JUDGMENT Bhanwar Singh, J.
1. The writ petitioner has sought for quashing the order dated 1.7.1997 (Annexure-1) and order dated 22.4.1997 (Annexure-18). By virtue of the order Annexure-1, the Zonal General Manager, opposite party No. 4 had changed the petitioner's date of birth from 13.10.1941 to 13.10.1939 and in this way, he was informed that his date of superannuation at the age of 58 years (as the date of retirement then was) would be the last day of October, 1997. Annexure-18 was a similar order issued by the General Manager (Personnel), opposite party No. 3 and in pursuance of the said order, his original date of birth, i.e., 13.10.1941 was scored out and in its place, the corrected date of birth, i.e., 13.10.1939 was recorded. Seeking quashing of these two orders, the petitioner has further prayed for a writ in the nature of mandamus commanding the opposite parties to restore his original date of birth and allow him to continue in service until 31.10.1999.
2. The factual matrix, as recited in the petition, is as follows :
In the month of May, 1957, the petitioner was selected for appointment to the post of Conductor and on the basis of the said selection, he was appointed as Conductor in the then U.P. Government Roadways, Jaunpur. He was transferred from Jaunpur to Varanasi by the Assistant General Manager of the Roadways, Varanasi. He was regularized as Conductor with effect from 1.8.1957 and in the service book prepared by the department, his date of birth was recorded as 13.10.1941. The service book was prepared on 1.8.1957 by the General Manager of the Roadways. After satisfactory service of about five years, he was promoted to the post of Booking Clerk in the year 1962. Under the provisions of U.P. State Road Transport Corporation Act, 1950, the State Government by issuing a notification constituted U.P. State Road Transport Corporation and the services of the roadways employees including that of the petitioner were placed on deputation with the Corporation. In the year 1982, the petitioner was absorbed in the service of the Corporation and from then onward, his service was governed by U.P. State Road Transport Corporation Employees (other than Officers) Service Rules. The petitioner was promoted to the post of Traffic Inspector Grade-I in the year 1981 and he got a further promotion as Senior Station Incharge with effect from 5.8.1988. Since then, he was continuously working on the said post at Varanasi. On 10.11.1995, a provisional seniority list for the cadre of Senior Station Incharge was published by the Regional Manager of the Corporation, in which the petitioner was placed at Serial No. 4 and his date of birth was shown as 13.10.1941. Similarly, in the final seniority list published on 20.8.1996, his date of birth was indicated to be as October 13, 1941. However, on 31.10.1996, the Regional Manager of the Corporation sent a letter to the Principal, Jaiswal Higher Secondary School, Varanasi soliciting the information about the petitioner's date of birth. The said institution was subsequently known as Khedan Lal Rajkiya Inter College, Chetganj, Varanasi. The Principal of the said College vide his letter dated 2.11.1996, confirmed that as per records of the College, the petitioner's date of birth was 13.10.1941. On the basis of this letter, the Regional Manager of the Corporation, Varanasi informed the Zonal General Manager, Varanasi that the correct date of birth of the petitioner was the same as recorded in his service book but contrary to the said recommendation, the Regional Manager by writing a letter on 28.11.1996 requested the Zonal General Manager to notify the petitioner's date of retirement as 31.10.1997 at the age of 58 years. The Zonal General Manager asked for the petitioner's service record in connection with promotion to the post of Superintendent and in the list submitted by the Regional Manager, the petitioner's name was placed at Sl. No. 27 with his date of birth as 13.10.1941. The General Manager (Personnel) of the Corporation at Lucknow sent a letter on 22.4.1997 to the Regional Manager of the Corporation at Varanasi and informed him that the petitioner's date of birth had been shown in his service book as 13.10.1939. On the basis of this letter received from the headquarter, the Zonal Manager rectified the date of birth as said above. In the said letter, it was recited that the Managing Director of the Corporation at Lucknow on having scrutinised some complaints regarding the date of birth of the petitioner, issued instructions to correct the date of birth and it was in pursuance of the said order that the entries in the service book of the petitioner were rectified. The Regional Manager, Varanasi sent a letter to the General Manager (Personnel) of the Corporation on 20.5.1997 and referred to some of the documentary record of the petitioner in which his date of birth was recorded as 13.10.1941 and solicited instructions in this regard. The Regional Manager again wrote a letter on 25.6.1997 reminding the Zonal General Manager for instructions in respect of the petitioner's date of birth but with no result. It was in these circumstances that the Zonal General Manager issued letter dated 1.7.1997 indicating therein 31st October, 1997 as the date of petitioner's retirement.
3. What noteworthy is that the petitioner was never served a copy of the proposed action regarding change of his date of birth nor any opportunity of hearing was ever afforded to him. Several authorities including the Managing Director looked into the alleged complaints but not even once the petitioner was asked to explain about his correct date of birth and in this way, an arbitrary decision to his serious prejudice was taken. The order dated 1.7.1997 retiring the petitioner with effect from 31.10.1997 was punitive in nature as his correct date of birth was erased by the Managing Director without following the principles of natural justice and a wrong date of birth was recorded in its place. Such a decision being unjust and unreasonable obliged the petitioner to file this writ petition.
4. Mr. P. Kumar filed his counter-affidavit on behalf of U.P. S.R.T.C. and stated that the petitioner had filed an application for job indicating in it his date of birth as 13.10.1939 and he also signed the service book on that date. The said application was moved by him on 1.8.1957 and if calculations are made treating his date of birth as 13.10.1939, he was 18 years of age on the date of joining his service. In case he was born on October 13, 1941, he was less than 16 years of age at the time of joining his service and thus a minor, not eligible for recruitment and appointment. It was in this background that he was served a notice conveying to him that he was due to retire on 31.10.1997, i.e., on attaining the age of superannuation on the last day of the month in which he was born. Therefore, he cannot be permitted to take advantage of his own mistake as employment cannot be given to a minor. Whatever the date of birth was recorded by the petitioner in his application would be treated to be final. The petitioner had not passed High School examination. Had he obtained High School certificate, the date of birth recorded in it would have been deemed to be final but since he did not reach that stage of education and recorded his date of birth in his application from as 13.10.1939, the said entry would be taken to be as final and the petitioner can neither be permitted to challenge it nor to derive advantage of his well-deliberated admission. Now, as per the records available with the U.P.S.R.T.C., the petitioner had superannuated in October, 1997 after completing more than 40 years of service. Since the petitioner did not produce any birth certificate at the time of joining his service and subsequently manipulated entries in the record, he would not be allowed to reap out of his mischief. In view of these facts and circumstances, the writ petition is liable to be dismissed.
5. I have heard learned Counsel for the parties and perused the record.
6. The main ground present into service on behalf of the petitioner is that in his service book and school records, his date of birth was recorded as 13.10.1941 and the opposite parties have changed the said date without giving him an opportunity of hearing.
7. In this context, it is noteworthy that the entire service record of the petitioner was requisitioned by the Court for perusal. A bare look at the original service book Part-I would show that the figures of the date of birth in the relevant column have been interpolated and it gives a succinct indication that the year had initially been erased and then the cut-off and in place of the original entries, new date beneath the original entries has been recorded as 13.10.1939. With the help of the magnifying glass, it is clearly visible that according to the interpolated entry, the petitioner's date of birth was 13.10.39 which was at some point of time changed as 13.10.41. No doubt, the record of the service book always remains in the custody of senior authorities, yet the possibility of the petitioner being instrumental in interpretations of his service book cannot be ruled out. Even if he is not asked to explain about the mischief which is clearly visible on the face of the service book, he being the beneficiary of such interpolations would certainly be deemed to have been behind the blatant change of date of his birth. It is not the petitioner's case that the said date was corrected after some enquiry on his representation. The mischief of forgery is further proved from very important documents. Annexure CA-1 is the photostat copy of the application form which the petitioner signed as back as in May, 1957, i.e., the date on which he was initially appointed as Conductor. The original application form was also requisitioned along with the service record of the petitioner who has admitted this signatures on the said original application form. He has, however, denied that in Column 7 of it, his date of birth was recorded by him but, as he added further, the said column was filled up by someone else. Relevant to note is that the petitioner signed the declaration given at the foot of this application form and according to this declaration, he has certified that the information given in the form are correct and complete to the best of his knowledge. It further clarifies that if any information is found to be false, his services may be terminated without notice. In view of this declaration, it becomes abundantly clear that the petitioner himself had furnished each and every information recorded in his application form and he knew that in case of any wrong information, he could have been terminated from service. In Para 7 of the application, his date of birth is candidly recorded as 13th October, 1939 without any interpolation. There is no reason to disbelieve this 46 years old original document which was admittedly signed by none else than the petitioner. In view of the genuineness of this documentary proof, the petitioner's case of his being born on 13.10.1941 is outrightly rejected.
8. Yet, there is one more document filed as Annexure CA-2 which was signed and dated by the petitioner on 31.1.1959 at Varanasi. The petitioner has himself alleged that a little while after he joined as Conductor, he was transferred from Jaunpur to Varanasi where he was promoted as Traffic Inspector and to other higher post. He was regularized on 1.8.1957 and in 1959, he was asked to submit his another declaration form. He signed that form on 31.1.1959, a fact which has been clearly admitted and in this form also, his date of birth was recorded as 13.10.1939. There was a gap of about 20 months in execution of these two important documents and as the petitioner and his accomplish were not able to locate these forms, they could not make any forgery in them, as a result of which, they remained intact clearly bearing in relevant columns thereof the petitioner's date of birth as 13.10.1939. The antiquity of both these documents is a very strong ground for this Court to believe the genuineness of the entries recorded therein.
9. Yet, there is another important aspect of this matter and it is that if the age of the petitioner is worked out with effect from 13.10.1941, he would have been only a minor 15 and half years of age and at that age, he might not have been capable of securing a job of Conductor but being 17-3/4 years of age, if calculated with effect from 13.10.1939, he would have been able to secure his job. Since he conveyed the information about his date of birth at the time of his appointment and subsequently on 30.1.1959, he is responsible for the information tendered by him not once but twice with certificates of declaration appended at the bottom of the documents. The petitioner's quotation of certain instances that few Conductors of the age of 15-16 years were engaged in those days will not enure any benefit to him as this working can merely support or dislodge a cause but it cannot be said to be a full proof or sound reasonings. It, however, remains a fact that in January, 1959, the petitioner was examined by a Doctor who had certified that he was about 19 years of age at that juncture. In January, 1959, he could be about 19 years old only if he was born in October, 1939. Until 1997, he served for more than 40 years and thus he gained the fullest advantage of this date of birth, i.e., 13.10.1939. Now, he cannot be allowed to retract from his own admission which resulted in all around gains for him.
10. After he succeeded in carrying out interpolation in his service book, he started claiming himself to be younger in age. In the year 1996, a seniority list of the Varanasi Zone was published and at Serial No. 55, the petitioner's date of birth was shown as 13.10.1939 in accordance with his record. It was this notice to him, in response to which he had submitted his representation on 25.9.1996 requesting for correction of his date of birth. Thereupon, enquiries were held and it was found that it was by way of interpolations, erasers and forged entries that in the first part of his service book, his date of birth as originally recorded had been tampered with and apparent were the signs of erasers and overwritings. The Regional Manager of Varanasi Zone pleaded his cause on the basis of the representation referred to above and controverted the complaint about interpolations in his service book and also conveyed to the Managing Director, Parivahan Nigam Headquarters, Lucknow that his date of birth was 13.10.19141. In this kind of recommendatory letter dated 5.10.1996 of the Regional Manager, reference was made to the entries appearing in two seniority lists prepared in 1995, copies Annexures 6 and 7. In these two documents, the petitioner's date of birth was entered as 13.10.1941. In this sequence of events, the Principal of Khedan Lal Rajkiya Inter College, Chetganj, Varanasi was also approached and he too certified that as per College records, the date of birth of the petitioner was 13.10.1941.
11. It is significant to note that the Managing Director (Personnel) vide his letter dated 26.4.1997 (Annexure-18) mentioned that from scrutiny of all the relevant records available in the office including the State seniority list of Senior. Station Incharge, the date of birth of the petitioner was 13.10.1939 and therefore, calculating from that date of birth, it was directed that he would superannuate on 31.10.1997. The Managing Director also indicated in his letter that the petitioner had engineered forged entries in his service book and also the school certificates. The other parts of the service book with favourable entries regarding the petitioner's date of birth are not important as during enquiry after notice to the petitioner, it was held that the forged entry was made in the first part of the service book by erasing the correct date of birth which was changed from 13.10.1939 to 13.10.1941. Further, it is apparent from the enquiry files that there are interpolations in the original school leaving certificate as well. It is on the departmental file of the petitioner. This document was signed by the Principal on 31.10.1956, i.e., much before the petitioner had joined his service in May, 1957 and in the relevant column of the date of birth, the entries have been interfered with. There arc clear-cut signs of erasers, over-writings and interpolations. The petitioner has not been able to explain as to how this document prepared in 1956 is bearing the tampered entries. The interpolations are the indicative of the proof of the mischief the petitioner had committed in order to derive advantage out of it. The antiquity of this document, erasers and over-writings in the relevant column of date of birth is prima facie proof of the mischievous mind of the petitioner. The department has throughly after a representation was made by the petitioner scrutinized each and every document available on record and the authorities have rightly come to a conclusion that the petitioner's date of birth as recorded in the application form submitted by him way back in 1957 was genuine and the same date of birth being as 13.10.1939 was recorded in the first part of his service-book.
12. U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974, have a clarification in case of such a dispute. According to Rule 3, the date of birth of the Government Servant as recorded in the certificate of his having passed the High School or equivalent examination or where a Government Servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into Government service shall be taken to be his correct date of birth or age as the case may be for all purposes in relation to his service, including eligibility for promotion.
13. In the case in hand, it is not disputed that the petitioner could not pass his High School Examination. Therefore, question of his having obtained a High School certificate does not arise. As a consequence, whatever the date of birth was recorded in his service book shall be deemed to be as correct date of birth.
14. The Apex Court held in "State of Orissa and Ors. v. Ramnath Patnaik, AIR 1997 SC 2452" that a Government Servant not making any attempt to have service record corrected in time, the date of birth entered at the initial stage of his service cannot be allowed to be subsequently changed.
15. Reliance was placed on behalf of the petitioner on the Apex Court decisions reported in "AIR 1967 SC 1269, State of Orissa v. Dr. (Miss) Binapani, Dei and Ors. and (1981) 3 SCC 544, Sarjoo Prasad v. General Manager and Ors." wherein it was held that the date of birth of an employee should not be unilaterally altered without giving an opportunity of hearing. In this context, it may be observed that neither of the two citations is applicable in the present set of facts and circumstances. In the case in hand, it was not a case of the department altering the date of birth of Kunj Behari Lal, the petitioner but, as a matter of fact, the forgery done in his service book was detected, enquired upon after the petitioner had moved a representation and the authorities conclusively and decisively held that since the petitioner's date of birth at the advent of his career was recorded as 13.10.1939, his subsequent version on the basis of the forged entry would not be held believable and acceptable. Since the petitioner while signing the application form as referred to above categorically declared his age with date of birth at the time of entering service and in another declaration form signed on 30.1.1959, he again declared that his date of birth was 13.10.1939, he cannot now be permitted to retract from the said declaration and say that opportunity of hearing has not been given to him. It is pertinent to note that giving a notice to the petitioner indicating his seniority in the seniority list with his date of birth was more than enough to meet the requirement of hearing and in fact, it was in pursuance thereto that he filed his protest dated 25.9.1996, (Annexure-9) giving reasonings to support his cause and also requesting for amendment in the seniority list (Annexure-8). Vide notification dated 23.9.1996 (Annexure-8), a notice was given to him that he would retire on 31.10.1997. His representation/reply to the said notice was thoroughly investigated and after scrutiny of the service record including the service book (first part) bearing interpolated entries as regards his date of birth, the Managing Director arrived at a conclusion in view of the clear and candid entries of the two declaration forms (Annexures CA-1 and CA-2), both signed by the petitioners that he was born on 13.10.1939. Giving him a further notice would have been repetition of the same thing and such a duplicate exercise would not have changed the position. Even if the petitioner is given an opportunity today to explain about his date of birth, the result would be the same as recited in application and declaration forms (Annexures CA-1 and CA-2). Learned Counsel for the petitioner was shown the original declaration forms on the file of the department but except that entries were made by some one else and he simply signed, no explanation came forward. These two documents, as can be observed at the cost of repetition, are conclusive proof with their entries binding upon the petitioner who is their signatory and it can, therefore, be safely held that the petitioner's version of his date of birth being 13.10.1941, is nothing but a issue of lies. Accordingly, I am of the view that even if the second notice could have been given to the petitioner about his date of birth, the position would have remained the same and therefore, no prejudice can be said to have been caused to him.
16. Considering all what has been said above, I am of the decisive opinion that this petition is devoid of merit and deserves to be dismissed.
17. Accordingly, the petition is dismissed with costs.