- (1.) D. K. Seth, J. The petitioner was asked to retire on attainment of 58 years of age by a notice contained in Aennxure 7 to the writ petition being dated 21st August, 1995 informing him that he would be retir ing with effect from 1st March, 1996 on account of attainment of 58 years of age on 29th February, 1996. Subsequently, another letter dated 16th November, 1995 contained in Annexure 10 was issued to the petitioner informing him that he would be retiring on 30th June, 1996 and the date 29th February, 1996 mentioned in the letter dated 21st August, 1995 is to be read as 30th June, 1996. These two notices have been challenged by means of this writ petition on the ground that the date of birth of the petitioner was recorded in the service record as 2nd February, 1940 on the basis of the High School Certificate. Therefore, the petitioner ought to retire on 1st March, 1998 when he would be completing 58 years of age.
(2.) MR. S. C. Budhwar, learned Coun sel for the petitioner assisted by MR. Arun Tandon contends that the U. P. Recruit ment in Service (Determination of date of Birth) Rules, 1974 were adopted by the respondent on 20th June, 1975 and as such the provision of the said Rules would not be applicable in a case where the date of birth is already corrected or recorded before the enforcement of the said Rules. According to him, in the service record original date of birth was recorded as in June, 1938 but the same was corrected as on 2nd February, 1940 on the basis of High School Certificate on 29th April, 1974. The said 1975 Rules came into force on May 28, 1974. Therefore, according to him if the 1974 Rules cannot be applied in that event, it could not be said that the petitioner's age could not be corrected, simply because that the petitioner had passed the High School Examination after his entry into the service. He next contends that the service book was corrected by the respondents themselves and had allowed the same to continue even till today and has not yet been corrected and as such, the respondents are estopped from challeng ing the same or ignoring the same. Accord ing to him, unless the said date of birth is corrected in the service book and the date of birth as in June. 1938 is restored, the respondents cannot be compelled the petitioner to retire on the basis of the date of birth since been scored out and sub stituted by 2nd February, 1940. He next contends that even if the date of birth recorded at the time of entry could be restored, the same can be done only by means of correction of the date of birth after giving an opportunity to the petitioner. There having been no oppor tunity given and no step having been taken to correct the date of birth, it was not open for them to retire the petitioner on the basis of the deleted date of birth. MR. Budhwar had also relied on a circular is sued by the Department on 17th Decem ber, 1974, a copy whereof was reproduced on 15th February, 1975 being Annexure SA-1 to the Supplementary Affidavit in order to contend that before 1974 Rules were adopted the date of birth could be corrected on the basis of the said circular taking into account the High School Cer tificate irrespective of the date as to when the examination was undertaken, namely, before or after entry into service. Accord ing to him the correction was made on 20th April, 1975 on the basis of this cir cular dated 17th December, 1974. There fore, according to him the notice could not be sustained. He further contends that by reason of interim order granted in this writ petition, the petitioner had continued till 28th February, 1998 and since had retired on 1st March, 1998. Mi. Arvind Kumar, learned Coun sel for the respondents on the other con tends that the order dated 17th December, 1974 cannot be resorted to or relied upon by the petitioner since the application thereof was confined to the incumbents mentioned in the DO letter referred to therein which were in respect of the employees of the Lucknow Electric Supp ly Undertaking, Lucknow. The petitioner's name was not mentioned in the list of Lucknow Electric Supply Un dertaking, Lucknow. Since the petitioner had at no occasion been employed there, therefore, no benefit could be derived out of the said circular dated 17th December, 1974. He further contends that the correc tion was made on 20th April, 1975 whereas the U. P. State Electricity Board had adopted the said 1974 Rules on 20th June, 1975, namely, only three months before the application of the said Rules were at tracted. According to him, under the said Rules age cannot be corrected on the basis of a High School Certificate if such certifi cate is obtained after the entry into the service. Therefore, according to him, the correction could not have been carried out. He further contends that the above correction must have been corrected sur reptitiously immediately before the enfor cement of the 1974 Rules. Therefore, the petitioner having taken advantage of a situation, which according to him is wrongful, the petitioner cannot now derive any benefit out of his own wrong which he had obtained. He further con tends that in any event, by reason of the 1974 Rules since been adopted by U. P. Slate Electricity Board, the date of birth could not be corrected on the basis of High School Certificate obtained by the petitioner after his entry into service. He next contends that in case the date of birth is accepted in that event, the petitioner would be less than 18 years and be dis qualified to enter into the service and as such he cannot be allowed any benefit of such date of birth. Therefore, the writ peti tion should be dismissed. I have heard both the Counsel at length.
(3.) SO far as the circular dated 17th December, 1974, is concerned, as rightly contended by Mr. Arvind Kumar, the same cannot be attracted in the case of the petitioner. No benefit there out could be derived for the purpose of correction of the date of birth in the service record by the petitioner. Inasmuch as it is apparent from the text of the said circular that the same was confined to the incumbents mentioned in the DO. letter concerning the Lucknow Electric Supply Undertak ing, Lucknow. Admittedly, the petitioner's name was not mentioned in the said DO letter Though Mr. Budhwar contended that a copy was forwarded to Allahabad for necessary information and action means that it was applicable even in respect of the petitioner who was in Allahabad. But this contention does not appeal to me. Even if a copy is forwarded to Allahabad for infor mation and necessary action but the order itself having confined to the incumbents mentioned in the DO letter employed in Lucknow Electric Supply Undertaking, Lucknow, the same cannot be extended to anyone else other than those mentioned in the DO letter. Therefore, the petitioner cannot be derived any benefit there out as contended by Mr. Budhwar. Admittedly, the 1974 Rules were adopted by U. P. Stale Electricity Board on 20th June 1975. Thus on 20th April, 1975, the 1974 Rules have no application. Therefore, the provisions contained in 1974 Rules to the extent that the dale of birth cannot be corrected on the basis of a High School Certificate if such examina tion is passed after entry into service, can not be applied. On the other hand, in the absence of any provision it was open to the respondents to correct the date of birth. Il was also open to the respondents to refuse to correct the date of birth on the basis of the High School Certificate produced in April, 1974. But once such correction is made on the basis of such High School Certificate, it is no more open to the respondents to ignore the same and resile therefrom. Admittedly, the corrections are signed by the competent officer. Mr. Arvind Kumar in his usual fairness has not disputed that the corrections were initialled and signed by the competent of ficer. The original date that was men tioned at the time of initial appears to have been deleted or scored out. The said scor ing out is also signed by an officer as is apparent from the Annexure CA-I which is a xerox copy of the service book of the petitioner. After having corrected the date of birth, the respondents cannot compel the petitioner to retire on the date of birth which had since been deleted. Inasmuch as, on the service record the date of birth as 2nd February, 1940 was prevailing on being substituted after deleting the date of birth recorded at the time of entry.;