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2003 DIGILAW 1882 (ALL)

Indrasan Singh v. S. P.

2003-08-23

Y.R.TRIPATHI

body2003
Y. R. TRIPATHI, J. ( 1 ) THIS writ petition has been filed for quashing the order dated 24. 12. 1982 passed by superintendent of Police, Bahraich as contained in Annexure-1 to the writ petition and for issue of a mandamus commanding the opposite parties not to make the premature retirement of the petitioner. ( 2 ) THE case of the petitioner, in short, is that his date of birth is 1. 6. 1929 and he was always under the impression that his said date of birth has been entered in his service record but suddenly he was served with the impugned order on 24. 12. 1982 to get his pension papers prepared. He has further averred that he did never furnish any information about his date of birth being 21. 2. 1925 and was also never informed as to how the said date was recorded in official papers as his date of birth. He has further alleged that he had passed vernacular final examination in the year 1944 and in the Official Gazette publishing his result as also in his certificate his date of birth is recorded as 1. 6. 1929. The petitioner has expressed his apprehension about manipulation with regard to his date of birth having been made in official records by some departmental officials with a view to harm him. ( 3 ) THE respondents, in their counter-affidavit, have alleged that the petitioner at the time of entering into service had given out his date of birth as 21. 2. 1925 and he did not produce his vernacular examination certificate as evidence of his date of birth. ( 4 ) I have heard learned counsel for the parties at length and have gone through the materials on record as also the service book of the petitioner that was produced by the opposite parties during the course of arguments. ( 5 ) IT is not disputed that the petitioner was appointed to the post of Constable on 22. 2,1947 when the minimum age of entry in service was 18 years. The service book which was prepared at the time of entry of the petitioner in service shows that his date of birth has been recorded as 21. 2. 1925. Learned counsel for the petitioner urged that the entry of date of birth of the petitioner in service book was made subsequently. The service book which was prepared at the time of entry of the petitioner in service shows that his date of birth has been recorded as 21. 2. 1925. Learned counsel for the petitioner urged that the entry of date of birth of the petitioner in service book was made subsequently. Taking me through Annexure-A-1 to the counter-affidavit, he urged that the entry of date of birth is in different ink and hand writing suggesting that this entry was not made when the service book was originally prepared. He also urged that Annexure-A-1 of the counter-affidavit shows that the petitioner had given out his age as 20 years and that the Civil Surgeon had certified it as 24 years. The main thrust of his argument was that when the petitioner had given out his age on approximation and an opinion of civil Surgeon had also been obtained about his age then how the actual date of birth of the petitioner was ascertained and recorded and if the actual date of birth of the petitioner was available then where was the occasion for the department to have made queries from the petitioner about his age as also to get his age certified by the Civil Surgeon. The learned standing counsel submitted that it is general practice to get medical certificate at the time of entry of a candidate in service and the petitioner was also referred for his medical examination in which the medical Officer-in-charge also certified his age. He drew my attention to the medical certificate given by Medical Officer-in-charge of Civil Station wherein the age of the petitioner, according to his own estimation, and the age which appeared to the Medical Officer-in-charge of Civil station in his estimation have been shown. It was in this perspective that the age of the petitioner as given out by him and as estimated by the Medical Officer have been shown in the service book of the petitioner. The medical certificate issued by the Medical Officer-in-charge of Civil station thus sufficiently explains the entries in the service book of the petitioner. It would also be pertinent to mention that the service is a contract and one acquires a right to enter into a contract only on attaining the age of majority, which is 18 years, according to Section 3 of the Indian majority Act, 1875. It would also be pertinent to mention that the service is a contract and one acquires a right to enter into a contract only on attaining the age of majority, which is 18 years, according to Section 3 of the Indian majority Act, 1875. It is not disputed that the petitioner was appointed to the post of Constable on 22. 2. 1947. Had the petitioner disclosed his date of birth as 1. 6. 1929 as stated by him, naturally he would not have become eligible for appointment when he was appointed. No reason or motive has been shown on the part of the official preparing the service book to have made entry of date of birth of the petitioner prejudicial to his interest, rather the fact that the petitioner by disclosing his date of birth as 1. 6. 1929 would have become ineligible for the appointment suggests that the petitioner himself must have concealed his actual date of birth and given out his date of birth as was beneficial to him to obtain entry into the service. The Uttar Pradesh recruitment to Services (Determination of Date of Birth) Rules, 1974 framed under Article 309 of the Constitution and having the force of law provides for determination of the correct date of birth or age of a Government servant. Its Rule 15 which specifically deals with the subject is as under : 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 of 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 of birth in any circumstances whatsoever. " ( 6 ) IT is not disputed that the petitioner has not passed High School or appeared in such examination. " ( 6 ) IT is not disputed that the petitioner has not passed High School or appeared in such examination. This being the position his date of birth recorded in the service book at the time of his entry into service shall, for all purpose in relation to his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, be deemed to be final and no plea for change of his date of birth can be entertained at the fag end of his service. The apex Court has also deprecated such practice on the part of the employees of the Government or its instrumentalities and in the case of Burn Standard Co. Ltd. and Ors. v. Shri Dinabandhu majumdar and Anr. , JT 1995 (4) SC 23, has held that : "entertainment by High Courts of writ applications made by employees of the Government orits instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is warranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extra ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so called newly found material. Extra ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his service Record, the very conduct of non-raising of any objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the high Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his service and Leave Record could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction entertain a writ application/ petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his service and Leave Record or Service Register with the avowed object of continuing in service beyond the normal period of his retirement. " ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. . . . . . . . . . . . . . When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclose his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date closed by the incumbent is accurate. ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would be employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate exception of other who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. " ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . we have no hesitation in reaching the conclusion that the Division bench was wholly unjustified in interfering with the order of the learned single Judge of the same court whereby it was held, in our view, rightly that the appellants writ application filed for correction of his date of birth at the fag end of his service career for avoiding his superannuation which was due, cannot be entertained. " ( 7 ) IN view of what has been stated above, I see no merit whatsoever in this writ petition and it is accordingly dismissed. No costs. . .