- (1.) R. B. Misra, J. Heard Sri Amit Singh holding brief of Sri Dev Raj learned Counsel for the petitioner as well as Sri Raj Kumar and Sri Deepak Sharma learned Counsel for the respondents.
(2.) IT appears that the petitioner was appointed as a Class IV employee (Dai) in the department of Medical Health and Family Planning and the petitioner is not a High School pass, however his date of birth entered as 18th February, 1935 in the service book was verified time and again by the authorities concerned and the age of retirement of the petitioner an employee of Class IV category as 60 years. The petitioner was to be retired on 18th February, 1995. For the reasons unknown on 3rd April, 1991 the Medical Officer of Primary Health Centre Chandak, District Bijnor has asked the petitioner to give a proof of her date of birth and the petitioner was required to be examined by the Chief Medical Officer. Consequent upon the examination,the Chief Medical Officer, Bijnor estimated age of the petitioner on 3-4-1991 as about 60 years. Taking into consideration of this medical certificate the petitioner was made to retire on 30th April, 1991. At subsequent stage out of wisdom, on the representation and undertaking (Annexure-4) of the petitioner, the petitioner was taken back into the service on 27-5-1994 in reference to her undertaking that she had not worked for 22 months, therefore, she will not claim now and in future the salary for that period on the ground of ethics. Subsequently the petitioner claimed for her salary for the period from 1-5-1991 to 26-5-1994 with interest. According to Annexure-3 of the writ petition a letter dated 22nd September, 1992 was written from Deputy Director, Medical Health to the Director General of Medical Health and Family Welfare, Uttar Pradesh narrating the entire facts and circumstances of the case and also indicating that the date of birth once entered in the service book and verified by the officials from time and again could not be altered and as such the retirement of the petitioner was not legal, therefore, Deputy Director by his above letter expected to do justice to the petitioner. The contents of paragraphs of the counter-affidavit have not been substantially denied rather it was indicated only that the Chief Medical Officer has physically examined and assessed the age of the petitioner on 3-4-1991 as about 60 years and on that basis only the petitioner was made to retire. All the aspects of the counter-affidavit had been controverted in detail in the rejoinder-affidavit in addition the averments and contentions of the writ petition have been reiterated. According to paragraph 2 of the rejoinder-affidavit the petitioner was retired from the service illegally ignoring her date of birth recorded in service book and in derogation to the provisions of "u. P. Recruitment in Service (Determination Date of Birth) Rules, 1974 "as amended in the year 1980 whereby the date of birth entered into service record shall be taken as true date of birth. All the Government servants, those who had not passed High School Examination will retire on the last date of the month in which they complete their age of superannuation and as the petitioner was Class IV employee in view of amended Fundamental Rule 56 (Financial Hand Book) Vol. II, Part 2 to 4 the date of birth as recorded in service book the date of superannuation was 28th February, 1995.
(3.) IN (2003)1 UPLBEC 280, Bimlesh Sharma v. Electricity Board, Office of Chief Engineer, U. P. Rajya Vidyut Parishad, Moradabad and others, where date of birth entered in the service book was to be changed by the deceased employee wife when the husband of the writ petitioner had died after retirement by disputing the change of date of birth. This Court has held disputed question of fact cannot be investigated in the writ petition and the date of birth once entered in the service book of the petitioner under U. P. Recruitment to Service (Determination of Date of Birth) Rules, 1974, was treated to be correct supported by the relevant documents and supporting entires in the service book and the change of the date of birth disputing the same on the basis of fitness certificate were not treated to be relevant proof of age and such controversy and disputed question of fact could not be resolved by investigating the authenticity of the documents relied upon by the parties concerned in the writ proceedings. In the case of of Adhishashi Abhiyanta, Electricity Board, Rihand and Hydel Civil Division U. P. State Electricity Board, Allahabad and another v. Shitla Prasad and another, Special Appeal No. 383 of 1989, decided on 17-9-1993, a Division Bench of this Court has held that: ". . . . . In our opinion, the medical fitness certificate dated 25-7-1974 could not be treated an opinion of the Doctor regarding the age of the petitioner. The certificate has been given in the proforma prescribed under Fundamental Rules 10. The Doctor had examined the petitioner in order to ascertain as to whether he suffered from any communicable disease or otherwise and whether he had any constitutional weakness or bodily infirmity which would constitute disqualification for employment in the Hydel department. The doctor was not asked or required to give an opinion regarding the age of the petitioner. There are well know scientific methods to ascertain the age of a person and ossification of bone gives a fairly accurate idea regarding the age. However, for this purpose X-ray examination has to be performed in case of doctor had been asked to give his opinion regarding the age of the petitioner he would have performed necessary tests including X-ray examination etc. and would have also given the scientific date on the basis of which he would have formed his opinion about the age. The doctor while giving opinion about the age of a persons is if the. . . . . Nature of the an expert and in absence of necessary scientific date. . . . . weight in view of Section 45 of Evidence Act. We are clearly of the opinion that the medical fitness certificate dated 25-7-1994, could not at all be treated as an opinion of the doctor regarding the age of the petitioner. As a consequence the said document could not be used for the purpose of determining his age. ";