AMRESHWAR PRATAP SAHI,J. - (1.) Heard the learned Standing Counsel for the appellant and Sri Ashish Gupta, learned counsel for the respondent no. 1. None appears for the respondent No. 2.
(2.) This appeal (formerly numbered as Defective Appeal No. 346 of 2003) has been filed by the District Inspector of Schools, Firozabad on behalf of the State praying for setting aside the judgment of the learned Single Judge dated 1st August, 2002 whereby a learned Single Judge of this Court has allowed the writ petition and has held that the correct date of birth of the respondent no. 1 is 1st October, 1934 and not 1st October, 1929 as a result whereof, he is entitled to retain all the wages that had been received by him up to 30th June, 1995. It was further held that he was entitled to 12% interest in relation to the delayed payments including post retiral benefits which are to be paid treating his date of birth as 1st October, 1934.
(3.) The dispute has a chequered history inasmuch as, one of the peculiar facts that has come to our notice is that against the very same judgment impugned herein, the Committee of Management of the Institution, which is the respondent no. 2 in this appeal, filed Special Appeal Defective No. 239 of 2003, the delay whereof was condoned but the appeal was dismissed in the absence of learned counsel on 2nd July, 2012 on merits. The judgment of the said appeal is extracted here in under:- "List has been revised yet none responded on behalf of the appellant although name of Sri P.K. Jain is shown as counsel for the appellant. We have, however, perused the record. It appears that the petitioner-respondent being aggrieved by the notice dated 29.9.1995 given by the Manager of the Institution in question preferred the Writ Petition No. 36661 of 1995, Ram Dayal Gupta v. District Inspector of Schools, Firozabad and others . The learned Single Judge having found that the date of birth of the petitioner-respondent both in the service book as well as in the High School certificate is recorded as 1.10.1934 allowed the writ petition vide order dated 1.8.2002 and directed the appellant to pay the retiral benefits to the petitioner respondent on the basis of his date of birth recorded as 1.10.1934 along with interest @ 12%. The appellant thereafter has preferred this intra court appeal, under the Rules of the Court on the ground, inter alia, that the actual date of birth of the petitioner respondent is 1.10.1929 but the same has been changed by interpolation. The learned Single Judge, however, has found that the date of birth of the respondent-petitioner is recorded as 1.10.1934 in the service book as well as in the High School certificate and, therefore, taking it to be the correct and authentic date of birth directed for payment of pension from the date of retirement of the petitioner respondent i.e. 30.6.1995. No evidence or material has been brought on record to show that the date of birth mentioned in the High School certificate and the service book is wrong. Besides that, there would be presumption of correctness of the date of birth mentioned in the High School certificate as well as in the service book. In the case in hand, the date of birth written in the service book of the petitioner-respondent is the same as that of the High School certificate and, therefore, in the absence of any clinching evidence, it cannot be held that the date of birth of the petitioner-respondent shown in the service book is wrong. In view of the above we have no reason to differ with the view taken by the learned Single Judge specially in view of the fact that in the service book as well as in the High School certificate the date of birth of the petitioner-respondent is similar and therefore the impugned notice issued by the appellant after the retirement of the petitioner-respondent from service cannot sustain. We, therefore, do find any merit in the appeal. It is accordingly dismissed.";