  in  the  birth  certificate  issued  by  

Municipal Corporation, Gwalior. The trial Court held that the correct date  

of birth of the respondent is 15.1.1948 and he is entitled to get the same  

entered in the Higher Secondary School Certificate.

6. The State and the Board challenged the judgment and decree of the  

trial Court in Civil Appeal No.7-A/1977.  The same was allowed by the  

lower appellate Court vide judgment dated 27.7.1977 on the ground that  

the suit filed by the respondent in 1974 was barred by time. The second  

appeal  and  the  special  leave  petition  filed  by  the  respondent  were  

dismissed by the High Court and this Court respectively vide orders dated  

3.4.2006  and  31.7.2006.   The  application  filed  by  the  respondent  for  

review of order dated 31.7.2006 was also dismissed by this Court.

7. After reversal of the decree passed in his favour by the trial Court,  

the  respondent  was  appointed  as  Personal  Assistant  in  the  services  of  

appellant  No.1.  At  the  time  of  preparation  of  the  service  book,  the  

respondent produced copy of the judgment of the trial Court and got his  

date of birth recorded as 15.1.1948. After some time, the Registrar of the  

appellants  called  upon  the  respondent  to  produce  the  original  Higher  

Secondary School Certificate. However, instead of doing so the respondent  

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submitted  reply  dated  30.7.1999  and  claimed  that  the  date  of  birth  

recorded in the service book, i.e., 15.1.1948 is the correct date of birth.  

The management  of  appellant  No.1 rejected the respondent’s  reply and  

retired him from service vide order dated 28.2.2002.

8. In the meanwhile, the respondent filed Writ Petition No.1822/2001  

for issue of a mandamus to the appellants to promote him to the post of  

Deputy  Director  and refund Rs.47,411/-.   After  passing  of  order  dated  

28.2.2002,  the  respondent  amended  the  writ  petition  and  prayed  for  

quashing of his retirement. He pleaded that the date of birth recorded in the  

service book, i.e., 15.1.1948 was conclusive and he could not have been  

retired by assuming it to be 20.2.1942.  He also pleaded that the action  

taken  by  the  management  is  liable  to  be  declared  as  vitiated  due  to  

violation of the rules of natural justice because before retiring him on the  

basis of an assumed date of birth no notice or opportunity of hearing was  

given  to  him.  In  support  of  his  case,  the  respondent  produced  birth  

certificate dated 25.2.1970 and duplicate certificate issued by the Board  

showing his date of birth as 15.1.1948.   

9. The appellants contested the writ petition and pleaded for dismissal  

thereof by asserting that at the time of preparation of the service book, the  

respondent got his date of birth recorded on the basis of the judgment and  

decree of the trial Court without disclosing that the same had already been  

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reversed by the lower appellate  Court  and despite  two communications  

sent by the Registrar he did not produce the original Higher Secondary  

School Certificate and the Mark-sheet.

10. After  considering the rival  pleadings  and documents,  the  learned  

Single Judge allowed the writ petition and quashed the retirement of the  

respondent by relying upon Note 5 appearing below Fundamental Rule 56  

and the judgment of the trial Court in O.S.No.165-A/1974. The learned  

Judge referred to the entries made in the Register of Birth and Death and  

held that the management of the appellants was not justified in asking the  

respondent to produce Higher Secondary Certificate.  He further held that  

the recorded date of birth of the respondent could not have been changed  

without giving him opportunity of hearing.  

11. The review application filed by the appellants was dismissed by the  

learned Single Judge by recording the following observations:

“This Court  had interfered in the matter  as  there was non- observance of FR 56 and Note 5 with regard to non-grant of  opportunity in the matter of changing the date of birth in the  service book of the petitioner (S.K. Agrawal) so also action  taken by the Registrar with regard to change of the date of  birth  as  the  petitioner  was  appointed  by  the  Board  of  Directors, this Court had only observed in paragraph 11 that  action taken for changing the date of birth without recording  reasons  is  not  correct.  Under  such  circumstances,  the  respondents  were only required to take action after  hearing  the petitioner and they were at liberty to proceed in the matter  after giving due opportunity of hearing to the petitioner and  under the provisions of law.  If,  subsequently,  certain facts  

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have come on record,  the applicant  should give reasonable  opportunity to the employee and then take action.  For this,  review  or  recall  of  the  order  passed  by  this  Court  is  not  necessary.

This  Court  having  decided  the  petition  in  question  on  the  basis  of  other  grounds and not  merely  on the  basis  of  the  judgment passed by the learned trial Court, no case is made  out for review or recall of the order.  However, it is clarified  that keeping in view the observations made by this Court in  paragraph  11  of  the  order  dated  8.7.2003  passed  in  W.P.  No.1822  of  2001,  the  employer/applicant  shall  take  action  after complying with the requirements of law.”

(emphasis supplied)

12. During  the  pendency  of  Writ  Petition  No.1822/2001,  the  

management suspended the respondent and issued Memo dated 6.9.2005  

for  holding an  inquiry  on the  charge  of  producing fake documents  for  

getting his date of birth recorded as 15.1.1948. However, after dismissal of  

the review application,  Memo dated 6.9.2005 was withdrawn and fresh  

chargesheet dated 5.10.2005 was issued for holding an inquiry under Rule  

14  of  the  Central  Civil  Services  (Classification,  Control  and  Appeal)  

Rules, 1965 (for short, ‘the CCS Rules’) on the following charges:

“ARTICLE -1

Shri  S.K.  Agrawal,  Assistant  Director  of  LNIPE  (Deemed  University),  Gwalior  has  hidden  the  order  passed by the District Court in Appeal on 27th July,  1977  from the Institute and thereby got entry in the Institute in a fraudulent  manner.

He has thus acted in a manner unbecoming of an  officer of LNIPE, Gwalior thereby contravening Rule 3  (1) (iii) of the CCS (Conduct) Rules, 1964.

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ARTICLE - II

Shri  S.K.  Agrawal,  Assistant  Director  of  LNIPE  (Deemed University), Gwalior has made false declaration  about his date of birth before the Institute and submitted  judgment and decree passed by the Civil Court on 13th Oct.  1976 as confirmatory documentary evidence, which was already quashed  as on the date of his entry in service.

He has thus acted in a manner unbecoming of an  officer of LNIPE, Gwalior thereby contravening Rule 3  (1) (iii) of the CCS (Conduct) Rules, 1964.

ARTICLE  - I I I   Shri Agrawal's appointment in the Institute is viti-

ated as he was over-age at the time of the entry. Thus, he  has caused huge pecuniary losses to the Institute by way  of entire pay and allowances paid to him during the pe- riod of his service with the Institute.

He has thus acted in a manner unbecoming of an  officer of LNIPE, Gwalior thereby contravening Rule 3  (1) (iii) of the CCS (Conduct) Rules, 1964.

ARTICLE - IV

Shri  S.K.  Agrawal,  Assistant  Director  of  LNIPE  (Deemed  University),  Gwalior  had  hidden  vital  information of  order  passed  in  appeal  and went  to  the  Hon'ble  High  Court  against  retirement  order  of  the  Institute on false affidavit.

He has thus acted in a manner unbecoming of an  officer  of  LNIPE,  Gwalior  thereby  contravening  Rule  3(1)(iii) of the CCS (Conduct) Rules, 1964.”

13. The  respondent  filed  reply  dated  11.10.2005  and  denied  the  

allegations leveled against him. He also filed Writ Petition No.108/2006  

for  quashing  the  order  of  suspension  and the inquiry  proceedings.  The  

High Court entertained the writ petition and directed that final order shall  

not  be  passed  in  the  disciplinary  proceedings.  Soon  thereafter,  the  

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management passed Resolution dated 12.1.2006 and retired the respondent  

with  retrospective  effect  from  28.2.2002  by  treating  20.2.1942  as  his  

correct date of birth. This was followed by an order for recovery of the  

salary and allowances paid to the respondent from 1.3.2002.

14. The  respondent  challenged  Resolution  dated  12.1.2006  and  the  

order of recovery in Writ Petition No. 1991/2006. He pleaded that in view  

of the orders passed by the High Court in Writ Petition No.1822/2001 and  

MCC No. 543/2005 the management did not have the jurisdiction to retire  

him from service by treating his date of birth as 20.2.1942. The appellants  

defended their action by stating that the respondent had been retired after  

giving him opportunity of hearing.

15. By an order dated 11.9.2008, the learned Single Judge dismissed  

both the writ petitions but quashed the order passed by the management  

for recovery of the salary and allowances paid to the respondent for the  

period during which he actually discharged his duties.  The learned Judge  

rejected the respondent’s plea that he did not know about the judgment of  

the lower appellate Court which had set aside the decree passed by the trial  

Court  by observing that  the  appeal  had been decided after  hearing the  

parties.  The  learned  Judge  further  observed  that  in  view  of  the  order  

passed in MCC No.543/2005, appellant No.1 was entitled to pass fresh  

order after complying with the rules of natural justice and precisely this  

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was done by the management.  

16. The respondent sought review of the order passed by the learned  

Single Judge but could not convince him to accept his plea that the date of  

birth recorded in the service book was conclusive and he could not have  

been retired by assuming his date of birth to be 20.02.1942.

17. Writ Appeal No.195/2009 filed by the respondent questioning the  

dismissal  of  Writ  Petition  No.1991/2006  was  allowed  by  the  Division  

Bench of the High Court, which held that reversal by the lower appellate  

Court  of  the  trial  Court’s  judgment  in  O.S.  No.165-A/1974  was  

inconsequential  and  the  management  of  the  appellants  could  not  have  

retired the respondent ignoring the date of birth recorded in the service  

book, i.e., 15.1.1948. The Division Bench further held that the date of birth  

recorded in the service book of the respondent could not have been altered  

on the basis  of  entry made in the mark sheet  of  the Higher Secondary  

School Certificate Examination by ignoring the entry made in the birth  

certificate issued under the Registration of Births and Deaths Act, 1969  

(for  short,  ‘the 1969 Act’).  In  support  of  this  conclusion,  the  Division  

Bench referred to the judgment of  this  Court  in Jabar Singh v.  Dinesh  

(2010) 3 SCC 757. The Division Bench also disposed of Writ Appeal No.  

194/2009  filed  by  the  respondent  against  the  order  passed  in  W.P.  

No.108/2006 and set aside order dated 9.3.2009 passed in R.P. No.23/2008  

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by the learned Single Judge.

18. Shri Anoop G. Chaudhari, learned senior advocate appearing for the  

appellants argued that the impugned judgment and order are liable to be set  

aside  because  while  deciding  Writ  Appeal  No.195/2009,  the  Division  

Bench  of  the  High Court  committed  serious  error  by  relying upon the  

decree passed in O.S.  No.165-A/1974 which had been set  aside by the  

lower  appellate  Court  and  the  High  Court  and  this  Court  refused  to  

interfere with the judgment of the lower appellate Court. Learned senior  

counsel submitted that once the decree passed in favour of the respondent  

was  set  aside,  the  findings  recorded  therein  will  be  deemed  to  have  

become non-existent and the same could not be made basis for entertaining  

the respondent’s claim that his date of birth was 15.1.1948.  He further  

submitted  that  copy  of  birth  certificate  dated  25.2.1970  issued  by  the  

Corporation  cannot  be  taken  into  consideration  for  deciding  the  

controversy  relating  to  the  respondent’s  date  of  birth  because  if  he  is  

treated to have been born on 15.1.1948, then he would have been a minor  

as on 27.5.1965 and could not  have been appointed as Lower Division  

Clerk  in  the  office  of  Commissioner,  Settlement  and  Director  of  Land  

Records, Madhya Pradesh. Shri Chaudhari emphasized that after securing  

employment on the basis of his date of birth as 20.2.1942, the respondent  

was estopped from claiming that his correct date of birth is 15.1.1948.  

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19. Ms. Prerna Mehta, learned counsel for the respondent supported the  

impugned judgment and argued that in view of the law laid down in Jabar  

Singh v. Dinesh (supra) the Division Bench of the High Court cannot be  

said to have committed any error by relying upon the respondent’s date of  

birth  recorded in  the birth  certificate  issued  by Municipal  Corporation,  

Gwalior.

20. We have considered the respective arguments and carefully scanned  

the record.  It is not in dispute that the action taken by the management of  

the  appellants,  which  became  subject  matter  of  challenge  in  the  writ  

petition filed by the respondent was preceded by full compliance of the  

rule of  audi alteram partem.  The respondent was issued notice and was  

given opportunity to explain as to why the date of birth recorded in the  

service  book  on  the  basis  of  the  decree  passed  by  the  trial  Court  in  

O.S.No.165-A/1974  may  not  be  changed  because  the  lower  appellate  

Court had reversed the judgment of the trial Court.  In the reply filed by  

him,  the  respondent  did  rely  upon  the  birth  certificate  issued  by  the  

Corporation but the same was not accepted by the management for cogent  

reason.  If  15.1.1948  was  to  be  treated  as  correct  date  of  birth  of  the  

respondent,  then he  could  not  have  been  appointed  as  Lower  Division  

Clerk  on  27.5.1965.   However,  the  fact  of  the  matter  is  that  he  was  

appointed as Lower Division Clerk and served in that capacity for about  

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one year.  Learned counsel for the respondent could not explain as to how  

her client, who claims to have been born on 15.1.1948, could be appointed  

in Government service at the age of 17 years and 4 months. She also failed  

to draw our attention to any provision in the service rules which postulate  

appointment of a minor in the Government service. Therefore, the entry  

made  in  the  birth  certificate  issued  on  25.2.1970  cannot  be  made  

foundation of a declaration that the respondent’s correct date of birth was  

15.1.1948.

21. There is another reason for our inclination to set aside the impugned  

judgment. At the time of joining as Lower Division Clerk in the office of  

Commissioner,  Settlement  and  Director  of  Land  Records,  Madhya  

Pradesh, the respondent did not produce any evidence showing his date of  

birth as 15.01.1948.  At the time of his appointment in 1986 as Personal  

Assistant  in  the employment  of  appellant  No.1,  the respondent  did  not  

produce  birth  certificate  dated  25.2.1970  issued  by  the  Corporation.  

Rather, he got the date of birth entered in the service book by producing  

copy of the judgment of the trial Court, which had already been set aside  

by  the  lower  appellate  Court  on  27.7.1977.  If  the  respondent  was  

possessed with the certificate issued by the Corporation under the 1969  

Act, then there was no earthly reason for not producing the same for the  

purpose of recording of date of birth in the service book. However, the fact  

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of  the  matter  is  that  instead  of  relying  upon  the  birth  certificate,  the  

respondent produced copy of the judgment of the trial Court and got his  

date of birth recorded as 15.1.1948 by suppressing the fact that the lower  

appellate Court had reversed the judgment of the trial Court. Therefore, the  

Division Bench of the High Court committed serious error by setting aside  

the orders passed by learned Single Judge.

22. Before  concluding,  we  may  mention  that  even  though  the  

respondent  had  challenged  the  departmental  proceedings  in  

W.P.No.108/2006, he did not question the report of the inquiry officer,  

who  found  him  guilty  on  all  charges  except  charge  No.3  and  the  

disciplinary authority imposed penalty of  10% cut in the basic  pension  

w.e.f.  1.3.2002 and no argument was advanced on the legality of order  

dated 15.2.2011 passed by the competent authority.  

23. In the result, the appeals are allowed, the impugned judgment is set  

aside and the orders passed by the learned Single Judge dismissing the writ  

petitions and the review petition filed by the respondent are restored.

..….………………….…J.          [G.S. SINGHVI]

..….………………….…J.          [H.L. GOKHALE]

New Delhi, February 11, 2013.  

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