Court No. - 37
Case :- WRIT - A No. - 5446 of 2018 Petitioner :- Lakshman Respondent :- State Of Up And 4 Others Counsel for Petitioner :- Pramod Kumar Gupta,Rajvendra Singh Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
Petitioner by the instant writ petition is seeking a writ of mandamus directing respondent no.5 to take decision on the application of the petitioner dated 2 May 2017, by which the petitioner has requested to correct his date of birth in service book as per his educational record in the light of inquiry report dated 20 February 2017 submitted by Basic Shiksha Adhikari, Ballia within a stipulated period.
Petitioner has retired from the post of Beldar on attaining the age of superannuation on 31 December 2016. It is submitted that the petitioner was initially appointed as daily wager in 1989, thereafter, in 1999 was engaged as work charge employee. In 2011 petitioner was regularized. The date of birth recorded in the service record of the petitioner is 1 January 1957. Consequently, petitioner retired on 31 December 2016. It is urged on behalf of the petitioner that his date of birth was wrongly entered in the service book, whereas, his actual date of birth is 1 December 1967.
Learned Standing Counsel submits that as per Rule 2 of the U.
P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 (for short 'Rules, 1974), the entry made in the service book would be final for the purposes of determining the age of birth.
Rule 2 of the U. P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 is extracted :
"2. Determination of correct date of birth or age.-The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed 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, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."
From a perusal of Rule 2 of the Rules, 1974, which was amended by first amendment in 1980, it transpires that if a person enters into service after passing the High School Examination then the date of birth recorded in the High School Certificate shall be deemed to be his correct date of birth. However, in case the employee has entered into service before passing the High School examination, then the date of birth recorded in the service book shall be deemed to his correct date of birth. The said rule also provides that no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. Thus, in relation to correction of date of birth, a legal fiction has been made which means that the date of birth recorded in either of the circumstances referred to Rule 2 of the Rules of 1974 shall be deemed to be correct for all purposes particularly for the purpose of determining the age of retirement. The effect of deeming provision/legal fiction has been considered time and again.
In the circumstances when the rule asserts that if a person has entered into service without passing High School examination, then the date of birth recorded in his service book shall be deemed and assumed to be correct. However, it is not permissible in law that the petitioner should raise issue of correcting his date of birth at the fag end of his career and that too after attaining the age of superannuation.
On being confronted with the rule, learned counsel for the petitioner does not dispute that he has not passed High School or equivalent examination and admits that at the time of entry into Government service, 1 January 1957 is recorded as his date of birth in the service record.
The petition being devoid of merit is, accordingly, dismissed.
Order Date :- 22.2.2018 Manish Himwan