G. P. Mathur, J. - (1.) THIS Special Appeal is directed against the judgment and order dated 4-5-1993 of a learned Single Judge by which the writ petition filed by Shitla Prasad respondent no. 1 has been allowed and it has been directed that he should be permitted to continue in service on the footing that his date of birth is 25-7-1936.
(2.) SHITLA Prasad filed writ petition on the ground inter-alia that he was appointed as Driver by the Executive Engineer Rihand Hydel Civil Division Mirzapur on 7-3 -1963 and was confired from 1-4-1976 that his date of birth is 25-7- 1936; that in the medical certificate of fitness dated 25-7-1974 his age was mentioned as 38 years; that the Chief Medical Officer had submitted a report showing that his date of birth is 25-7-1936 and that without any notice or opportunity of hearing an order was issued on 24-7-90 mentioning that he should have retired on 30-1-1990 in accordance with his age mentioned in his service book but he had been allowed to continue in service by over sight and therefore, he would be superannuated on 31-7-1990. It was accordingly prayed that the aforesaid retirement notice be quashed. A counter affidavit was filed on behalf of the Executive Engineer of U.P.S.E.B. on the ground inter-alia that in the service book of the petitioner, which was prepared in 1964, his date of birth was recorded as 5-1-1932 and the same was certified by the then Executive Engineer on 7-7-1964 and was also countersigned by the petitioner himself, that the Executive Engineer sent a letter on 3-7-1973 asking the petitioner to submit a fitness certificate as required by Fundamental Rule-10 that in the end of the fitness certificate a sentence was written that the petitioner appeared to be of 38 years of age, that the certificate of fitness was submitted in 1974 which was incorporated in the service book and was also signed by the then Executive Engineer on 2-5-1975 that on the basis of the aforesaid fitness certificate the entry regarding date of birth of the petitioner was scored of and in its place 25-7-1936 was written by Madan Mohan Srivastava, dealing Assistant on 18-8-1987 that no report regarding the age of the petitioner was asked from the C. M.O. nor any test was preformed by him to ascertain the petitioner's age; that the petitioner got his date of birth noted as 25-7-1936 in the year 1987 when he was due to retire in January, 1990, that under the Rules, an Officer below the rank of Chief Engineer is not authorised to make correction in the entry regarding date of birth of an employee in the service book and that the correction made is illegal and without any authority of law. Before examining the contention of the parties, it will be convenient to notice the relevant rules regarding the employees of U.P.S.E.B. Chapter-11 deals with the record of service and Rule 27 to 30 are reproduced below : Service Book to be opened on first appointment. 27. The Service Book will be opened for every employee on his first appointment, and entries such as full name, father's name, date of birth, educational qualifications etc. filled up. Date of birth to be supported by documentary Evidence. 28. The date of birth will be verified with reference to documentary evidence. The documents to be relied upon may be one of the following. (i) In the case of candidates who have passed High School Examination of the U. P. Board of High School and Intermedtate Education or an examination recognised as equivalent thereto, the date of birth as recorded in the certificate of having passed that examination will be taken to be the date of birth. (ii) For those who have not passed the High School or equivalent examination but have attended school, the evidence of age will be the last school leaving certificate. (iii) For others the evidence of age will be the birth certificate issued by a local body or any other authority required to maintain - such records. Determination of date of birth in certain cases. 29. In the absence of any of the records specified in the preceding paragraph, age will be determined as below- (a) When only the year of birth of an employee is known but, not the month and date, the first July of the year will be taken as the date of birth. (b) When the year and month of birth are known, but not the exact date, sixteenth of the month will be taken as the date of birth. (c) If the date of birth cannot be ascertained, a certificate from the Medical Officer approved by the Board stating the approximate year of birth may be accepted for fixing the date of birth of the candidate. Date of birth may not be altered. 30 (1) After considering the evidence produced, the head of office will accept or determine the date of birth and enter it in the Service Book under his attestation, citing the evidence relied upon. (2) Notwithstanding anything to the contrary contained in any rules or orders, the date of birth of an officer or employee of the Board as recorded in the certificate of his having passed the High School or equivalent examination or when an employee has not passed any such examination, the date of birth or the age recorded in his Service Book at the time of his entry into Board's service shall be deemed to be his correct date of birth or age. and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever." A perusal of the rules would show that at the time of initial appointment Service Book of every employee has to be opened which has to contain an entry regarding his date of birth. Rule-28 shows that date of birth has to be recorded on the basis of documentary evidence enumerated therein. Rule 29 (c) shows that if the date of birth cannot be ascertained on account of an availability of the documents enumerated in Rule-28, then a certificate from the Medical Officer approved by the Board stating the approximate year of birth may be accepted for fixing date of birth of the employee. Rule 30 (1) lays down that entry regarding date of birth would be made in the service book after considering the entire evidence produced before Head of the Office A combined reading of Rule-27 to 30 would show that the report from Medical Officer regarding the age of an employee in the event of non-availability of the documents enumerated in Rule-28 has to be obtained only at the time of making the initial entry regarding his date of birth in the service book. Sub-rule (2) of Rule-30 provides that the date of birth of an employee as recorded in the High School certificate or when an employee has not passed any such examination, the date of birth or age as recorded in the service book at the time of his entry into Board's service shall be deemed to be his correct date of birth or age. The sub-rule also puts an embergo upon making any correction in such date of birth or age in any circumstance. Sub-rule (2) of Rule-30 is couched in the same language as rule-2 of U. P. Recruitment to Services (Determination of date of Birth) Rules, 1974. A Division Bench in Brahma Dev Pandey v. D.M., 1993 (3) UP LB EC 1261' has held that finality attaches to date of birth as recorded in the service book and the same cannot be disturbed on a subsequent plea by the employee that it has been wrongly recorded. We are also of the opinion that in view of sub-rule (2) of Rule-30 the entry regarding date of birth of an employee in the service book is final and shall be deemed to be his correct date of birth and no representation can be entertained for correcting the same. We may clarify here that we may not be understood to be laying that under no circumstance the entry in service book can be corrected. If there is a Clerical mistake in recording the date of birth which is apparent from the documents produced at the time of making of the initial entry, the same may be corrected.-
(3.) IT is not the case of the petitioner that he was not aware that his date of birth was incorrectly recorded in the service book and when he came to know about the alleged mistake he made an application for correction thereof and some officer of UPSEB, who was legally authorised to do so, after holding an enquiry and taking evidence permissible under law, made necessary corrections in accordance with the Service Rules. On the contrary the case set up in the writ petition is that his date of birth is 25-7-1936 and it is so recorded in the service book but the authorities had wrongly served a retirement notice treating it to be 5-1-1932. We have examined the original Service Book of the petitioner which was produced before us by learned counsel for the appellant which shows that the date of birth of the petitioner was written as 5-1-1932 and it was signed by the petitioner himself and Sri Parmanand Gupta, Executive Engineer, Rihand, Hydel Civil Division, Mirzapur on 17-7-1964. The Executive Engineer wrote a letter to the C.M.O., Allahabad on 30-7-1973 requesting him to examine the petitioner as his medical fitness certificate was not on record. Thereafter, the Deputy C,M O. examined the petitioner on 25-7-74 and issued a medical fitness certificate which is exactly in the form prescribed under rule-10 of the Fundamental Rules. Since this certificate has some bearing on the facts of the present case, the same is being reproduced below : CERTIFICATE OF FITNESS FOR GOVT. SERVICE (See Rule 10 of Fundamental Rules) I do hereby certify that I have examined Sri Sheetla Prasad a candidate for appointment in Hydel department and can not discover that he has any disease communicable or otherwise, constitutional weakness or bodily infirmity except nil. I do not consider this a disqualification for employment in the Hydel department. The candidate's age according to his own statement is 38 years and by appearance is 38 years.";