- (1.) BHANWAR Singh, J. This petition has been filed for a writ in the nature of certiorari quashing Annexures-4 and 6, whereby the petitioner's date of birth was approved to be as 8-6-1935 and accordingly he was directed to superannuate on 30-6-1993 i. e. , the last date of the month in that year. Another writ of mandamus has been prayed for commanding the opposite parties to accept the 8th July, 1937 as the petitioner's genuine date of birth and accordingly continue him in service until 31-7-1995.
(2.) THE factual matrix of the case is that the petitioner was appointed as Conductor on July 22, 1954 by the Assistant General Manager, Moradabad. He earned applause and appreciation from his superior authorities and during the course of his career, he was promoted first as Assistant Booking Clerk and later as Booking Clerk. With the incentives of promotions one after the other he further accelerated in his job as a result of which he was appointed as Traffic Inspector (Third Category) and sometimes thereafter, he was promoted to the post of Senior Centre Incharge. In December, 1992, the Managing Director of the U. P. State Road Transport Corporation, Lucknow, hereinafter referred to as the U. P. S. R. T. C. , appointed him, on promotion, as Traffic Superintendent and he continued to hold the said post until filing of this writ petition. It appears that in his Service Book, his date of birth was not correctly mentioned at the time of his joining the service although he had submitted his High School Certificate in proof of his Educational Qualification with age. Whereas in the High School Certificate, his date of birth is recorded as 8-7-1937, it was wrongly entered as 8-6-1935 in his Service Book. According to his correct date of birth as recorded in his High School Certificate, he was to attain the age of superannuation on 31-7-1995 but he was served with a notice dated 21-5-1992 by the Additional Chief Managing Director, Lucknow whereby it was conveyed to him that he was scheduled to retire on June 30, 1993. He lodged a protest and moved a representation dated 5-7-1992 with the allegation that the date of birth as recorded in the High School Certificate will determine the date of retirement in accordance with the Rules framed in 1974 and 1980. However, his representation was rejected vide order dated 5-6-1993. Since the rejection order dated 5-6-1993 was not in conformity with the Rules, the petitioner has prayed for its being quashed. It has been termed to be as illegal and arbitrary. On behalf of the U. P. S. R. T. C. and other opposite parties Sri Harish Kumar, General Manager (Personnel filed his counter-affidavit asserting therein that the petitioner himself had given his date of birth as 8-6-1935 at the time of joining his service and after the entry was made, he signed the Service Book. As a matter of fact, the petitioner had concealed the High School Certificate while entering the service probably with a view to secure a job at the age of 17 years i. e. , when he would have been a minor. Obviously thus he had not emerged out with clean hands and as such he was not entitled to derive advantage of his own mischief. Throughout his service career, he never made an effort for change of his date of birth in his Service Book and it was only at the fag-end of his service career that he moved a representation for such change and that too only after he had been served with a notice informing him that he was scheduled to retire on 30-6-1993. For all these reasons, the writ petition deserves dismissal. The only ground on the basis of which the petitioner has sought redressal of his grievance is that his date of birth as recorded in his High School Certificate should be the determining factor of his age. In support of his contention, he has not only filed a copy of his High School Certificate but has also brought on record the photostat copy of his Service Book. In the Service Book, his date of birth was recorded as 8-6-1935 and he signed its veracity on July 22, 1954. The fact of his signing and agreeing to the genuineness of his date of birth, may be mischievous, implies that it was a well-deliberated entry. In other words, the petitioner opted to screen the genuine date of birth with a view to secure job at the age of 16 because he would have been declared minor had he disclosed his real date of birth. But, then question arises as to whether the petitioner could be allowed to resile from his admission. The fact that he did not endeavour to get the date corrected by moving a representation during the course of his long tenure of service further corroborates that the entry in the Service Book pertaining to his date of birth would be deemed to be the guiding and determining source. His contention that his date of birth was rectified in the year 1977 by the Assistant Regional Manager, Moradabad again seems to be not free from a well-planned mischief. First of all, it is relevant to mention that the service record of the petitioner, as prescribed in Form No. 10, has not till date been corrected and his date of birth still figures the same as it was entered at the time of his entry in service. It was only Form No. 13 in which the entry was corrected from 8-7-1935 to 8-7-1937. Question arises as to under whose orders, entry of Form No. 13 was changed and whether any enquiry was held or not. There is nothing on record to indicate that the petitioner made any representation upon which the competent authority of the Corporation ordered for any enquiry. If that entry was changed in Form No. 13, then why the similar rectification was not made in Form No. 10 the record, which was prepared at the advent of the petitioner's career and the entry, which he signed. It appears that the modification/change of the birth-date was surreptitiously made by the then Assistant Regional Manager at the behest of the petitioner. If it was a bona fide and genuine rectification, it should have been based on some order, enquiry and findings. Whether such a change was or was not permissible is also a question to be looked into. The entry regarding date of birth on the basis of the High School Certificate at the time of joining service is one thing and recording a particular date of birth initially concealing the High School Certificate and then moving at a much belated stage for its rectification, is different. The latter move can certainly be termed to be full of mischief, mala fide and tainted with ulterior motive of gaining advantage at both the ends. No one can be allowed to blow hot and cold together on the issue of date of birth. The petitioner is bound by his admission regarding his date of birth, which he made under his signatures when he signed his Service Book on July 22, 1954. He was matriculate at that time and knew that he possessed a High School Certificate but still he preferred to conceal the said certificate and mentioned his birth date different than what was recited in the High School Certificate. Obviously, he did not join the service with clean hands nor he has come before this Court with bona fides. He has not been able to explain as to why he put the seal of his signature on his different date of birth than what was written in his matric-certificate. Why he did not rely on the said requisite certificate and why he admitted June 8, 1935 as his birth-date are the questions which have not yet been answered by him. In other words, he has not offered any plausible or reasonable explanation for the mistake, as he says, committed at the time of his signing the Service Book. A bald statement that it was the mistake on the part of the official who prepared the Service Book and recorded his date of birth by either mistake or inadvertence ignoring the High School Certificate cannot be permitted to lie in his mouth on the face of his having affixed his signature underneath the said entry. The U. P. Recruitment to Service (Determination of Date of Birth First Amendment) Rules, 1974 and 1980 came into being long after his service record was prepared in the year 1954 and as such he was neither entitled to seek rectification of his date of birth on the basis of the aforesaid rules nor rectification carried out in the entry pertaining to his date of birth in Form No. 13 or in any part of the Service Book except the one which was initially prepared in Form No. 10 bears any significance. Moreover, he made public the factum of rectification in his date of birth in the year 1992 after he was served with notice communicating him his scheduled date of retirement in the year 1993. It has been held by this Court in Mehak Singh v. U. P. State, 1999 (2) LBESR 1040 (All), that practice to correct the date of birth at a late stage in one's career has to be deprecated in view of the Supreme Court's decision Burn Standard Co. Ltd. and others v. Shri Dinabandhu Majumdar and another, JT 1995 (4) SC 23. It was further held, that if the High School Certificate was relied upon at the time of entry in service, the petitioner would have disqualified himself for service. He has not explained as to why he did not produce the certificate at the time of entry in service and why he did not apply for correction of age earlier. One cannot be allowed, as was held further, to have the best of the both ends. Once the petitioner having overcome his disqualification by non-production of the certificate, he is estopped from relying on the same for extending the service particularly when he himself had accepted and acquired with the date of birth so recorded by signing the service record and not seeking to correct the same till the notice to retire was issued. Exactly the similar facts are involved in the case in hand.
(3.) IN another decision Ramji Singh v. State of U. P. and others, 1999 (2) LBESR 510 (All), it was held by this Court that petitioner seeking correction of age at the fag end of service career cannot be entertained. The Supreme Court's decision in Dinabandhu Majumdar's case (supra) was followed. The citation State of Orissa v. Dr. (Miss) Binapani Dei and others, AIR 1997 SC 1269, does not help the petitioner as in that case the Government had passed an order of compulsory retirement based on certain disputed date of birth. The petitioner was not given the report of enquiry officer who conducted an enquiry into the correct date of birth. Such an action of the Government was considered to be violative of the principles of natural justice. Here, the facts are in reverse order. The Government has not issued any order rectifying the petitioner's date of birth; instead the petitioner himself had sought by moving a representation for change in his birth-date. Rejection of such a representation does not bear any civil consequences. As stated earlier, the case of the petitioner before this Court was considered on the merit of the first entry recorded in his Service Book which was admittedly signed by him and it was on the basis of the said implied admission regarding genuineness of his date of birth that a decision was taken regarding his retirement on the scheduled date in the year 1993.;