Employee Can't Be Made To Retire Before Date Of Retirement Unless Date Of Birth Is Changed In Original Service Records: Allahabad High Court

The Allahabad High Court has held that an employee cannot be retired prior to his date of retirement unless the date of birth of such employee is changed in the original service records to enable the authority to retire the employee.

A bench of Justice Ajit Kumar held that “without changing the date of birth originally recorded in the service book, an employee cannot be made to retire. The basic philosophy behind the service jurisprudence is that there is contract of employment between employer and employee. The service book maintained by employer is a part of the contract of employment and any change therein has to first take place as it would be altering the condition of employment.”

The Court also held that the Life Insurance Policy is not a document for the purpose of determining age in service law.

Factual Background

In 1984, the petitioner was appointed as a peon on a daily wage basis in the office of the Town Area Committee, Dohri Ghat, Mau. Though the petitioner's services were regularized in 1992, suddenly his salary was stopped, and his services were terminated. The writ Court set aside the termination, and the petitioner was reinstated.

Based on some complaints, the petitioner's date of birth 01.01.1964 as recorded in the service book was not considered and he was made to retire on 30.08.2014. His salary was also withheld by the Chairman of the Nagar Panchayat, Dohri Ghat Mau.

Challenging the termination order, the petitioner argued that no show cause notice or opportunity of hearing was given to him prior to the passing of the order. Further, it was argued that the date of birth of a government employee could only be changed based on a High School certificate. It was argued that the date of birth of the petitioner in the service book still reflected 01.01.1964, and the same ought to have been considered.

In the counter affidavits filed by the respondents, it was stated that upon some inquiry, the date of birth of the petitioner was discovered to be 20.07.1950. The same was mentioned in a transfer certificate issued in 1967 where it was also provided that the petitioner had failed twice in the High School Examination by the U.P. Board of High School Intermediate.

High Court Verdict

The Court observed that nowhere in the affidavits was it stated that any inquiry was done to verify the aforesaid transfer certificate or the fact that the petitioner had failed twice from the Board of High School/Madhyamik Siksha Parishad, U.P.

The Court observed that the petitioner was retired on 30.08.2014 by taking his date of birth as 01.09.1954 whereas in the inquiry report submitted by the District Magistrate, the date of birth was recorded as 20.07.1950. it was held that due to the discrepancies in the dates, the inquiry report could not have been the basis of the petitioner's early retirement.

The Court held that nowhere it was stated that the petitioner's date of birth in original service records was changed, and without such change, the date of retirement of the petitioner could not be altered by the respondent authorities.

Further, the Court observed that the transfer certificate produced was of someone else and did not bear any signature of the principal or seal of the school. It was observed that it seemed “to be document either got prepared for the purpose of the case to defend the decision of the Chairman or somehow obtained that to mislead the Court on facts.”

Holding that the Life Insurance Policy cannot be relied on for age determination in service law, the Court observed that no inquiry was carried out by the authorities regarding the alleged age discrepancies.

The Court relied on Rules 2 and 3 of Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974 which provide that the date of birth of a government employee must be recorded as per the High School certificate of an employee, and where employee has not passed any High School examination, the date of birth recorded at the time of employment is deemed to be the correct date of birth which cannot be changed later.

“The Courts have repeatedly held that actions to be taken by the authorities must be sound and reasoned one, more especially in service cases where interest of employees is at a stake and so respondents authorities are not supposed to act an arbitrary manner. The method in which the Chairman in the present case had passed the order impugned retiring the petitioner without assigning any reason except relevant policy bond paper and that too without holding any enquiry. This was totally unwarranted.”

Observing that the District Magistrate had held the inquiry in a hush-hush manner, the Court quashed the order and held the petitioner to be in service till 31.12.2023. Accordingly, it was directed that salary be paid to him till the date of his retirement.

Case Title: Suresh Yadav v. State Of U.P. And 3 Ors 2024 LiveLaw (AB) 462 [WRIT - A No. - 61181 of 2014]

Case citation: 2024 LiveLaw (AB) 462

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