UTTARAKHAND POWER CORPORATION LTD. Vs. BHAGWAN SINGH RANA
LAWS(UTN)-2012-2-41
HIGH COURT OF UTTARAKHAND
Decided on February 29,2012

UTTARAKHAND POWER CORPORATION LTD. Appellant
VERSUS
Bhagwan Singh Rana Respondents

JUDGEMENT

Barin Ghosh, J. - (1.) THE respondent -writ petitioner filed a writ petition in this Court on 22nd September, 2010. Subject matter of challenge in the writ petition was two orders. dated 7th October, 2004 and 19th July, 2010. By the order dated 7th October, 2004, it was held out to the respondent -writ petitioner also that in the service record of the respondent -writ petitioner, his date of birth was shown as 9th September, 1951, and that, the same was ascertained on the basis of the medical report, which was pasted on the service record of the respondent -writ petitioner, and that, for all practical purposes, the date of birth of the respondent - writ petitioner shall be reckoned as 9th September, 1951. By the order dated 19th July, 2010, it was held out that the representation of the respondent -writ petitioner dated 16th January, 2010 is not entertainable. In his representation dated 16th January, 2010, the respondent -writ petitioner contended that his date of birth is 2nd March, 1953 and the same is evidenced, amongst others., from many a documents upon which he sought to rely, including school leaving certificate issued prior to his entering into the service. In the said representation, respondent -petitioner also held out that in the seniority list of the employees, as that of the respondent -petitioner, it was shown that the date of birth of the respondent -petitioner is 2nd March, 1953. It was contended that the seniority list made and published, prior to 7th October, 2004 as well as subsequent to 7th October, 2004, indicates that the date of birth of the respondent -petitioner is 2nd March, 1953.
(2.) IN the circumstances, the question that came for consideration before the writ Court was whether in the service record the date of birth of the respondent -petitioner was entered as 9th September, 1951 and whether the same could, at all, be altered subsequent thereto. Principally, on the ground that when the date of birth was fixed on the basis of medical report, two years. ' variation is not unjust and, accordingly, with the pronouncement that the respondent -petitioner should be deemed to have been born on 2nd March, 1953, the writ petition was disposed of.
(3.) WHILE coming to the said conclusion, as it appears. to us, the learned Judge, who dealt with the writ petition, did not take notice of certain relevant facts including the fact that the respondent -petitioner joined the work charge establishment of the State of Uttar Pradesh on 25th November, 1969, and that, despite receiving the letter dated 7th October, 2004, respondent -petitioner did not question the same for a period of almost six years and, in the meantime, in between 7th October, 2004 and the date of the presentation of the writ petition, service records of the respondent -petitioner were destroyed. In the event the respondent -writ petitioner was born on 2nd March, 1953, he could not enter into a contract of employment on 25th November, 1969, since under the Contract Act, only a major, declared as such by law, is entitled to enter into a contract of employment and by the Majority Act, the age of 18 has been prescribed for a major. Therefore, it must be presumed that for the benefit of the respondent -writ petitioner, the age certified in the medical report was accepted in order to enable the respondent -writ petitioner to join the work charge department of the State. Once the respondent -writ petitioner obtains the said benefit, he could not be given any other benefit which would negate the benefit he has already obtained. However, the most crucial circumstance, which, according to us, was overlooked, is the conduct of the respondent -writ petitioner. He received a letter dated 7th October, 2004 and did not raise any objection in relation thereto. He approached the Court almost six yeaRs. after receiving the said letter dated 7th October, 2004. Prior thereto, he made a representation on 16th January, 2010. By that time, almost five yeaRs. had passed from the date of the letter dated 7th October, 2004. In the body of the petition, the contents of the letter dated 7th October, 2004 have not been challenged. In other words, in the body of the petition, it has not been contended that in the service book, the date of birth of the respondent -writ petitioner was not recorded as 9th September, 1951 on the basis of a medical report and the said report had been pasted in the service book of the respondent -writ petitioner. It was, however, contended in the body of the petition that in the year 1977, the date of birth of the respondent -petitioner was replaced from 2nd March, 1953 to 9th September, 1951, and that, on 17th August, 1990, he submitted an affidavit indicating that his date of birth is 2nd March, 1953 and accepting the said affidavit on 12 January, 2000, the date of birth of the respondent -petitioner was replaced from 9th September, 1951 to 2nd March, 1953. It was contended that in such background, it was unjust to hold out by the letter dated 7th October, 2004 that the date of birth of the respondent -petitioner should be reckoned as 9th September, 1951.;


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