Court No. - 2
Case :- WRIT - A No. - 38054 of 2016 Petitioner :- Sita Ram Respondent :- State Of U.P. And 4 Ors.
Counsel for Petitioner :- Harindra Prasad,Ram Narain Counsel for Respondent :- C.S.C.
Hon'ble Suneet Kumar,J.
Heard learned counsel for the parties.
Petitioner was appointed Beldar on 7 July 1977, subsequently, was posted in the work charge establishment on 1 April 1995, thereafter, he was posted as Seenchpal on 11 March 2002. The relevant dates of his posting has been duly entered in the service book.
The instant writ petition is directed against the notice/office memorandum dated 6 February 2016, issued by the fifth respondent, Executive Engineer, Irrigation Division, Firozabad, requiring the petitioner to retire on 31 August 2016 on attaining the age of superannuation i.e. 60 years. The ground of challenge is that the date of birth has been wrongly entered in the service book i.e. 28 August 1956, whereas, it should read 28 August 1957.
It is pleaded that at the time of appointment in 1977 petitioner was High School, which he passed in 1976, and the date of birth recorded in the certificate is 28 August 1957 in Hindi numericals.
It is contended that petitioner submitted his High School certificate to the authorities but it appears that the year "1957" recorded in Hindi numerical was misread, consequently, the year of birth wrongly recorded in the service book in English as '1956'. It is urged that the number '7' in Hindi appears as '6' in English which is probably the reason for the mistake.
In this backdrop, it is urged that petitioner was entitled to continue in service until 31 August 2017 as per the date of birth recorded in the High School certificate. Further, it is contended that petitioner having being retired on 31 August 2016 but the post retiral dues of the petitioner has not been released. There is no fault on the part of the petitioner, rather, petitioner has been victimized for the mistake committed by the authorities in recording the date of birth in the service book.
In the counter affidavit filed on behalf of the fifth respondent, the factual matrix is not denied, nor, it is disputed that at the time of appointment petitioner was High School pass and had submitted his High School certificate in proof of his date of birth; the date of birth in the service book is recorded in English numerical as 28 August 1956 and on the strength of the entry made in the service book the petitioner came to be retired in August 2016.
Learned counsel for the petitioner has drawn the attention of the Court to Rule 3 of the U.P. Recruitment to Services Determination of Date of Birth Rules, 1974, which categorically mandates that date of birth of a government servant as recorded in the certificate of his having passed the High School or equivalent examination shall be deemed to be his correct date of birth or age for all purposes in relation to his service including retiral benefit and no application or representation shall be entertained for correction of such date or age in any circumstances. Rule 3 is extracted:
"(3) The date of birth of a 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 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, permature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."
A perusal of the aforesaid Rules would leave no room for doubt that date of birth recorded in the High School certificate shall be deemed to the correct date of birth. There was no occasion for the petitioner to misrepresent before the authorities, it is admitted case that petitioner had passed High School at the time of appointment and the date of birth entered in the High School certificate would be the date of birth that should have been recorded in the service book. It is on the mistake of the respondent authority that '1957' which was recorded in Hindi in High School certificate was misread and recorded '1956' in English. The mistake is on the part of the respondent authorities for which petitioner cannot be penalized or made to suffer. The stand taken by the respondents that since '1956' is entered in the service book at the time of appointment the same cannot be corrected at the belated stage cannot be sustained in the back drop of the mandatory Rule.
The plea of the respondents in my opinion is untenable and unjustified. Petitioner is not seeking alteration of the date of birth rather contends that the date of birth recorded in the High School certificate should be the basis while recording it in the service book as mandated by the Rules. It is not the case of the respondents that petitioner was not High School at the time of entry in service.
The Division Bench of this Court in Virendra Singh Versus State of U.P. and another, 2000(4) L.L.N. 60, held as follows:
"In Union of India v. Rama Swamy [A.I.R 1977 S.C 2055], which was a case coming from Andhra Pradesh, it was held by the Supreme Court that the date of birth can be changed only if there was a bona fide mistake. It was also held that the principle of estoppel will apply and hence when the Government servant had indicated a particular date of birth in his application form or any another document at the time of employment, the Court should not change that date of birth. The ratio of the above person shall apply with greater rigidity in Uttar Pradesh because here the 1974 rules specifically provide that no application or representation shall be entertained regarding change of date of birth in any circumstances whatsoever vide rule 3 quoted above.
8. The use of the words "in any circumstances whatsoever" indicate that the date of birth recorded in the High School Certificate (or in the service book at the tim of entry into Government service, if the person had not passed high school) is not merely a presumption but conclusive proof of the date of birth. In other words, no evidence can be led in rebuttal of such date."[Refer: Pravesh Kumar and another versus State of U.P. and others, 2013 (2) ADJ 112] Accordingly, in view of the discussion, the notice/office memorandum dated 6 February 2016 issued by the fifth respondent, Executive Engineer, Irrigation Division, Firozabad, is set aside and quashed. Petitioner is entitled to full salary with effect from 1 September 2016 to 31 August 2017 and pension and other post retiral dues to be computed, thereafter and paid to the petitioner along with 7% simple interest on the entire sum from the due date till the date of payment within three months from the date of receipt of certified copy of this order.
Subject to the above, the writ petition is allowed. No cost.
Order Date :- 30.7.2019/K.K. Maurya