RAM RATAN v. DISTRICT BASIC SHIKSHA ADHIKARI — 1998 DIGILAW 1292 (ALL)

( 1 ) THE petitioner was appointed in service on 15. 1. 1960 when his date of birth was recorded in the service record as 5. 2. 1932. Sometimes in 1984, the petitioner alleged that he learnt that his date of birth was wrongly recorded in his service record. The District basic Shiksha Adhikari by his letter dated 4. 4. 1984 sent the concerned application of the petitioner to the Chief Medical Officer, hamirpur. The Chief Medical Officer, Hamirpur examined the petitioner on 30th August, 1984 and issued a certificate that the petitioner was found to be aged about 45 years on the date. The date of birth of the petitioner as recorded in service record was struck off at the time of audit. He also contends that pursuant to the order of the district Basic Education Officer relying upon the certificate of the chief Medical Officer, the date of birth was correctly recorded as on 30 the August, 1939 by some officer. In such circumstances the order dated 12th May, 1992 contained in Annexure-7 to the writ petition seeking to retire the petitioner on 29. 2. 1992 has since been challenged by the petition in this writ petition. ( 2 ) MR. R. K. Kakkar, learned counsel for the petitioner submits that since the petitioner did not read. in any school and was not in possession of any school leaving certificate, therefore, his date of birth should be decided on the basis of a certificate from the Civil surgeon of the district ,therefore, correction of the date of birth in the service record has rightly been done. He next contends that since the respondents themselves had referred the matter to the Chief Medical officer and had corrected the date of birth in the service record, it is no more open to the respondents to retire the petitioner on; the basis of the date of birth recorded at the time of his entry into the service since been struck off. Therefore, the petitioner could not be retired on the basis of his date of birth as on 5th February, 1932. ( 3 ) MR. Therefore, the petitioner could not be retired on the basis of his date of birth as on 5th February, 1932. ( 3 ) MR. Ajay Bharot, learned Brief Holder for the State of U. P. on the other hand contends that the date of birth is to be recorded on first entry into service pursuant to the rules governing the determination of date of birth, as contained in the paragraph 14 of the old Rules replaced by paragraph 14 which is quoted in the said Government order dated 23rd August, 1965, a copy of which is Annexure-8 to the writ petition. According to him it is not a case of recording of the date of birth. On the other hand it is an alteration of the date of birth recorded in the service record after paragraph 14 had come into effect, therefore, it would be governed by paragraph 14 (4) of the said Rules. The service record does not show that the date of birth was corrected by the District Basic Education Officer. On the other hand in ;the writ petition itself, the petitioner has contended that the same was corrected at the time of audit. In ;the counter affidavit, it has been pointed out that the same was struck off in 1990 at the time of audit. The fact that it was so recorded in 1984 has not been admitted. Thus the said fact remains a disputed question of fact. A perusal of the service record annexed in the writ petition does not take away the question from the ambit of disputed question of fact. Therefore, this Court cannot enter into such fact. He also contends that at the fag end of the career, the question cannot be raised as has been sought to be raised in the present writ petition. ( 4 ) I have heard both the learned counsel at length. The fact remains that the petitioner joined service on 15. 1. 1960 when his date of birth was recorded as on 5. 2. 1932. This fact is not dispurted that for the first time in 1984, the petitioner objected to the recording of; the said date of birth. It is about after 24 years, the objection has been raised. The date of birth was allowed to continue in service record for a number of years namely, 24 years. 2. 1932. This fact is not dispurted that for the first time in 1984, the petitioner objected to the recording of; the said date of birth. It is about after 24 years, the objection has been raised. The date of birth was allowed to continue in service record for a number of years namely, 24 years. The service record shows that the same bears the signature of the petitioner, where the date of birth was recorded in Hindi. The signature was also in Hindi. It is not pleaded that the petitioner is unable to read Hindi. The signature was also in Hindi. It is not pleaded that the petitioner is unable to read Hindi. The signature in Hindi pre-supposes that the petitioner did not have knowledge that his date of birth was recorded wrongly in his service record. ( 5 ) ON; the basis of his application, the petitionrer was sent to the chief Medical Officer. The Chief Medical Officer had issued a certificate to the extent that he had round to the petitioner to be 45 years of age. He was not medically examined by any medical board. It does not appear that there was any scientific test carried on for determining the age either by the ocification test or such other scientific test. The certificate appears to be an assessment based on the opinion of the Chief Medical Officer. ( 6 ) THEN again the endorsement in the service record appears to be made in a column, which is not meant for making such endorsement in between the lines of different items mentioned in the said column. The seal appended there- to is illegible. But the text of the endorsement says that pursuant to a particular letter containing the order of the District Basic Education Officer, the date of birth was corrected. This is not free from suspicion. However, even it the same is admitted to be correct still then in the counter affidavit the same has been disputed. Sitting in writ jurisdiction, this court cannot enter into determination of the disputed question of fact as to whether the endorsement was genuine or the petitioner was really 45 years of age on 30th August 1984 or not. ( 7 ) HOWEVER, the Government order dated 23rd August, 1965 as was in force when the date of birth was sought to be altered in the service record. Mr. ( 7 ) HOWEVER, the Government order dated 23rd August, 1965 as was in force when the date of birth was sought to be altered in the service record. Mr. Kakkar had relied on sub paragraph (2) of paragraph 14 quoted in ;the Government order dated 23rd August, 1965 to support his contention that the date of birth of ;the petitioner should be decided in the manner provided therein. In order to appreciate the said contention, it may be useful to quote the provisions of paragraph 14 hereafter: "14. (1) Record of age- It is important that age of a candidate for direct recruitment should be correctly recorded. This can be done at the time of appointment and appointing authorities shall, when making first appointment, obtain for permanent record evidence regarding the correct of the candidate. The date of birth or age recorded in the High School examination certificate or any other examination recognised as equivalent thereto should ordinarily be accepted. Where the minimum educational qualification for recruitment to a service or ;post is a qualification lower than; the high School examination the date of birth, if any recorded in the certificate of that examination should be accepted as the date of birth of the candidate. (2) If there is any reasons to doubt the accuracy of the date of birth or age as recorded in the aforesaid certificates, or where none of the aforesaid certificates, or where none of the aforesaid certificate is available, or if the date of birth or age is not indicated in any such certificate, the date of birth or age should be determined with reference to the additional evidence in the following order of preference. (a) copy of the scholars record (School leaving certificate) showing the date of birth at the time of first admission to a school; or (b) Certificate from the Civil Surgeon of the district. Provided that where the certificate or other evidence in the following order of preference. (a) copy of the scholars record (School leaving certificate) showing the date of birth at the time of first admission to a school; or (b) Certificate from the Civil Surgeon of the district. Provided that where the certificate or other evidence in the following order of preference. (a) copy of the scholars record (School leaving certificate) showing the date of birth at the time of first admission to a school; or (b) Certificate from the Civil Surgeon of the district. Provided that where the certificate or other evidence referred to in; the foregoing sub paragraphs does not indicate a persons date of birth but gives only his age, his date of birth should be determined in accordance with the method prescribed in para 127-A of the financial Hand Book, Volume V, Part I. 3. The date of birth of candidates other than those already in government service, applying for posts\services under the government shall also be determined in accordance with sub-paras 1 and 2 above. The date of birth of candidates already in government service will; be the date as recorded in their service books. 4. Alteration of date of birth-when the date of birth recorded in service book which has ;been attested and has been stood unchallenged for a number of years, it should not be altered except in very exceptional circumstances. " ( 8 ) A perusal of the said provisions indicate that sub -paragraph (2) is to be resorted to in the context of sub paragraph (1) for determining the age at the time of appointment It is not a provision independent of sub-paragraph (1), therefore, it cannot be resorted to for the purpose of alteration in ;the date of birth recorded in ;the service record. The provision for alteration of the age as provided in paragraph 9 (4) lays down that it can be done only in a very exceptional circumstances. The circumstances, has been qualified with two adjectives namely: very and exceptional. The circumstances has to be exceptional. Exceptional circumstances is an exception to normal rules. The exceptional circumstances has also been qualified to the extent to be very exceptional. This very expression indicates that such alteration could be resorted to sparingly when there are admittedely glaring discrepancies either in ;the certificate or something else which might lead to a conclusion to be a circumstance, which is exceptional to a degree of being very exceptional i. e. something others than ordinary or in other words extra -ordinary. This very expression indicates that such alteration could be resorted to sparingly when there are admittedely glaring discrepancies either in ;the certificate or something else which might lead to a conclusion to be a circumstance, which is exceptional to a degree of being very exceptional i. e. something others than ordinary or in other words extra -ordinary. ( 9 ) WHETHER in the facts and circumstances, the ;petitioners case could be brought within the ambit of Sub-paragraph 9 (4) and said to be a very exceptional circumstances, is required to be examined. As observed earlier since there are reasons for suspicion and that the petitioner had allowed the date of birth recorded as on 5. 2. 1932 was struck off only in 1990 that too at the time of audit and on ;the basis of a certificate of the Chief Medical Officer who had assessed or opined about the age of the petitioner without any scientific test, could not be said to be an exceptional circumstances in the nature of being very exceptional. It does not seem that the facts emerging from the present case cannot be termed as a very exceptional circumstances. ( 10 ) THEN Mr. Kakkar had relied on a decision in the case of Jiwan kishore Vs. Delhi Transport Corporation and another, AIR 1980 supreme Court 1251 in support of his contention, wherein it was observed that there being wide discrepancy in the date of birth and the petitioner was examined by a Medical Board which through scientific test determined the age of petitioner at 51 years. The court had expressed that there was no reason to ignore the scientific fixation of the age when ;the records were flagrantly conflicting and therefore, the age was fixed on the basis of the scientific test by the medical board by the Apex court. ( 11 ) THE said decision does not appear to lay down any ratio with regard to the determination of the age in ;such circumstances, since the said decision was obtained by; the agreement of the parties. Inasmuch as in the said decision it was recorded that "we are not impressed with the suggestion that we could pre-fix the age. . . . . . . . . . . . . . . . . . . . . . . . . . . Inasmuch as in the said decision it was recorded that "we are not impressed with the suggestion that we could pre-fix the age. . . . . . . . . . . . . . . . . . . . . . . . . . . We are not going into its vires in this case as both sides agree that if the court fixes the age as per the Medical boards determination, they will accept and abide by it. On this footing we dispose of the appeal in partial allowance and set aside the order of retirement and further direct that the appellant be continued in service with all the consequential benefits as a regular employee until 12. 6. 1982". The said decision being a decision invited by agreement of parties and having not laid down any ratio expressely indicating the same in the order, the said decision does not help Mr. Kakkar in his contention as has been sought to be made out. ( 12 ) ON the other hand in the case of Burn Standard Company Ltd. and ors. Vs. Shri Dinabandhu Majumdar and anr. , JT 1995 (4) S. C. 23, the Apex Court had depricated the correction of date of birth through writ petition at the fag end of ;the service career and had held that such a writ petition cannot be entertained. In ;the present case, the writ petition has been filed only after the impugned order seeking to retire the petitioner on 29. 2. 1992 was issued namely the writ petition was presented on 23rd July, 1992 not only at the fag end of his career but also after the orders of retirement had taken effect. ( 13 ) IN view of the above observations, it is not necessary to go into the other questions raised by the respective counsel. ( 14 ) IN the result, the writ petition fails and is accordingly dismissed. However there shall be no order as to costs. ( 15 ) MR. Kakkar at this stage submitted that the retiral benefits have not been paid to the petitioner. The respondents may be directed to pay the retiral benefits of the petitioner at the earliest. Mr. ( 14 ) IN the result, the writ petition fails and is accordingly dismissed. However there shall be no order as to costs. ( 15 ) MR. Kakkar at this stage submitted that the retiral benefits have not been paid to the petitioner. The respondents may be directed to pay the retiral benefits of the petitioner at the earliest. Mr. Ajay bhanot, learned Brief Holder for the State in his usual fairness does not object to the said prayer in view of the Ivth prayer (iv) contained in the writ petition. Therefore, the respondents are hereby expected to make available all retiral benefits as are admissible in law to the petitioner including arrears and current pension, if payable together with all other service retirement benefits as early as possible preferably within a ;period of six months from the date a copy of this order is communicated to the respondents. ( 16 ) LET a certified copy of this order be issued to the learned counsel for the petitioner on paymnent of usual charges in the ordinary course. .