- (1.) R. B. Misra, J. Heard Sri Ashok Khare, learned Senior Advocate along with Sri S. D. Shukla, learned Counsel for the petitioner and Sri Anand Tiwari, learned Counsel, holding brief of Sri Prakash Padia, learned Counsel for the respondents. In this petition prayer has been made for issuance of writ of certiorari to quash the notice dated 13-9- 1999 (Annexure-8 to the writ petition) issued by the Registrar, University of Allahabad and further prayer has been made for issuance of writ of mandamus restraining the respondents from effecting any recovery on the basis of the order dated 13-9-1999 and also for commanding the respondents not to interfere in the working of the petitioner as a Class-IV employee till 31-10-2003 i. e. till he attains the age of 60 years.
(2.) IT appears that by order dated 13-9-1999, treating the petitioner's date of birth 30-1-1939 as entered into service record, the petitioner after completing the age of superannuation was notified to be retired from 30-1-1999, which has been challenged by the petitioner in the present writ petition. According to the petitioner, he is only VIIIth Class pass and is not High School pass, however, he was appointed as Lab. Attendant (Class-IV post) in the year 1963 in the Allahabad University, and in the transfer certificate issued by the school the date of birth of the petitioner is specified as 30-1-1943. According to the petitioner since in the year 1986 large number of records of Allahabad University including the service book of employees including that of the petitioner were destroyed in a fire, which took place in the office of the Registrar of the University. On account of such destruction, the Registrar of University directed total number of 70 employees including the petitioner to undergo a medical examination before the Senior Medical Officer, where the certificate dated 29-10-1986 (Annexure-2 to the writ petition) was issued to the petitioner assessing his age as 43 years by physical appearance. As such, the date of birth of the petitioner as 29-10-1943 was acknowledged on the basis of medical certificate and was accepted from the year 1986 by the University Authorities, according to which the petitioner could only be retired on 31-10-2003, however, a notice dated 13-9-1999 has been issued retiring the petitioner on 30-1-1999, which is in violation of principle of natural justice, against the provisions of Article 14 of the Constitution and is also without any rhyme or reason. According to the respondents, the date of birth of the petitioner was recorded as 30-1-1939 in various old financial statements of the university and the financial statement of the university for the year 1972- 73 and 1973-74 (Annexures-CA-1 and CA-2 to the counter affidavit) revealed the date of birth of the petitioner as 30-1-1939. The petitioner himself at relevant time of appointment has disclosed his date of birth as 30-1-1939 on the basis of one school leaving certificate (enclosed as Annexure-CA-3 to the counter affidavit), and the University had also initiated action against the petitioner on account of the complaint (Annexure-CA-4 to the counter affidavit) made by Sri Shyam Babu, and the medical examination was superfluous and was not based on deeper examination, therefore, the same cannot be believed, whereas in the earlier documents prepared at the time of entering into service and in various records and financial statements disclosed by the petitioner, the date of birth of the petitioner is 30-1- 1939. The petitioner wants to take advantage of fire, which took place in the year 1986, and on the basis of estimated date of birth given in the medical certificate, which, according to the respondents, is only a farce.
(3.) ON behalf of the respondents it has been argued that the claim of alternation of date of birth in the facts and circumstances by disputing the same is disputed question of fact, which cannot be gone into writ jurisdiction, as the same could be adjudicated before the trial Court in the suit, provided the petitioner files a plaint with the authentic supporting documents, namely, birth certificate by a Doctor or by Gram Pradhan, family register and horoscope and the statements in support of the plaint and after proper verification of the documents the declaration of the trial Court on the basis of the medical examination made including ossification of bones and after investigation, the date of birth could have been declared. 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.;