- (1.) D. K. Seth, J. After the amendment is allowed, Mr. K. R. Singh, learned Stand ing Counsel submits that he is not re quired to file any counter-affidavit in respect of the amended pleading and the writ petition can be disposed of on the basis of the material before the Court to which Mr. W. H. Khan learned Counsel for the petitioner has no objection. By con sent of the parties, the matter was taken up for hearing. Both the learned Counsel had addressed the Court on the merits.
(2.) THE petitioner contends that he was asked to retire on 30th June, 1996 by a notice dated 12th November, 1997 (An-nexure 4), on the basis of his date of birth as 1st July, 1940 recorded in his service book. Petitioner alleges that he had passed Junior High School Examination in 1957 and High School Examination in 1959. THE date of birth of the pettier has been recorded as 15th July, 1943 in the certifi cate of High School Examination. THEre fore, he had made an application on 14th November, 1997 for correction of the date of birth recorded in his service record, but the same has not been accepted. Hence this writ petition. Mr. W. H. Khan, learned Counsel for the petitioner contends that the date of birth had been corrected sometimes in 1999 which is apparent from the Identity Card issued to the petitioner where the date of birth has been recorded as 15th July, 1943. Therefore, the respondents cannot ask the petitioner to retire on the date of birth as 1st July, 1940. But the said contention does not appear to be acceptable. Since on the basis of Annexurc 5 to the writ petition, it ap pears that the petitioner had applied for correction of the date of birth from 1st July, 1940 of 15th July, 1943 by means of an application dated 14th November, 1997. If the dale of birth has been corrected in 1990, in that event, there was no necessity for applying for correction of the date of birth on 14th November, 1997.
(3.) MR. W. H. Khan then contends that the dale of birth appearing in the High School certificate should be recorded in the service book by reason of Rule 2 of the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974. He contends that since the date of birth recorded in the service book is 1st July, 1940, therefore, the service record should have been corrected in pursuance to his application dated 14th November, 1997 and he cannot be asked to retire on the basis of his date of birth as on 1st July, 1940. Therefore, the writ petition should be allowed and the petitioner should be allowed to continue till the date of super annuation on the basis of the date of birth as on 15th July, 1943. Mr. K. R. Singh, learned Standing Counsel, on the other hand, contends that the petitioner has approached for the first time only on 14th November, 1997 for correction of the date of birth on the basis of the High School certificate. According to him, the petitioner did not produce High School certificate at the time of entry into the service on 24th June, 1961. On the other hand, on the basis of the date of birth given in his application as 1st July, 1940 it was so recorded in the service book after verifying through the Civil Surgeon, who had reported his approximate date of birth as 19 years as is apparent from Annexure CA-1. He further contended that had the petitioner produced the certificate, in that event he would have been declared dis qualified to join the services since he would not have been completed is years of age on the basis of the date of birth recorded in the certificate record at the time of recruitment. If he himself sup pressed the same and obtained undue ad vantage on the basis of the date of birth declared by him self, the petitioner cannot be allowed to take advantage of his own wrong. According to him, the petitioner had allowed the date of birth as recorded in the service record to continue for long 37 years and had never disclosed the exist ence of the High School certificate till he applied for correction. Therefore, the writ petition should be dismissed.;