- (1.) R. B. Misra, J. Heard Sri D. V. Singh, learned Counsel for the petitioner and Sri S. S. Sharma, learned Standing Counsel for the respondents.
(2.) IN the writ petition the order passed by District INspector of Schools dated 24-2-1989 (Annexure-6 to the writ petition) has been challenged whereby treating the date of birth as 31-7-1928 as shown in the manager return, as correct and ignoring the interpolated date of birth 1-1-1938 entered in the service book the petitioner was retired on 31-7-1988. Apart from this, prayer has been made to re-appoint the petitioner to the post of Chaukidar and pay salary and other emoluments from 1985. It appears that the petitioner was entered as a Class-IV employee in U. P. Krishak Aoudyogic Intermediate College,khoria Bazar, District Basti, on 1-7-1965 and his date of birth was entered 1-1-1924 in the service book. It was manipulated and was made 1-1-1938 after cutting in place of 1-1-1924. According to the manager return the date of birth of the petitioner was acknowledged as 31-7-1928 and taking the entry of date of birth in manager's return the petitioner alongwith others Class-IV persons were retired. It appears that the petitioner alongwith other Sri Mangru filed a Civil Suit No. 566 of 1983 before the lower Court where D. I. O. S. principal of the college, manager of the college and the State Government were not made party. The Munsif Magistrate Khalilabad, Basti had dismissed the suit after adjudication. It appears that some observations in reference to some evidence produced by the parties were noticed in the order and against the said judgment of Munsif Magistrate, the petitioner alongwith others also filed appeal and moved an amendment before the Court, which were also dismissed. Thereafter, the petitioner alongwith other persons filed a Writ Petition No. 7118 of 1986 which was dismissed on 31-7-1988 and in view of the directions of this Court, the representation of the petitioner was decided by the D. I. O. S. on 24-2-1989 the order impugned in the present writ petition by saying that the date of birth of the petitioner was accepted as 31-7-1928 and the petitioner was retired on 31-7- 1988 accordingly. The D. I. O. S. in its order dated 24-2-1989 dealt the cases of petitioner as well as one Sri Mangru who preferred a Writ Petition No. 7552/89 which was allowed on 13-4-1993 and this Court has relied upon some observations in respect of evidence placed in support of the age of the claimant and has derived that observations from the dismissed Civil Suit No. 566/83 and on the basis of those observations has accepted the date of birth as 1- 1-1934, in the matter of Sri Mangru i. e. , a different person. It is relevant to note that Sri Mangroo and others have also filed Suit No. 555 of 1983 collectively which was dismissed.
(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 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. In the case of Adhishashi Abhiyanta, Electricity Board, Rihand and Hydel Civil Div. 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 Court. 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. ";