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2003 DIGILAW 55 (ALL)

BHANMATI v. STATE OF U. P.

2003-01-10

RAKESH TIWARI

body2003
RAKESH TIWARI, J. ( 1 ) HEARD learned counsel for the parties. ( 2 ) THIS writ petition arises out of notice of retirement dated 21st April, 1992, informing the petitioner that according to the date of birth entered in her service book as 1. 7. 1934 on the basis of entry in the kutumb register, she would be attaining the age of 58 years on 30. 6. 1992. ( 3 ) THE petitioner was given a compassionate appointment as Chhetra Sahayak in place of her husband under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in harness Rules, 1974, who was posted as Deputy Forest Ranger. He died during the employment on 23. 1. 1990 in a truck accident. ( 4 ) IT is submitted by the learned counsel for the petitioner that the petitioner did not have school education, hence she was asked to give fitness/age certificate from Chief Medical Officer at the time of joining of service. Chief Medical Officer, Basti, issued said certificate stating her age as 45 years at the time of joining. Photo-stat copy of the said certificate, Annexure-4 to the writ petition is as under : "certificate of Fitness For Government Service" (See Rule 10 of Fundamental Rules)I do hereby certify that I have examined Smt. Bhanmatt Devi a candidate for appointment in the forest Department and cannot discover any constitutional weakness or bodily infirmity except n. D. I do not consider this a disqualification for appointment in the forest department. Candidatess age according to his/her statement is 45 years and by appearance forty-five years. Vaccinated for small pox. Signature attested : sd. Illegiblechief Medical Officer, officer. Sd. Illegiblechief Medical basti Basti dated :" ( 5 ) THE petitioner is a Government servant. Rule 2 of the V. P. Recruitment Service (Determination of the Date of Birth) Rules, 1974, applies to her case, which reads as follows : "2. Vaccinated for small pox. Signature attested : sd. Illegiblechief Medical Officer, officer. Sd. Illegiblechief Medical basti Basti dated :" ( 5 ) THE petitioner is a Government servant. Rule 2 of the V. P. Recruitment Service (Determination of the Date of Birth) Rules, 1974, applies to her case, which reads as follows : "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 High School or equivalent examination at the time of his entry into the Government service or where the Government servant has not passed any such examination as aforesaid or has passed any such examination after jointing the service, the date of birth of 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 of 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. " ( 6 ) THE validity of these Rules has not been challenged in the writ petition. A perusal of Rule 2 clearly stipulates that no application or representation shall be entertained for correcting any date or age record and the entry made in the service book shall be deemed to be the correct date of birth. The plea of the petitioner that her date of birth was wrongly recorded is highly belated and has been taken after she has received notice of superannuation. ( 7 ) COUNSEL for the petitioner states that she had joined the service of forest department on 21. 5. 1990 and it was expected that her age should be entered in her service record as 1945 on the basis of medical certificate. It is further submitted that on coming to know for the first time on receipt of notice dated 21. 4. 1993 that her date of birth is recorded as 1,7. 1934, she made an application for correction of the entry in the kutumb registrar maintained under the U. P. Panchayat Raj Act in the village of her husband. After enquiry the A. D. O. , Panchayat corrected the entry in the Kutumb Register vide order dated 30. 6. 4. 1993 that her date of birth is recorded as 1,7. 1934, she made an application for correction of the entry in the kutumb registrar maintained under the U. P. Panchayat Raj Act in the village of her husband. After enquiry the A. D. O. , Panchayat corrected the entry in the Kutumb Register vide order dated 30. 6. 1992 correcting date of birth of the petitioner from 1934 to 1945. A copy of the corrected kutumb register has been filed as annexure-5 to the writ petition. ( 8 ) AFTER the correction was made, the petitioner moved an application before respondent No. 2 along with the corrected copy of the kutumb register requesting him to withdraw the notice of retirement dated 21. 4. 1992 and correct the date of birth in her service record and that she may be permitted to continue till she attains the actual age of her retirement. Since respondent No. 2 refused to allow the application or to make any order thereon as prayed by her, she has filed this writ petition. ( 9 ) LEARNED counsel for the respondents submits that the medical certificate produced by the petitioner (Annexure-4 to the writ petition) was prepared on the basis of her own statement before the Chief Medical Officer and her appearance. He submits that her statement and the judgment of her appearance made by the Chief Medical Officer cannot be relied upon or could be said to be authentic piece of evidence of her real age. He states that the medical certificate was got prepared by the petitioner for her own benefit to remain in service for more years after actually reaching the age of superannuation and cannot be relied upon. ( 10 ) LEARNED counsel for the respondents further submits that medical certificate should have been prepared after medical examination of ossification test of bones of the petitioner and not on the basis of her statement and outer appearance, hence the medical certificate which had been produced by the petitioner had no relevance for entry of her date of birth in the service record and it does not reflex or approximate actual age. He again submits that in fact when the medical certificate produced by the petitioner was disbelieved, she was asked either to produce the kutumb Register or school leaving certificate. He again submits that in fact when the medical certificate produced by the petitioner was disbelieved, she was asked either to produce the kutumb Register or school leaving certificate. The petitioner did not produce school leaving certificate as she had no schooling but produced Kutumb Register on the basis of which her date of birth was recorded as the year 1934, whereas in the copy of the Kutumb Register filed by the petitioner as Annexure-5 to the writ petition, the date of birth has wrongly been shown by manipulation as the year of her date of birth 1945 after cutting 1934. Since the medical certificate produced by the petitioner was not found authentic, her date of birth was recorded in her service book on the basis of the Kutumb Register as 1. 7. 1934. ( 11 ) FROM the facts stated above, admittedly at the time of entry in service, the date of birth of the petitioner was recorded as 1. 7. 1934. She had got her date of birth corrected in the Kutumb register after she had received the notice of retirement. In such a case, the date of birth recorded in the service book at the time of entry in service would be the relevant entry on the basis of which such employee is to be superannuated. ( 12 ) IN State of Uttaranchal and Ors. v. Pitamber Dutt Semwal, 2002 (1) AWC 429 (SC) : 2002 (92) FLR 773, a Division Bench of the Apex Court has held that the date of birth cannot be corrected after receipt of notice of superannuation. ( 13 ) EVEN otherwise in para 9 of the writ petition itself, the petitioner has stated that : "she is being retired on the basis of incorrect entry of her date of birth in the Kutumb Register of her husbands village which cannot be a proof of her date of birth. " This in other words, means that entry in the Kutumb Register even according to the petitioner is not incorrigible proof of her date of birth. ( 14 ) FOR fixation of correct date of birth/age, either ossification test of bones or bone narrow test ought to have been conducted. The medical certificate appended by the petitioner is undated and the Chief Medical Officer has recorded her age as 45 years according to her own statement. ( 14 ) FOR fixation of correct date of birth/age, either ossification test of bones or bone narrow test ought to have been conducted. The medical certificate appended by the petitioner is undated and the Chief Medical Officer has recorded her age as 45 years according to her own statement. The medical certificate is also not incorrigible proof of age or date of birth, as it has not been issued after scientific measurement of age of the bones by ossification test, hence cannot be relied upon. ( 15 ) IN Adhishasi Abhiyanta Electricity Rihand and Hydel Civil Division U. P. State Electricity board Allahabad and Anr. v. Shitla Prasad and Anr. , 1994 AWC 468, this Court has held that : "finality attaches to the date of birth as recorded in the service book and the same can not be disturbed on a subsequent plea by the employee that it has been wrongly recorded. The date of birth recorded in the service book of an employee is final and shall be taken to be his correct date of birth. " ( 16 ) IN view of the law laid at rest by the Apex Court that any change in the date of birth after entry in service cannot be the basis of retirement, I find no illegality in the impugned notice of retirement dated 21. 4. 1992. Further, no ground for interference has been made out by the petitioner for interference under Article 226 of the Constitution of India. In this view of the matter, the writ petition is dismissed. The interim order dated 10. 6. 1992 is vacated. As a result, the petitioner will be deemed to have retired from service on the basis of entry in the service book as 1. 7. 1934 and is not entitled to any benefit of service thereafter under the interim orders of this Court. ( 17 ) NO order as to costs. .