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2013 DIGILAW 784 (ALL)

RAJ KUMARI v. STATE OF U. P.

2013-03-12

ANIL KUMAR

body2013
JUDGMENT Hon’ble Anil Kumar, J.—Heard Sri R.K. Singh, learned counsel for petitioner, learned State counsel and perused the record. By means of the present writ petition, the petitioner has challenged the impugned order/notice dated 30.5.2011 issued by Superintendent of Police, Lakhimpur Kheri/O.P.No. 2 in which it is mentioned that the petitioner is to retire from service on 30.6.2011 after attaining the age of superannuation. 2. Facts of the present case as submitted by learned counsel for petitioner are that the petitioner was initially appointed on the post of peon on 1.6.1987 under Dying in Harness Rules and posted under O.P. No. 3. It is further submitted by learned counsel for petitioner that at that time of appointment on compassionate ground in the year 1987, the petitioner who was an illiterate woman, as per the direction given by the authority concerned, had appeared before the medical board and after examining her, it was found that she was 30 to 35 years old. Accordingly, on the basis of the medical report submitted by Medical Superintendent, Kheri, her date of birth was recorded in her service book. Further, when the notice dated 30th of May, 2011 (Annexure 1) issued by Superintendent of Police, Kheri has been served on the petitioner that she was to retire from services after attaining the age of superannuation on 30.6.2011, for the first time it came to her knowledge that in her service book against the column of date of birth, it is recorded that she is 35 years 11 months and 10 days old at the time of entering into services and taking into the said fact, the order/notice (Annexure 1) is issued. 3. Accordingly, it is submitted by learned counsel for petitioner that prior to issuance of the order/notice dated 30.5.2011 by the O.P. No. 2, the petitioner has no knowledge in respect to recording the fact in regard to her date of birth, and when the same came to her knowledge after issuing the impugned order/notice, the petitioner represented her case that she is being wrongly retired from services w.e.f. 30.6.2011 as her age mentioned in the service book that she was 35 years 11 months and 10 days old at the time of entering in service is incorrect and wrong, so the impugned order/notice, liable to be set aside. 4. 4. Learned State counsel on the other hand defending the impugned order, submits that the stand taken by the petitioner that for the first time, she came to know in respect to recording of date of birth in her service book after the service of the order/notice dated 30.5.2011, is totally incorrect, as in the year 2009 an application has been moved by petitioner for nomination of her sons for service benefit and at the point of time, she was aware in respect to the fact that her age is recorded in the service book as 35 years 11 months 10 days on the basis of medical report submitted by Medical Superintendent, Kheri. So, the submission made by learned counsel for petitioner that after issuance of the order/notice dated 30.5.2011 the said fact comes to her knowledge is incorrect and wrong argument, liable to be rejected. 5. I have heard learned counsel for parties and perused the record. So, the submission made by learned counsel for petitioner that after issuance of the order/notice dated 30.5.2011 the said fact comes to her knowledge is incorrect and wrong argument, liable to be rejected. 5. I have heard learned counsel for parties and perused the record. The Rule 2 of the Uttar Pradesh Recruitment to Service (Determination of Date of Birth) Rules, 1974, which reads 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 agree 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 age in any circumstances whatsoever.” Thus, as per the abovesaid Rules and going through the record and taking into consideration the document which is annexed by the petitioner i.e. page No. 15 of the service book alongwith writ petition (as annexure), it is clear that at the time of entry in the service, in the service record it is recorded that she was 35 years 11 months and 10 days on the basis of the medical examination done by the Medical Board and report submitted by the Medical Superintendent, Kheri, taking into consideration the said material notice/order dated 30.5.2011 issued by O.P. No. 2 that she is to retire from service after attaining the age of superannuation on 30.6.2011. 6. 6. Submission made on behalf of petitioner that prior to issuance of impugned order/notice dated 30.5.2011 that she is to retire on 30.6.2011, petitioner has no knowledge that at the time of entering into services on compassionate ground her age has been mentioned in the service record as 35 years 11 months and 10 days after medical examination, is totally incorrect and wrong fact because from the record it is clearly established that in the year 2009 (16.2.2009) she has made an application for nomination of her two sons for service benefit and at that time she was fully aware of the matter in respect of her date of birth recorded in the service record. Recording date of birth in service particulars of an employee is necessary for various purposes. An employee’s age is relevant both for his/her initial employment as well as for his/her end of tenure on superannuation. That is why the date of birth is recorded in the relevant register of service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement. 7. Further, it is settled proposition of law that the date of birth entered in the service record cannot be corrected at a belated stage. Where the date of birth entry remains in existence for a long time, the same does not require to be disturbed on any ground whatsoever. The onus is on the employee-applicant to prove about the wrong recording of his/her date of birth in his/her service record by adducing irrefutable evidence. Court has to insist for clear, clinching and unimpeachable evidence in this regard because the relief sought by an employee, if granted, may entail chain reaction hampering promotional prospects of junior officers and may cause an irreparable injury to them (See: U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 and State of Madhya Pradesh and others v. Mohan Lal Sharma, (2002) 7 SCC 719 ) 8. Thus, keeping into said facts and also the settled law on the point in issue that a person cannot be allowed to challenge his/her date of birth at the verge of retirement as held by Hon’ble the Apex Court in the case of Secretary and Commissioner, Home Department and others v. R. Kirubakaran, 1994 Supp. Thus, keeping into said facts and also the settled law on the point in issue that a person cannot be allowed to challenge his/her date of birth at the verge of retirement as held by Hon’ble the Apex Court in the case of Secretary and Commissioner, Home Department and others v. R. Kirubakaran, 1994 Supp. (1) SCC 155, in the case of U.P. State and another v. Shiv Narain Upadhyay, (2005) 6 SCC 49 and in the case of State of M.P. and others v. Premlal Shrivas, JT 2011 (10) SC 519. I do not find any illegality or infirmity in the impugned order/notice dated 30.5.2011 (Annexure 1). For the foregoing reasons, the writ petition lacks merit and is dismissed. ——————