LAKSHMIBAI NAT.INST.OF PHY.EDU. Vs SHANT KUMAR AGRAWAL
Case number: C.A. No.-000480-000480 / 2013
Diary number: 30625 / 2011
Advocates: NITIN BHARDWAJ Vs
TAYENJAM MOMO SINGH
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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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