M.L. Bhatt, J. - (1.) IN writ petition No. 11597 of 1985 the petitioner, Sukh Lal, prays for a writ of mandamus directing the respondent not to interfere in the discharge of his duties as Headmaster of Junior High School, Shastri Nagar, Kanpur upto the date of his superannuation in June, 1990. It is averred by the petitioner that according to the High School Certificate his date of birth is 9 -9 -1929 and his age of superannuation is 60 years. He has relied on R.2 of the U.P. Basic Education (Teachers) Service Rules of 1981. The petitioner is said to have received a notice dated 26 -11 -1984 in which it was conveyed to him that he had already retired on 8 -9 -1984. The petitioner was, however, allowed to continue to work when he approached the Education Superintendent. In May, 1985 the District Basic Education Officer's report was called for in respect of the petitioner's age. On 22 -7 -1985 the petitioner is said to have received a letter from the Education Superintendent asking him to furnish the particulars regarding his service, which were duly furnished by the petitioner. On 1 -8 -1985 the respondent No. 4 is said to have directed the petitioner to go back from the School as he had already completed 60 years of age. The petitioner submitted that the respondents have no jurisdiction to reject the date of birth of the petitioner, as entered in the High School Certificate, which is 9 -9 -1929. The petitioner challenges the order retiring him before reaching the age of 60 years and has prayed that his work may not be interfered with. On 7 -3 -1985 this Court had directed the respondents not to interfere with the petitioner's working as Headmaster of the Junior High School. The said order was confirmed on 26 -9 -1986. Thereafter on 13 -12 -1989 a direction was issued to the respondents to pay salary to the petitioner for the period during which he hat worked from the date of Interim order passed by this Court. The petitioner is not now working. According to the petitioner, he has retired in 1989 whereas the respondent's contention is that he has retired in 1984 and the respondents' further contention is that he was not eligible for working as Headmaster of the Junior High School. He would retire in 1984 itself. Under the orders of the Court he could not be paid salary because he was ineligible for being promoted as Headmaster. For non -payment of salary in terms of the order dated 13 -12 -1989 the petitioner seems to have filed a contempt petition also, which was dismissed by the Court on 27 -10 -1989 after hearing both the sides on the ground of delay. However, in the said contempt petition the District Basic Education Officer has stated that in compliance with the order of the Court dated 7 -8 -1985 the petitioner has never been interfered with in his working as Headmaster in the said institution and he is still working as Headmaster in Junior High School, Shastri Nagar, Kanpur.
(2.) THE learned counsel for the petitioner submits that it is an admitted case of the parties that the petitioner has discharged functions as Headmaster in the School in terms of the order of the Court dated 7 -8 -1985 till the date of his superannuation, which according to the petitioner has taken place in 1989. In writ petition No. 10338 of 1987 the petitioner, Badlu Prasad, had applied for being impleaded as respondent No. 5 in the writ petition of Sukh Lal and filed his counter affidavit also. In the counter affidavit it is stated by him that the petitioner's date of birth is 9 -9 -1924. The date of birth certificate produced by the petitioner as 9 -9 -1929 is fabricated. He has relied on a Gazette extract of the United Provinces in which the petitioner's date of birth is shown as 9 -9 -1924. That is contained in Annexure 1 to the counter -affidavit. He has obtained an answer also to the questional, which he had obtained from the District Basic Education Officer concerned. The only question asked was whether the date of birth of Sukh Lal in the admission register is 9 -9 -1924 at serial No. 269. The answer is in the affirmative. This is contained in Annexure 2 to the counter affidavit. The petitioner's entitlement to serve is conceded only upto 30th June, 1985 because he retires after June, 1984, therefore, he will get one year more and it is submitted that he could not retire on 30 -6 -1990. The notice given to the petitioner for retirement is said to be valid. It is also submitted that the petitioner's record was not lost accidentally but it was planned by the petitioner with the help of some employees of the office. The Secretary, U.P. Board of Basic Education, has also shown his helplessness in changing the date of birth of the petitioner, who is said to have been appointed in 1946. The petitioner is said to have manipulated his date of birth when he came to know about the exact date of his retirement. The petitioner could not be appointed at the age of 16/17 years, if his date of birth is taken as 1929.
(3.) IN the writ petition of Badlu Prasad, writ petition No. 10338 of 1987, it is prayed that a mandamus be issued to the respondents No. 1, 3 and 4 to promote him as Headmaster with effect from 1 -7 -1985 and his date of retirement is said to be 30th June, 1987 and it is also prayed that the respondent No. 2 (Sukh Lal) be retired with immediate effect w.e.f. 30 -6 -1985. The date of birth of the petitioner Sukh Lal in writ petition No. 11597 of 1985 as entered in the service record is 9 -9 -1924. That is reflected in the Gazette also. Which is produced by Mr. Badlu Prasad with his counter affidavit. The petitioner in writ petition No. 11597/85 also wants correction of date of birth from September 1920, to September, 1929. He relies on the High School Certificate. However, the High School certificate has not been acted upon. If the date of birth was 9 -9 -1929, that should have been entered in the service record also but in the service record the date of birth recorded is 9 -9 -1924. Unless the service record was corrected the High School certificate would not be the basis of retirement. The petitioner in Sukhlal's case had retired, according to him in 1990 but according to Badlu Prasad in 1985. The fact remains what the petitioner Sukhlal is not in service now. The only relief which he can pray is to pay salary for the period for which he remained in office as Headmaster of the School. No declaration can be granted in his favour with regard to his date of birth because his service record was never changed or brought in accord with the School Leaving Certificate. However, there is no averment in the counter affidavit of Badlu Prasad that the petitioner Sukhlal has obtained the orders by fraud committed by him before the Court. He has not also alleged that any misrepresentation is made by Sukhlal in obtaining interim orders. The respondent's case is that Sukhlal petitioner has worked as Headmaster in pursuance of the Court's order upto certain date even after 1985. The disputed question with regard to the declaration of age of the petitioner, Sukhlal, cannot be decided in the writ petition, therefore, no finding is given about the age of the petitioner, Sukhlal. The only question, which needs to be decided is whether he is entitled to draw salary for the period for which he has worked.;