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1980 DIGILAW 790 (ALL)

Narain Bux Singh v. State of U. P

1980-09-02

K.S.VERMA, T.S.MISRA

body1980
JUDGMENT K.S. Verma, J. - In this petition the petitioner has prayed that the order of retirement dated 13th February, 1980 (Annexure-2 to the writ petition) is liable to be quashed on the ground that he has not as a matter of fact, reached the age of superannuation. 2. The facts giving rise to the petition are that the petitioner was recruited as a constable in the U.P. Civil Police in the year 1941, after doing his Vernacular Middle Examination. In course of time he was promoted as Head Constable and then as sub-Inspector. The averment in the writ petition is that at the time of recruitment, although he had passed the Vernacular Middle Examination, he was not required to furnish the certificate and that his record mentioned 1921 as the year of birth. It also appears from the record that the petitioner's date of birth as mentioned in the Vernacular Final Examination's Certificate is 12th July, 1923. It has been filed as Annexure-1 to that writ petition. The petitioner also passed the High School Examination in the year 1955 and in the High School Certificate his date of birth is given as 12th July, 1923. The grievance of the petitioner is that his date of birth as given the Vernacular Final Examination certificate or in the High School Examination certificate should be deemed to be the correct age for purposes of determining his age of superannuation. It appears that the petitioner was required to retire with effect from 13th February, 1980 treating 1921 as the year of birth. The contention of the petitioner is that in view of the U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974, the date of birth in the case of the petitioner should be treated as one given in the High School Examination Certificate or any other equivalent examination certificate. The contention is that since the petitioner's date of birth is given as 12th July, 1923 in the Vernacular Final Examination certificate as also in the High School Examination certificate, his date of birth should be deemed to be 12th July, 1923 in view of Rule 2 of the Rules. The contention is that since the petitioner's date of birth is given as 12th July, 1923 in the Vernacular Final Examination certificate as also in the High School Examination certificate, his date of birth should be deemed to be 12th July, 1923 in view of Rule 2 of the Rules. The relevant rule is as under:- "The 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.........." The argument of the learned counsel for the petitioner is that the deeming clause in Rule 2 makes it incumbent on the State Government to treat the date of birth given in the High School Examination certificate as the correct date of birth for purposes of superannuation. 3. On behalf of the State it was strenuously contended that at the time of recruitment the year of birth of the petitioner was recorded as 1921 and that was done by the Civil Surgeon after medical examination to which he had appended his thumb impression. On this basis it is contended that the claim of the petitioner that the date of his birth should be treated as 12th July, 1923 is not correct. 4. In the circumstances narrated above we have to see what is the effect of a deeming clause in a statute. In this respect mention may be made to Commissioner of Income-Tax, Bombay v. Bombay Trust Corporation ( AIR 1930 PC 54 ): (1930 All LJ 73). The observations of Viscount Dunedin on this aspect of the matter may be quoted as follows:- "Now when a person is "deemed to be" something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were." Applying the principle quoted above, we come to the conclusion that for the purposes of determining the age of superannuation the date of birth mentioned in the High School or equivalent examination would be treated as the date of birth as against entry in any other record. 5. The principle enunciated by the Privy Council referred to above was approved of by the Supreme Court in K. Kamraja nadar v. Kunju Thevar ( AIR 1958 SC 687 ). 5. The principle enunciated by the Privy Council referred to above was approved of by the Supreme Court in K. Kamraja nadar v. Kunju Thevar ( AIR 1958 SC 687 ). According to the said decision a deeming provision creates a legal fiction and the effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. This aspect again came up for consideration before the Supreme Court in Additional Income-Tax Officer v. E. Alfred ( AIR 1962 SC 663 ). The Court held that when a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact it is not. 6. After having considered the arguments advanced on behalf of the parties, we are of the view that the deeming clause contained in Rule 2 will hold the field as against any entry to the contrary in any other record. If a Government servant has passed the High School Examination or any equivalent examination, the date of birth recorded in such certificate shall be deemed to be the date of birth for the purposes of superannuation. In view of the deeming clause contained in Rule 2 of the Rules it is not possible to accept the contention of the learned counsel for the opposite parties. 7. for the reasons stated above, the petition is allowed and the order dated 13th February, 1980, contained in Annexure-3 to the writ petition, is quashed. The petitioner shall be entitled to his costs.