SUDHIR AGARWAL, J. - (1.) THE petitioner has sought a writ of mandamus commanding the respondents not to retire him on 30.11.2004 and instead treat him in service continuously till 30.11.2012 and deduct provident fund and other dues from his salary. He has also sought a writ of mandamus commanding re­spondent No. 2 to decide representation dated 24.9.2004, Annexure-4 to the writ petition, of the petitioner.
(2.) BRIEF facts giving rise to the present case are that Adarsh Inter College, Khsuru Khurd, Sant Kabir Nagar (hereinafter referred to as the 'College') is an intermediate college recognized by the Board of High School and Intermediate under the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as '1921 Act'). The college being in grant-in-aid, salary is being paid to the staff and teachers in accordance with the provisions of U.P; High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as '1971 Act'). The peti­tioner claims to have been appointed in College as Class IV employee on 1.4.1973. He further claims that his date of birth as per the Kutumb Register maintained by Gram Panchayat is 1.12.1952 and on the basis of the same, the date of birth recorded in the service book was verified by the Principal vide certificate dated 26.8.1975 mentioning it as 1.12.1952. He obtained a life insurance policy in August, 1975 wherein also his date of birth was recorded as 1 12 1952 In 1989, one head clerk of the college, Mr. Ram Naresh Pandey required the petitioner to abandon his claim with respect to certain piece of land, which he did not agree and annoyed thereof, the petitioner was issued a show cause notice in the year 1998-99 as to why he should not be terminated having been appointed after the maximum age prescribed for Class IV employees to be appointed in the institution. The petitioner submitted his reply and the matter was closed: However, in September, 2004 he came to know that he is being made to retire on 30.8.2004 and getting shocked thereof, he made a representation dated 24.9.2004 to the District Inspector of Schools, Basti (hereinafter referred to as 'D.I.O.S.') stating that his date of birth is 1.12.1952 but has been manipulated as 1.12.1944 which is incorrect and should be rectified. The D.I.O.S. sent letter dated 25.9.2004 to the Principal of the college requiring him to produce the original service book of the petitioner for considering the complaint of the petitioner but it is said that the service book was not produced before D.I.O.S. and the petitioner is being made to retire on 30.11.2004 compelling him to file the present writ petition. On behalf of respondent No. 2, a counter-affidavit has been filed through Standing Counsel and" it is stated therein that at the time of appoint­ment of the petitioner in 1973, a service book was prepared wherein his date of birth was mentioned as 1.12.1944 and the said entry was duly signed by the pe­titioner. It is also said that there is no over-writing or cutting in the service book of the petitioner and,. therefore, his entire contention that his date of birth was 1.12.1952 and has been altered in the service book is incorrect. It is also averred that in the service book, the petitioner .has signed on various occasions and had never disputed his date of birth, but at the fag end of his retirement, he sought to dispute his date of birth, which is not permissible in law. A date of birth once entered in service book is not liable to be changed at the time of retirement and, therefore, the writ petition is liable to be dismissed.
(3.) ON behalf of respondent No. 4, a short counter-affidavit has been filed annexing a photocopy of the service book of the petitioner showing his date of birth as 1.12.1944. It is denied that date of birth of the petitioner at any point of time has been altered and, on the contrary, it is said that on various occa­sions his date of birth has been shown as 1.12.1944 and it was never disputed by the petitioner. The date of birth as recorded the service book was. also within the knowledge of the petitioner, yet, he never disputed the same and, there­fore, any challenge to the said date of birth at the time of retirement is wholly an afterthought and cannot be accepted. It is also said that in 1989, there was an audit objection pointing out that the petitioner's date of birth was 1.12.1944 though he was appointed on 1.4.1973 when his age was 28 years and 4 months, though it could not .have been more than 28 years as per the Rules and, there­fore, his appointment appears to be irregular and illegaj. Accordingly, a show cause notice was issued to the petitioner on 22.11.1989 pointing out the said fact requiring him to show cause. The petitioner submitted reply and afterwards the petitioner's appointment was not invalidated. It is further said that after representation made by the petitioner to D.I.O.S. in 2004, the Principal of the College brought the entire fact to the notice of the D.I.O.S. vide letter dated 19.10.2004 and the D.I.O.S., after being satisfied with the record, refused to grant any indulgence. It is, thus, contended that claim of the petitioner to chal­lenge his date of birth at the fag end of his retirement is clearly illegal, hence, the writ petition is liable to be dismissed.;