JUDGMENT R.B. Misra, J.
1. Heard Sri S.K. Misra, learned Counsel for the petitioner and Sri S.S. Sharma, learned Standing Counsel on behalf of the respondents.
2. In this petition the order dated 9.5.1996 (Annexure-16 to the writ petition) passed by the Settlement Officer, Consolidation, Sitapur has been challenged, whereby the petitioner's date of birth has been treated as 19.10.1930 and has issued a direction to deduct the amount which the petitioner had received for four years claiming his date of birth to be 19.10.1934. By this order dated 9.5.1996 it has also been indicated that amount of Rs. 92,360.45 p. received by the petitioner during the above period may also be adjusted from the pension to be allocated to the petitioner.
3. It appears that the petitioner was appointed as Class-IV employee in April, 1957 in Consolidation Department at Fatehpur. In the service book his date of birth was entered as 19.10.1934 and by treating this date of birth the petitioner was to retire on 19.10.1994. It appears that at some stage the date of birth mentioned as 19.10.1930 was cut in the service book and 19.10.1934 was mentioned and in the service book nothing was mentioned by whose order and by which authority this rectification in the date of birth was made and the corrected date of birth was also not recorded in the words. The original record of the service book has been produced.
4. According to the letter dated 27th January, 1996 the Settlement Officer, Consolidation, Sitapur wrote to the Settlement Officer, Consolidation, Sitapur that on the basis of the certificate of Gram Pradhan of the village as well as certificate given by the Chief Medical Officer, Fatehpur the date of birth of the petitioner was 19.10.1934. However the clerk who was dealing the Service Book had died.
5. I have heard learned Counsel for the parties. The original service book has been placed before me. I have perused the same. The original date of birth entered as 19.10.1930 was cut and 19.10.1934 was mentioned. On the new entry of date of birth no signature of any authority was mentioned in the service book. The corrected date of birth has also not been recorded in words. By the certificate of the Chief Medical Officer the real date of birth cannot be assessed. The dealing clerk of the department was also dead and the Commissioner, Consolidation the Competent Authority has also not approved the date of birth 19.10.1934 as correct date of birth and the benefit of the circular dated 28th May, 1974 in respect of determination of date of birth as entered in the service book also cannot be extended to the petitioner. The benefit of the provisions of U.P. Service Recruitment (Date of Birth Fixation) Rules, 1974 cannot also be given as the petitioner's entry in the service book in respect of the date of birth is also doubtful. The date of birth once entered in the service book and has been changed subsequently not according to the proper authority cannot be believed. The certificate of the Chief Medical Officer and also of the Gram Pradhan is not an authentic document. In these circumstances the claim of the date of birth to be 19.10.1934 is said to be doubtful and therefore, the original date of birth entered as 19.10.1930 as indicated in the impugned order remains in tact.
6. In (2003) 2 UPLBEC-280, Bimlesh Sharma v. Electricity Board, Office of Chief Engineer, U.P. Rajya Vidyut Parishad Moradabad and others, where date of birth entered in the service book was to be changed by the deceased employee wife when the husband of the writ petitioner had died after retirement by disputing the change of date of birth. This Court has held disputed question of fact cannot be investigated in the writ petition and the date of birth once entered in the service book of the petitioner under U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974, was treated to be correct supported by the relevant documents and supporting entries in the service book and the change of the date of birth disputing the same on the basis of fitness certificate were not treated to be relevant proof of age and such controversy and disputed question of fact could not be resolved by investigating the authenticity of the documents relied upon by the parties concerned in the writ petitioner.
7. In the case of Adhishashi Abhiyanta, Electricity Board, Rihand and Hydel Civil Div., U.P. State of Electricity Board, Allahabad and Anr. v. Shitla Prasad and Anr., Special Appeal No. 383 of 1989, 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 0could not be treated 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 know 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 of 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 date on the basis of which he would have formed his opinion about the age. The Doctor while giving opinion about the age of a persons is if the..........Nature of the an expert and in absence of necessary scientific date..........weight in view of Section 45 of Evidence Court, We arc clearly of the opinion that the medical fitness certificate dated 25.7.1994, 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 bis age."
8. In the case of Burn Standard Co. Ltd, v. Dinabandhu Majumdar, AIR 1995 Supreme Court 1499 : 1995 (4) SCC 172, it was held that the employee of a public sector undertaking whose date of birth was entered in service book and leave record on the basis of the voluntary declaration made by the employee at the time of appointment and authenticated by him was never objected to up to the fag end of service, thereafter he sought for correction of date of birth about two years before (sic) when his prayer was refused, he moved the High Court in the Writ petition, where relief was granted in his favour, however, the Supreme Court in appeal by special leave has held that ordinarily the High Court should not exercise its discretionary in writ jurisdiction and entertain a writ petition filed by an employee of the Government or any instrumentality of State towards the fag end of his service seeking correction of his date of birth entered in his service record or service register with the avowed object of continuing in service beyond the consequential period of retirement.
The Supreme Court has pointed out when an employer of the Government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct all of a sudden comes forward towards the fag-end of his service career with writ petition before the High Court seeking correction of date of birth in his service record, the very conduct of not raising any objection in the matter by the employee for long should be a sufficient reason for the High Court not to entertain such application on the ground of acquiescence, undue delay and laches.
9. In the case of State of Orissa and Ors. v. Ramnath Patnaik, AIR 1997 Supreme Court 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 no avail..........."
10. In the case of Hindustan Lever Limited v. S.M. Jadhav and Anr., 2001 (2) ESC 338 (SC), 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 correction of his date of birth".
11. In another case State of Orissa and Ors. v. Ramnath Patnaik, 1997 Alld. Civil Law Journal 1149, the Supreme Court has held that "an employee cannot be permitted to seek correction of his date of birth after his retirement".
12. In the case of General Manager, Bhawani Cooking Coal Limited, West Bengal v. Shib Kumar Dushad and Ors., 2001 (1) ESC 41 (SC), 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".
13. In the matter of dispute regarding date of birth, the Government may choose one of the suggested date of birth given by the employee if some preliminary inquiry is made to resolve the controversy of the date of birth and Inquiry Officer holds the preliminary inquiry does not disclose to the person concerned and the decision arrived thereunder was treated to be contrary to the basis of justice and can have no value and I shall be treated against the rules of natural justice has to accept one date of birth out of the claims by the employee on the basis of the inquiry report, such inquiry report should be passed on after informing the person concerned and after taking into the evidence in support thereof and after providing opportunity to the persons concerned as held in the State of Orissa v. Dr. Miss Binapani Dei, AIR 1967 SC 1269.
14. In Bhupendra Nath Chatterjee v. State of Bihar, AIR 1977 SC 746, it was held that the date of birth recorded in service record is to govern the date of superannuation of the person from service.
15. In the matter of correction date of birth an application for that purpose is to be filed, according to the procedure prescribed within the time under rules or if no rule is prescribed, such application should be made within reasonable time. The. Supreme Court has held that no interim order on application for correction of the date of birth should be passed by the Tribunal or the High Court keeping in view only the public service, directing the employee to be continuing in service unless there are cogent and conclusive materials produced by the employee that the date of birth recorded in the service record was not correct. The onus is heavy on the employee to prove the authenticity of the date of birth claimed for, it was, therefore, held that the Court or Tribunal shall be slow in granting such interim relief unless the claim is supported by prima facie evidence of unimpeachable character, as observed in Secretary-cum-Commissioner, Home Department v. R. Kirubakaram, AIR 1993 SC 264 : 1994 Supp (1) SCC 155.
16. The application for correction of date of birth as recorded in the service book are not permitted to be corrected by ordinate delay as held in Union of India v. Kantilal Hematram Pandiya, (1995) 3 SCC 17.
17. In another case when long delay was made in seeking the correction of date of birth and the application having been filed beyond the statutory time limit (three years) it was held by the Supreme Court that competent authority may reject such application and the plea of the employee that the alleged mistake was discovered at about the time when he filed the application for date of birth which was about 40 years of the date of joining the service cannot be accepted as correct. [Chief Medical Officer v. Khadeer Khadri, AIR 1995 SC 850 : (1995) 2 SCC 82].
18. In Union of India v. Ram Suia Sharma, 16, (1996) 7 SCC 421; the Supreme Court has again reiterated that the claim for correction of the recorded date of birth made 25 years of joining in the service could not have been entertained by the Central Administrative Tribunal and the Tribunal's direction allowing such a claim as per se illegal and that due to long delay and laches, such a claim should not have been entertained by the Tribunal.
19. In respect of condition precedent for correction of date of birth the Supreme Court held the employee seeking the correction of the date of birth must show that the recorded date of birth was made due to negligence of some other person or that the same was an obvious clerical error and that where the employee fails to do so, such relief for correction of date of birth should not be granted by the Administrative Tribunal. In that case, the extract from the Birth Register was produced, subsequently to the recording of date of birth on the basis of the school leaving certificate. The authority refused to correct the date of birth in the service on the basis of such extract. It is hold by Supreme Court that in the absence of any material to show that the entry in the school leaving certificate was incorrect, the authority rightly refused to correct the date of birth, more so when the extract from the Birth Register even otherwise was found to be doubtful. [Commissioner of Police, Bombay v. Bhagaban V. Lahane, AIR 1997 SC 1986].
20. The respondent applied for correction of date of birth before the Appointing Authority on obtaining a decree from Civil Court in a Civil Suit filed by the respondent against the Board/University for correction of his date of birth in the matriculation certificate issued by the Board/University. In that suit Government was not made a party. The question arose if the Government was bound to correct the date of birth in the service record on the basis of the said decree obtained against the Board/University in which the Government was not a party. The Supreme Court has held that as in the suit the Government was not a party, such decree is not binding upon the Government and the Government is not obliged to correct the date of birth on the basis of the said decree. It is also held that at best it is a piece of evidence and the Government has to look into all kinds of evidence for determination in order to decide whether the date of birth should be correct. It is observed that what is the date of birth is undoubtedly a question of fact and so all kinds of evidence can be looked into for such determination and if the Government on consideration of all these facts refused to correct the date of birth, then the order cannot be interfered with by the Court or Tribunal. [Director of Technical Education v. Smt. K. Sitadevi, AIR 1991 SC 308 : 1991 Supp (2) SCC 387].
21. The object of the rule or statutory instructions issued under the provision to Article 309 or orders issued by the Government under Article 162 of the Constitution for the correction of date of birth entered in the service record, is that the Government employee, if he has any grievance, in respect of any error or entry in the date of birth, will have an opportunity, at the earliest to have it corrected. Its object also is that the correction of the date of birth beyond a reasonable time should not be encouraged. Permission to reopen accepted date of birth of an employee, specially on the eve of or shortly before the superannuation of the Government employee would be an impetus to produce fabricated records. [State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302].
22. In reference to the decision of Supreme Court in Burn Standard Co. Ltd. (supra) where entry of date of birth noted in the Admit Card of Matriculation Examination could not be relied upon by the employer to correct the date of birth recorded in the service and Leave Register of the employee and authenticated by the employee himself it was the date of birth recorded at the time of joining service on the basis of the S.S.L.C. register was challenged by the employee 35 years later and his previous application for correction seven years earlier had already been rejected by the authority and at the belated stage, the only evidence was his oral evidence and the horoscope evidence. Therefore, the Supreme Court held that at the belated stage the horoscope evidence or oral statements cannot be believed. [Collector of Madras v. Rajamanickram, (1995) 2 SCC 98]..
23. The date of birth recorded in periodical medical inspection reports can be relied upon when the employee challenged the declared date of birth as mentioned in the notice of superannuation as incorrect as the service records were missing. The Department pleaded before the Court below that the service record was manipulated and that the service register was removed by the employee in connivance with the Office Superintendent. The employee sought to rely upon the periodical medical reports nothing date of birth to uphold his contention that the date of birth mentioned in the notice of superannuation was not correct. It was held that the date of birth recorded in the periodical medical inspection reports are not such reliable piece of evidence to uphold the contention of the employee that the date of birth mentioned in the superannuation notice is incorrect. [Sheo Nandan Singh v. Union of India, (1996) 1 SCC 593].
24. In respect of correction of date of birth after retirement when claimant, retired from the service on 31st December, 1978 and in 1981 he filed a suit against the rejection of his representation for correct of his date of birth for declaration that his correct date of birth is 1st January, 1925 and not 1st January, 1921. The trial Court dismissed the suit but the First Appellate Court decreed the suit and the Orissa High Court has dismissed the second appeal in limine. The Supreme Court set aside the order of the High Court and allowed the appeal and also the judgment and decree of the First Appellate Court and restored that the trial Court. It was held that when entry was made in the service record and when he was in service, he did not make any attempt to have the service record corrected any amount of evidence produced subsequently would be of no avail and that the High Court has, therefore, committed the manifest error in refusing to entertain the second appeal. [State of Orissa v. Ramnath Patnaik, AIR 1997 SC 2452 : (1997) 5 SCC 181].
25. However, under bona fide impression the petitioner was allowed to work for four years from 19.10.1930 to 19.10.1934 and he has received remuneration and pay scale, therefore, in the larger interest of justice since the petitioner has worked and have been paid amount as such the amount namely Rs. 92,360.45 p. has not be recovered from the petitioner. In this respect the order dated 9.5.1996 (Annexure-16) is said to be modified. However, treating the petitioner's date of birth as 19.10.1930 and treating that petitioner was retired on 19.10.1990, his benefits and other post retirement benefits may expeditiously be finalised considering the pay scale etc. on 31.10.1990. Since the petitioner is a senior citizen as such his pensionary benefits shall be finalised within four months from today.
26. In view of the above observation this writ petition is disposed of.