RAKESH KUMAR TIWARI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS petition in public interest litigation is filed against the appointment of respondent No.3 as Dy. Commissioner, Municipal Corporation, Gwalior and it is also contended that respondent No.3 Rambabu Jakheniya is not eligible to continue in service beyond the age of 60 years. Respondent No.3 has manipulated the service record and he is being continued in service even after the age of superannuation. It is further contended that after finding discrepancy in his service record, notice Annexure P -5 was issued to him by Municipal Corporation on the directions of the Administrator, but no action was initiated on the said notification and after issuance of this notice, it is found that portion over which age and date of birth was written in the application form is damaged.

(2.) RESPONDENT No.3 vehemently opposed the petition and submitted that petitioner has no locus to file petition. We have heard the counsel for parties. Section 58 of Municipal Corporation Act provides that post of Dy. Commissioner, Municipal Corporation shall be filled by the "Mayor -in -Council" after approval of the post by State Government. It further provides that after the post is sanctioned, "Mayor -in -Council" shall recommend the name and on approval of State Government, Dy. Commissioner shall be appointed. On perusal of letter of appointment of respondent No. 3 as Dy. Commissioner, it is found that he is appointed as Dy. Commissioner in anticipation of sanction from the State Government by the order of Commissioner, Municipal Corporation, Gwalior on the recommendation of the General Body of Municipal Corporation. Thus, appointment itself is contrary to section 58 of Municipal Corporation Act and it is held that respondent No.3 is not eligible to hold the post of Dy. Commissioner, Municipal Corporation. His appointment at the instance of General Body of Municipal Corporation is bad in law and order of his appointment dated 3.10.2000 Annexure P -6 is quashed.

(3.) PETITIONER has filed document Annexure P -1, in which respondent No.3 has mentioned his date of birth as 15.4.1942 and his age at the time of appointment is mentioned as 22 years. Petitioner has contended that this record was tempered by overwriting, which is apparent from document Annexure P -2, wherein date of birth is mentioned as 15.4.1945 and 19 years of age at the time of appointment on the post of Assistant Taxidermist. In the service book said to be prepared on 9.12.1974 his date of birth is mentioned as 22.10.1948. It is pertinent to mention here that respondent No. 3 Rambabu Jakheniya was appointed as Assistant Taxidermist on 7.5.1964. He was appointed temporarily. Later he was confirmed on the post of Assistant Taxidermist. During this period respondent No.3 appeared in the Higher Secondary Examination and passed the Higher Secondary Examination. Thus, main question is whether on a subsequent recorded date of birth respondent No.3 could be appointed as Assistant Taxidermist in 1964 when he was less than 16 years of age. Respondent Corporation has issued notice to respondent No.3 vide letter dated 12th September 1994 Annexure P -4 asking him to produce middle school certificate in proof of his age within 7 days. In the first application for appointment he has mentioned that he has passed Middle Examination. He was directed to produce Middle School Certificate and he was further directed that since he has passed Higher Secondary Examination during service, therefore his date of birth can be recorded on the basis of Middle School certificate. Respondent No. 3 was directed to produce Middle School Certificate within seven days. Respondent No. 3 did not produce the certificate. Then on 1.10.1994 notice was issued to respondent No.3 asking him to clarify that in the appointment letter in Column No. 5 he has shown his educational qualification as Middle pass and some overwriting over date of birth 9.4.1942 has been made and in Column 7 he has mentioned his age as 19 years on 7.5.1964 and notice was issued why his date of birth be not treated as 7.5.1945. In the notice it was mentioned that as per instructions of Government dated 30.8.1993 that if he was not eligible to be appointed on the date of appointment then he should not be allowed to continue in service and was asked to submit middle school certificate within 7 days.