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2012 DIGILAW 267 (ALL)

TRIVENI PRASAD v. STATE OF U. P.

2012-01-31

RAN VIJAI SINGH

body2012
JUDGMENT Hon’ble Ran Vijai Singh, J.—Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 19.7.2005 and 31.8.2005, passed by respondent No. 3. vide order dated 19.7.2005, the information has been given to the petitioner, by the Executive Engineer (respondent No. 3), that the petitioner has been ordered to be retired on 31.8.2005, whereas by the subsequent order dated 31.8.2005, the petitioner’s representation made for correction of date of birth in the service book has been rejected, pursuant to the order of this Court dated 1.8.2005 passed in Writ Petition No. 52960 of 2005. 2. The facts giving rise to this case are that the petitioner was appointed as Class IV employee with respondent. In the service record the date of birth of the petitioner was recorded as 2.8.1945. The petitioner has applied for correction of date of birth in the service record on the ground that, in the Kutumb Register, the petitioner’s date of birth is different, but no decision was taken. Hence, he filed Writ Petition No. 52960 of 2005 for issuing a writ of mandamus directing the respondents to decide the petitioner’s representation. The said writ petition was disposed of by this Court on 1.8.2005 directing the concerned authority to decide the petitioner’s representation. Thereafter, the petitioner approached the respondent No. 3 alongwith the certified copy of the order of this Court and by the impugned order the respondent No. 3 has rejected the petitioner’s application on the ground that the date of birth recorded in the service book is correct and no correction is permissible at this stage. 3. Learned counsel for the petitioner while assailing the impugned order has submitted that the petitioner’s correct date of birth is 21.11.1953 and his elder brother is still in service. The petitioner being class IV employee was not aware of this fact, although he has signed the service book. In the submission of the learned counsel for the petitioner, the case of the petitioner ought to have been considered in the right perspective taking into consideration the recording of date of birth of the petitioner in the other records, like Kutumb Register etc. 4. In the submission of the learned counsel for the petitioner, the case of the petitioner ought to have been considered in the right perspective taking into consideration the recording of date of birth of the petitioner in the other records, like Kutumb Register etc. 4. Learned Standing Counsel appearing for the State respondents has submitted that for the purposes of retirement and continuation in service, the date of birth recorded in the service book shall be deemed to be correct and no infirmity can be attached with the impugned order. 5. I have heard the learned counsel for the petitioner and learned Standing Counsel and considered their submissions. 6. It is not in dispute that the petitioner is a Government servant and the petitioner’s retirement etc. is governed by U.P. Recruitment of Services (Determination of Date of Birth) Rules, 1974 (hereinafter referred to as the 1974 Rules). Rule 2 of the 1974 Rules discloses the conditions with regard to the correctness of the date of birth. For better appreciation the running language of Rule 2 of the Rules of 1974 as amended by first amendment in the year 1980 is reproduced below by splitting it into three parts. “(a) 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. (b) 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 to his service, including eligibility for promotion, superannuation, premature retirement or benefit and (c) No application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.” 7. After going through the sub-rules (a) and (b) of the 1974 Rules, it transpires that if the person has entered into service after passing High School examination, then the date of birth recorded in the High School Certificate shall be deemed to be correct, and if the person has entered into service without passing High School Examination, the date of birth recorded in the service book shall be deemed to be correct. 8. Here, in this case, undisputedly, petitioner has not passed High School examination and he has entered into service in the year 1979, and at that point of time his date of birth was recorded in the service book as 2nd August, 1945. In the counter-affidavit, a photo-stat copy of the cover page of the service book has been brought on record as Annexure ‘1’. From perusal of the same it transpires that the petitioner’s date of birth has been recorded as 2.8.1945 and that has been signed by the petitioner. Therefore, taking note of sub rule (b) of Rule 2 of 1974 Rules, the date of birth recorded in the service book shall be deemed to be correct, because deeming provision is made in a statute for the purposes of assuming a thing to be there, which, in fact, is not there. The view taken by me finds support from a judgment of the Apex Court in Sant Lal Gupta and others v. Madan Cooperative Group Housing Limited and others, 2010 (13) SCC 336 , wherein the Apex Court observed as under: “It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.” 9. Further reference may be given to Manorey @ Manohar v. Board of Revenue, U.P. and others, JT 2003 (3) SC 538. 10. So far as the present case is concerned, it is not in dispute that the petitioner’s retirement would be governed on the basis of the 1974 Rules, and Rule 2 (c) of the 1974 Rules provides that no application for correction of date of birth shall be entertained. 11. 10. So far as the present case is concerned, it is not in dispute that the petitioner’s retirement would be governed on the basis of the 1974 Rules, and Rule 2 (c) of the 1974 Rules provides that no application for correction of date of birth shall be entertained. 11. Otherwise also, the petitioner has approached the authority concerned at the fag end of service for correction of date of birth, therefore, the same would not be permissible in view of law laid down by the Apex Court in Union of India v. Harnam Singh, (1993) 2 SCC 162 ; State of Gujarat and others v. Vali Mohd. Dosabhai Sindhi, 2006 (6) SCC 537 ; Punjab and Haryana High Court at Chandigarh v. Megh Raj Garg and others, AIR 2010 SC 2295 ; and State of Madhya Pradesh and others v. Premlal Shrivas, 2011 (9) SCC 664 , wherein it has been held that no correction of date of birth in service record should be permitted at the fag end of service. 12. Taking note of the settled legal position, as discussed above, I do not find any illegality in the impugned order. The writ petition lacks merit and it is hereby dismissed. 13. After the order was passed, learned counsel for the petitioner submitted that till date, even the post-retiral dues have not been paid to the petitioner. Taking note of the petitioner’s submissions, the respondents are directed to pay the entire post-retiral dues for which the petitioner is entitled to within a period of two months from the date of receipt of certified copy of the order of this Court. ———————