Ran Vijai Singh, J. - (1.) THROUGH this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 16/8/2007 passed by Executive Engineer, Construction Revision, Public Works Department, District Maharajganj (respondent No. 3) by which the petitioner's application for correction of date of birth in the service book has been rejected on the ground that the date of birth recorded in the service book at the time of entry in the service shall be deemed to be correct. This was done on the basis of legal advice taking note of the provisions contained in (U.P. Recruitment of Services Determination of Date of Birth Rules) 1974 (herein after referred to as Rules 1974).
(2.) THE facts giving rise to this case are that the petitioner was appointed as a roller driver on 1.3.1980 and was confirmed on the said post on 30.8.1982. While entering into the service his date of birth in the service book was recorded as 20.8.1947. Taking note of that the petitioner was served with the notice of retirement dated 20.3.2007 treating the petitioner's date of birth as 20.8.1947. After coming to know about the notice dated 20.3.2007 issued by Executive Engineer Construction Division, Public Works Department, District Maharajganj, the petitioner has given an application mentioning therein that the petitioner has passed High School Examination in the year 1967 and in the High School Certificate, his date of birth is mentioned as 1.1.1949. Alongwith application, the petitioner has also filed photo stat copy of the High School certificate but no decision was taken thereon and petitioner thereafter filed Civil Misc. Writ Petition No. 2232 of 2007. This writ petition was disposed of on 11.5.2007 with the observation that for redressal of his grievance the petitioner may file application before the authority concerned. THE direction was also issued to the respondents to decide the petitioner's representation before he reaches the age of superannuation. Copy of the order passed by this Court is brought on record as Annexure 4 to the writ petition. It is thereafter the petitioner has filed the certified copy of the order of this Court alongwith fresh representation and the same was rejected by the impugned order dated 16.8.2007 on two grounds : (1) the application has been filed at the fag end of service. (2) In view of Rules of 1974 the date of birth recorded in the service book at the time of entry into service shall be deemed to be correct. Sri R.B.Yadav, learned counsel appearing for the petitioner, referring to Rule 2 of Rules 1974, has submitted that in the case of an employee who entered into the service after passing of the High School Examination, his date of birth recorded in the High School Certificate shall be treated to be correct date of birth and in case while entering into the service the employee has not passed High School Examination, the date of birth recorded in the service book shall be treated to be correct date of birth. In his submissions, the respondent has erred in rejecting the petitioner's application and retiring him treating his date of birth as 20.8.1947. In support of his submissions, he has placed reliance upon the judgment of this Court in the case of Hah Shankar Pandey v. U.P. Power Corporation, Lucknow and others, 2006 (1) ESC 80 (All). Refuting the submission of learned counsel for the petitioner, learned standing counsel has submitted that the petitioner has not filed High School certificate while entering into the service therefore at the fag end of the service he cannot be permitted to take benefit of the date of birth recorded in the High School Certificate. In his submissions, in view of the Rules of 1974, no application for correction of date of birth can be entertained. He has placed reliance upon the government order dated 7.6.1980 annexed as Annexure 1 to the supplementary counter-affidavit dated 4.1.2011 mentioning therein that the date of birth recorded in the service book shall be final for all purposes. In the submissions of learned standing counsel, there is neither any infirmity nor illegality in the order impugned and the writ petition deserves to be dismissed.
(3.) IN response to the writ petition as well as supplementary affidavit, the respondents have filed counter-affidavit, supplementary counter-affidavit and second supplementary counter-affidavit stating therein that the petitioner's date of birth was recorded on the basis of medical certificate of Senior Medical Superintendent S.S.P Gupta Hospital Varanasi. According to which, the petitioner has stated that he is of about 27 years but the Doctor has recorded that he appears to be 35 years. First page of the service book has also been brought on record mentioning the date of birth 20.8.1947. IN the supplementary counter-affidavit sworn on 30th March, 2009, it has been stated that the petitioner kept mum for about 25 years after entering into service and at the fag end of the service he has filed an application for correction of date of birth in the service book which is impermissible. Whereas through second supplementary counter-affidavit the respondents have brought on record the relevant Rule 2 of Rules of 1974 as amended in the year 1980. The letter dated 22.12.2010 issued by Deputy Secretary Madhyamic Shiksha Parishad verifying the petitioner's passing High School Examination in the year 1967 recording date of birth dated 1.1.1949. IN reply thereto the petitioner has filed rejoinder affidavit as well as supplementary rejoinder-affidavit. These affidavits may be referred as and when it is required. I have heard Sri R.B.Yadav, learned counsel for the petitioner and learned standing counsel and gone through the record of writ petition and various affidavits filed by the parties. It is not in dispute that the petitioner has entered into service for the first time on 1/3/1980 and was made confirmed on 30/8/1982. The petitioner has filed an application for correction of date of birth only after receipt of the notice dated 20/3/2007 intimating him to retire with effect from 31/8/2007. The petitioner's application was considered only after the order of this Court dated 11/5/2007 passed in Writ Petition No. 22321 of 2007 and respondent No. 3 has rejected the same on the ground of legal advice which was given on the basis of Rules of 1974. ;