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2012 DIGILAW 749 (MP)

Mahesh Chandra Khare v. Municipal Council, Bhind

2012-07-25

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2012
JUDGMENT A. K. SHRIVASTAVA, J. 1. The order passed by the learned Writ Court dated 27/04/12 in W.P.No.2985/12(S) dismissing the writ petition of the appellant has been assailed by the appellant by filing this writ appeal under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005. 2. Indeed, the matter in dispute is in regard to the date of birth. According to the learned counsel, the correct date of birth of the appellant is 10/11/55 but incorrectly in the service record, the respondents recorded it as 23/04/52 and this disparity came into his knowledge only when he received the notice of retirement one year prior to the retirement and, hence, he drew the attention of his employer that his correct date of birth is 10/11/55 and he may not be retired. However, the request of the appellant was not accepted by the respondents and, therefore, he was constrained to file the writ petition which has been dismissed by the learned Writ Court by the impugned order. 3. Learned counsel submits that there is overwhelming record to demonstrate that the correct date of birth of the appellant is 10/11/55 and in this regard, our attention has been drawn to the school leaving certificate, Annexure P/9 in which the date of birth 10/11/55 has been mentioned. Thus, according to the learned counsel by allowing this appeal, the impugned order be set aside and the appellant be permitted to serve in the department by treating his age on the basis of date of birth 10/11/55. 4. Considered the submissions of learned counsel for the appellant. 5. Indeed, the learned Writ Court by placing reliance on the decision of Supreme Court Union of India Vs. Harnam Singh, (1993) 2 SCC 162 did not find merit in the case and the petition was dismissed. 6. By concurring with the view taken by learned Writ Court, we may, further add that if the averement of the appellant is taken to be true that his date of birth is 10/11/55, in that case, on the date of his entrance in the department, i.e., on 16/06/70, he was a minor boy having age in between 15 to 16 years. Hence, it is apparent that by submitting a concocted document to serve some more years, this false objection has been raised at the fag end of the service career by the appellant on the ground that his date of birth has been wrongly recorded in the service record by the department. Thus, the appellant cannot be permitted to take benefit of his own wrong. 7. According to us, at the time of entrance in the department, no body would be after appellant or was biased so as to record his incorrect date of birth and, therefore, naturally it can be inferred that the date of birth which was given by the appellant was accepted by the employer and recorded in the service book. 8. We do not find any merit in the contention of learned counsel for the appellant that the school leaving certificate in duplicate was submitted by the appellant wherein the date of birth 10/11/55 of appellant has been mentioned. On bare perusal of the school leaving certificate (duplicate), it is gathered that it was issued on 10/04/89. This school leaving certificate was obtained when the appellant was in service but there is nothing on record that why this certificate was not filed earlier. 9. We also do not find any merit in the contention of learned counsel that the school leaving certificate was obtained in duplicate. There is no averment in the petition that the original was misplaced and why there was an occasion to obtain the duplicate certificate. In this backdrop, the hallmark and authenticity of the school leaving certificate dated 10/04/89 which was placed before the learned Writ Court as Annexure P/9 is surrounded in black clouds. 10. Learned counsel for the appellant has further placed reliance on the certificate of Class V (Annexure P/8) wherein the date of birth 10/11/55 is mentioned. But, there is nothing on record to show that this certificate was ever submitted at the time of entrance in the service in the department by the appellant. Had it been so filed, certainly, he would not have been appointed because he was on that date, a minor boy having the age in between 15 to 16 years. 11. This appeal is devoid of any merit and the same is hereby dismissed.