- (1.) R. B. Misra, J. Heard Sri Brijesh Chandra Naik, learned Counsel for the petitioner and Sri S. S. Sharma, learned Standing Counsel. Listing application is being disposed of and with the consent of the parties the present writ petition is disposed of in view of Second proviso to Rule 2 of Chapter XXII of the High Court Rules, 1952.
(2.) IN this petition the petitioner has prayed for quashing the order dated 2-2-1998 (Annexure-4 to the writ petition), whereby the petitioner was directed to be retired on 30-6-1998, with a further prayer to direct the respondents to continue the petitioner in service till 30-6-2001. According to the petitioner he was appointed as a temporary Bearer in Circuit House w. e. f. 29-1-1962. The petitioner is not High School pass, and while entering into service the date of birth of the petitioner was entered as 5-6-1940 in the service book, which was duly attested by the petitioner as well as by the competent authority the Assistant Engineer. The petitioner in due course was promoted as Work Supervisor w. e. f. , 26-5-1979 and had carried on the service satisfactorily and taking the date of birth as 5-6-1940, an order dated 2-2-1998 (Annexure-IV) was issued to petitioner to retire him on 30-6-1998. In the supplementary affidavit filed on behalf of the petitioner on 11-4-2000 the petitioner relied upon the returns given by the office of the Executive Engineer of Public Works Department, where the date of birth of the petitioner was written as 5-6-1943. at the fag end of career the petitioner presented the registration and transfer certificates issued on 15-7-1969 by Jai Narain Pratap Narayan Higher Secondary School Kanpur showing the dispute in the date of birth shown as 5-6-1940 in place of 5-6- 1943. According to the petitioner he has been given a certificate by the Chief Medical Officer, Kanpur Nagar dated 25th May, 1998 (enclosed as Annexure-7 to the writ petition) according to which by physical appearance the age of the petitioner was estimated fifty five years on 25-5-1998. On the basis of this medical certificate, transfer certificate and returns issued by the Executive Engineer, the petitioner has claimed and disputed at the fag end of his service his date of birth as 5-6-1943 and not the date of birth entered into the service book, which was duly attested by the petitioner and verified by the competent authority.
(3.) THOUGH counter-affidavit has not been filed, however, the learned Standing Counsel had submitted that the date of birth entered into the service book and duly verified by the petitioner and endorsed by the competent authority is to be taken as correct date of birth. The petitioner has acknowledged the same and has not agitated or claimed for correction of his date of birth after entering in service. As the dispute of the date of birth is a question of fact and that could only be rectified by Civil Court by way of suit the petitioner might have relied upon evidences and documents of his choice to prove his controversial date of birth at appropriate forum and the disputed question of fact can not be gone into in the writ petition. 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 wife of the deceased employee 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 entries 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.;