JUDGMENT A.K. Yog, J.
1. Heard Sri S.S. Tripathi, advocate, learned counsel for the petitioner and Sri Anil Mehrotra, advocate on behalf of contesting respondents Nos. 1, 2 and 3.
2. Respondents were granted time for filing counter-affidavit. Meanwhile a supplementary-affidavit was filed and respondents were required to file counter-affidavit/ supplementary - counter - affidavit annexing therewith extract photo stat copy of the Service Book in which date of birth of the petitioner's husband (Lakshmi Narain Sharma) was recorded.
3. Counter-affidavit and a supplementary-counter-affidavit have been filed today in the Court which have been accepted and taken on record.
4. Learned counsel for the petitioner stated that he does not propose to file rejoinder-affidavit/ supplementary-rejoinder-affidavit and argued the case on merit.
5. Hence the Court proceeds to hear the case on merit and decide it as per record before it.
6. Petitioner, Smt. Bimlesh Sharma, is the wife of deceased Lakshmi Narain Sharma. She claimed that her husband was wrongly retired in 1992, he was entitled to continue till 1996, her husband was retired prematurely ignoring discrepancies in the Service Book which disclosed that in the column of date of birth, age of the petitioner's husband was mentioned as 36 years and date of birth 17.2.1934 which did not reconcile. According to the petitioner, her husband joined service in 1974 and if 1934 is deducted from 1974 it will be 40 years and not 36 years (as mentioned in Service Book).
7. Petitioner pleaded, vide Para 15 of the Writ Petition, that the date of birth of her husband was 1936 and hence he should have been retired in the year 1996. In the writ petition, however, there is no averment, that the petitioner joined the department for the first time in the year 1974. Submission of the petitioner is thus based on assumption that petitioner's husband joined the Department for first time in 1974.
8. In Para 16 of the Writ Petition, it is mentioned that petitioner filed representations dated 6.7.1995, 15.8.1996, 3.9.1997 (Annexures 6, 7, and 8 to the Writ Petition respectively) for treating the date of birth of the deceased employee (husband of the petitioner) as 17.2.1936 ; on that basis he had to retire on 17.2.1996 ; the employee died out of shock in April, 1992 (after two months of his impugned retirement - w.e.f. 29.2.1992) and the eldest son of the deceased employee should have been offered appointment on compassionate ground treating Lakshmi Narain (the employee in service at the time of his death).
9. In Paras 4, 10 and 12 of the supplementary-affidavit, petitioner changed her stand by alleging that the date of birth of her deceased husband was 17.2.1938. Shifting of stand, as is evident on comparing the averments in the writ petition vis- a-vis supplementary-affidavit is conspicuous. It shows that petitioner was not sure of the date of birth of her husband.
10. In supplementary-affidavit also, there is no categorical statement to the effect that deceased husband of the petitioner (Lakshmi Narain Sharma) joined department for the first time in the year 1974.
11. Learned counsel for the petitioner, however, referred to Para 4 of the supplementary-affidavit wherein it is stated that the date of birth of the husband of the petitioner is 17.2.1938 and the date of appointment as 17.2.1974. As noted above there is no categorical pleading that petitioner joined the department for the first time in the year 1974.
12. The petitioner (wife of the deceased employee) has claimed two reliefs in the present petition viz ; (i) the Court may decide date of birth of the petitioner's husband (Lakshmi Narain Sharma) as 17.2.1938 in consonance with the letter dated 31.8.1994 of the Superintending Engineer and give entire retirement benefits counting the period of 28 years service from 17.2.1974 the date of appointment till 8.4.1992, the date of death, and (ii) the respondents be directed to give an employment to her son alone on compassionate ground, in place of his deceased father Lakshmi Naratn Sharma, who died due to shock on account of illegal action of the employer retiring prematurely.
13. The above pleadings in the supplementary-affidavit have been denied by the contesting respondents. Along with supplementary-affidavit copy of the letter dated 31.8.1994 written by the concerned Superintending Engineer to the Director (Personnel) U. P. Electricity Board, Lucknow has been annexed as Annexure-S A-2 and on its basis, it is pleaded that the department itself found discrepancy in the service record and held that petitioner's date of birth should have been treated as of 17.2.1938.
14. Pleadings contained in the writ petition and that of supplementary-affidavit have been categorically denied. The pleadings contained in Para 12 of the supplementary-affidavit referring to the letter of the Superintending Engineer, Annexure-SA-2, have been replied vide Para 12 of the supplementary-counter-affidavit wherein it is mentioned that the letter of Superintending Engineer was sent under some misconception and/or said letter was of no relevance apart from the fact that entry in Service Book could not be changed at a belated stage in view of the provisions of U. P. Recruitment and Service (Determination of date of birth) Rules, 1974.
15. As far the School Leaving Certificate referred to in Para 5 to the supplementary-affidavit, Annexure-SA-1 to the supplementary-affidavit, is concerned, the respondents vide Para 7 of the supplementary-counter-affidavit stated that Service Book was prepared and the date of birth of the husband of the petitioner was recorded as 17.2.1934 on the relevant page wherein the concerned employee has also signed. It is also pleaded that alleged certificate had no relevance, that the same was not correct one and further the respondent reserve their reply for giving at the relevant stage.
16. It may be noted that photo stat copy of the School Leaving Certificate (issued in 1949) has been filed as Annexure-SA-1 without explaining/ stating in the supplementary-affidavit why the same was not filed in the department immediately at the relevant time and withheld till time the filing of the supplementary-affidavit.
17. Had the petitioner filed the said School Leaving Certificate along with her representations (Annexures-7. 8 and 9 to the Writ Petition) wherein there is no reference to the said School Leaving Certificate, the department would have been in a position to hold an enquiry to ascertain or satisfy itself of its genuineness/authenticity. Petitioner has not said even a word in the supplementary-affidavit that why reliance was not placed on the said School Leaving Certificate in her representations and then how, she came to lay her hand upon the said School Leaving Certificate.
18. It is now well settled that in writ proceedings, Court cannot normally, enter into disputed facts and investigate into authenticity of documents relied upon by either parly to the writ proceedings.
19. As far as the letter of Superintending Engineer, Annexure-SA-2, is concerned (upon which great stress has been laid by the learned counsel for the petitioner), this Court fails to find out any adjudication on the issue. The said letter merely recites certain facts since the then Superintending Engineer, according to his wisdom, found some discrepancy, and sought clarification from higher authority.
20. Original service book has been produced before the Court which indicates that petitioner was appointed for the first time in the department w.e.f. 16.6.1970.
21. The entries to the said effect (encircled by red pencil) and two endorsements in the Service Book (made by Rubber Stamp and blanks filled in by hand) go to show that post of Patrolman in the pay-scale of Rs. 70-118 created for Lakshmi Narain Sharma, husband of the petitioner was appointed in regular Estt. w.e.f. 16.6.1970 vide B. O. No. 4965/NG/ SEB/-64-K/72 dated 1910.72 after completion of three years continuous service in W/C Estt. from 16.6.1967 to 15.6.1970. Again I find that on Form No. 11C pasted on the reverse of Page 21 of this very Service Book has various entries--the first entry in the said form is of 16.6.1970.
22. Learned counsel for the petitioner, however, argued that no reliance should be placed on the entries entered in the Service Book wherein blank pages have been left and scored out. That makes no difference inasmuch as the blank pages which had no entry at all have been scored out and thus no inference of fabrication or interpolation or manipulation can be drawn.
23. The petitioner had no explanation to the various entries showing that the petitioner joined Services in the department on 16.6.1970. Service Book apparently appears to have been prepared in normal course of business. Perusal of the Service Book indicates that petitioner was accorded revised pay scale w.e.f. 1.4.1973. The above conclusion is further verified on the endorsement made on Page 7 of the service book.
24. Learned counsel for the petitioner then referred to the so called Medical Certificate dated 17.2.1974 which is pasted on the left side of Page 1 of the Service Book. This Certificate issued by Medical Officer. In-charge Primary Health Centre, Dhampur (Bijnor) reads that:
"Lakshmi Narain Sharma son of Ram Swaroop Sharma a graduate for the post of Patrolman in the Hydel Department U.P. for physical fitness. He has no disease or physical or constitutional deformity making him unfit in further for the post of patrolman. His age according to his statement is 36 years and by appearance he is 38 years.
Signature Attested. Sign illegible dated 17.2.1974."
25. The aforesaid certificate is not a 'Medical Certificate' in proof of age inasmuch as it is not based on medical examination required for ascertaining age of a person. Secondly, the said certificate itself states that it is a physical fitness certificate (not the medical certificate of age) and the age 36 years mentioned in it was based on the statement as disclosed by the concerned employee though from his appearance, he appeared to be aged about 38 years.
26. In the case of Adhishashi Abhiyanta Electricity Board Rihand and Hydel Civil Div., U. P. State Electricity Board Allahabad and Anr. v. Shitla Prasad and Anr. Special Appeal No. 383 of 1999 decided on 17.9.1993, a Division Bench of this Court has held that :
"In our opinion, the medical fitness certificate dated 25.7.1974 could not be treated as an opinion of the doctor regarding the age of the petitioner. The certificate has, been given in the proforma prescribed under Fundamental Rules 10. The Doctor had examined the petitioner in order to ascertain as to whether he suffered from any communicable disease or otherwise and whether he had any constitutional weakness or bodily infirmity which would constitute disqualification for employment in the Hydel department. The doctor was not asked or required to give an opinion regarding the age of the petitioner. There are well known scientific methods to ascertain the age of a person and ossification of bone gives a fairly accurate idea regarding the age. However, for this purpose x-ray examination has to be performed. In case the doctor had been asked to give his opinion regarding the age of the petitioner, he would have performed necessary tests including x-ray examination, etc. and would have also given the scientific data on the basis of which he would have formed his opinion about the age. The doctor while giving opinion about the age of a person is in the - nature of an expert and in absence of necessary scientific data --------weigh in view of Section 45 of Evidence Act. We are clearly of the opinion that the medical fitness certificate dated 25.7.1974 could not at all be treated as an opinion of the doctor regarding the age of the petitioner. As a consequence the said document could not be used for the purpose of determining his age."
27. Having perused the Service Book carefully, this Court has no hesitation in recording finding of fact to the effect that petitioner was appointed in the year 1970 and not in the year 1974. This conclusion is fortified from the entries in Service Book. If he joined the Department in the year 1970, his age shall be 36 years according to the date of birth shown in the Service Book i.e., 17.2-1934. This adequately explains the doubt harboured by the then Superintending Engineer in his letter (Annexure-SA-2). If the officer wrote some letter under some misconception, ignoring certain other relevant entries in the Service Book, no advantage can be taken by the petitioner.
28. In the case of Burn Standard Co. Limited v. Dinabandhu Majumdar, AIR 1995 SC 1499, it has been held that normally High Court should not interfere in a writ petition for correction of the date of birth at the fag end of the service.
29. In the case of State of Orissa and Ors. v. Ramnath Patnaik, AIR 1997 SC 2452, the Supreme Court has observed in Para 4-"When entry was made in service record and when he was in service, he did not make any attempt to have the service record corrected. Therefore, any amount of evidence produced subsequently would be of no avail----."
30. Again in the case of Hindustan Lever Limited v. S. M. Jadhau and Anr., 20O1 (4) AWC 2.16 (SC) (NOC) ; AIR 2001 SC (1st) Suppl 1666, Supreme Court has elaborated its earlier view and held that "an employee cannot be allowed to raise, at the fag end of the career, dispute regarding correctness of his date of birth,"
31. In another case State of Orissa and Ors. v. Ramnath Patnaik. 1997 All CJ 1149, the Supreme Court has held that "an employee cannot be permitted to seek correction of his date of birth after his retirement."
32. Again in the case of General Manager Bhatuani Cooking Coal Limited, West Bengal v. Shib Kumar Dushad and Ors., AIR 2O01 SC 72 (Paras 15, 16, 17 and 21), the Supreme Court has held that "no dispute regarding correction of date of birth shall be permitted to be raised after long time his joining service unless it is based on some typographical or arithmetical error and the Court refused to interfere in such matter."
33. Coming to the question of granting of benefit of compassionate appointment, it may be noted that son of the deceased employee has not joined as petitioner in this petition.
34. Secondly, in none of the representation made by the petitioner, there is no averment whatsoever that family of the deceased employee is in distress which required immediate mitigation. That being so, there is no question of granting compassionate appointment. Mere death of an employee alone is not sufficient for claiming compassionate appointment. It must be shown that family is in distress which requires immediate mitigation of hardship.
35. Further, this Court finds that there is no justification in giving benefit of compassionate appointment inasmuch as the petitioner on her own showing made representations/ reminders leisurely i.e., only once in 1995, 1996, 1997, as is evident from Annexures-6, 7 and 8 to the Writ Petition.
36. The last reminder (as per Annexure 8 to the Writ Petition itself) is dated 4.8.1997 whereas this petition was filed in February 1998 (as per endorsement by Joint Registrar). It is also not disputed in the instant case that deceased employee died on 8.4.1992 and since then years have passed away. In the opinion of this Court, no direction can be issued to the respondents for consideration of appointment after lapse of 10 years.
37. One cannot loose sight of the fact that the petitioner had already retired (as per correct date of birth) and, therefore, the question of compassionate appointment did not arise at all.
38. Learned counsel for the petitioner made oral statement for providing photo stat copy of the Service Book. Learned counsel for the petitioner was permitted to peruse the Service Book but nothing has been pointed out except what has already been noted above. In view of the order of this Court dated 29.4.2002, photo copy of only one page of the Service Book of his service has been annexed.
39. In view of the prayer made to the Court petitioner is directed to make an application to the concerned competent authority for getting a duly authenticated photo stat copy of the Service Book provided petitioner makes an application within six weeks and on doing so, the concerned authority shall supply photo stat copy within two weeks.
40. In view of the reasons given above petition lacks merit and accordingly dismissed.