Bhuteli Yadav vs State of U.P. and Others

V.K. Birla, J.—Heard Sri P.N. Saxena, learned Senior Counsel assisted by Sri O.P. Singh Sikarwar, learned Counsel for the petitioner, Sri S.P. Mishra, learned Standing Counsel for the respondents No. 1 to 5 and Sri R.C. Dwivedi, learned Counsel for the respondent No. 6. The factual dispute regarding recording of the correct date of birth in service record has been raised in the present petition. The petitioner, who was working on Class-IV post, claims that his date of birth is 31.1.1959, which was fabricated by the respondent No. 6 who is now retired Principal and after cutting/over-writing, his date of birth was made 30.1.1946 in place of 31.1.1959.

Pleadings between the parties have been exchanged.

On 27.5.2015, following order was passed by this Court:

"It is jointly stated by the learned Counsel for the parties that the dispute relates to the date of retirement of the petitioner.

The petitioner states that his date of birth is 31.1.1959 and in the service record the Ex-Principal has fabricated it and by the overwriting it has been shown as 31.1.1946.

This Court has earlier directed the respondents to produce the service record of the petitioner but the present Manager and the District Inspector of Schools have taken the stand that Ex-Principal of the institution has taken away the service record alongwith some other records. In this respect an F.I.R. has been lodged against him and chargesheet has also been submitted by the police.

Since there is a difference of about more than 10 years and the petitioner is a Class IV employee, in the peculiar facts of this case, I am of the view that the Chief Medical Officer, Allahabad may conduct ossification test of the petitioner and submit his report.

Accordingly, Chief Medical Officer, Allahabad is directed to conduct ossification test of the petitioner and submit the report to the learned Standing Counsel, who shall produce it before the Court on the next date fixed.

Put up this case in the additional Cause List on 14.7.2015.

Parties are at liberty to make mention on the next date to take up this case out of turn.

Learned Standing Counsel shall inform the Chief Medical Officer, Allahabad about this order."

On the earlier occasion on 20.5.2015, this Court had clearly recorded that ordinarily this Court does not interfere in the matter of date of birth when there is a disputed question of fact but in the peculiar fact of this case that a Class IV employee has raised the grievance that he has been illegally retired 13 years before his age of superannuation as such, subsequently vide order dated 27.5.2015 the Chief Medical Officer, Allahabad was directed to conduct ossification test of the petitioner and submit a report to the learned Standing Counsel, who shall produce it before the Court. When the matter was taken up on 20.7.2015, the report submitted by the office of Chief Medical Officer, Allahabad was produced before this Court.

The present petition has been filed challenging the order dated 22.11.2008 passed by the Joint Director of Education 7th Region, Gorakhpur, which was passed in pursuance of the directions given by this Court in Writ Petition No. 30646 of 2007 on 12.7.2007. Various factual aspects of the matter were raised before the Joint Director of Education including the details of family register to demonstrate that the assertion of the petitioner that his date of birth is 31.1.1959, is absolutely incorrect and false and the correct date of birth, which was recorded in service record as 30.1.1946 is the correct date of birth and hence the petitioner was rightly retired and that he is not entitled to continue till 31.1.2019.

A finding of fact was also recorded by the Joint Director of Education accepting the date of birth as originally recorded in the service record i.e. 30.1.1946 as the correct date of birth and the date of birth recorded as 31.1.1959 by making cutting/over-writing in the record, was rejected by the order impugned herein dated 22.11.2008.

Sri P.N. Saxena, learned Senior Counsel assisted by Sri O.P. Singh Sikarwar, learned Counsel appearing for the petitioner has tried to dispute the findings recorded in the impugned order on various grounds factual as well as legal.

However, in the opinion of the Court, the admitted facts which were noticed by this Court during the course of argument, concludes the entire controversy on facts against the petitioner. In this regard, it is necessary to highlight that one supplementary affidavit dated 14.8.2011, which was sworn by Sri Jai Nath Yadav S/o. Sri Bhuteli Yadav (petitioner) wherein he had clearly stated that he is aged about 40 years. Along with that affidavit, driving licence No. 42281 dated 29.5.2007 issued by the Licensing Authority, Deoria on 4.5.2007 has been filed as identity proof, wherein the date of birth of Sri Jai Nath Yadav S/o. Sri Bhuteli Yadav (petitioner) has been mentioned as 1.7.1972. The petitioner has throughout asserted that his date of birth is 31.1.1959. Therefore, if his son was born on 1.7.1972, his father (Sri Bhuteli Yadav-petitioner) would have been aged about 13 years only. This clearly indicates that the case presented by the petitioner is absolutely false, which has throughout been disputed by the respondents and a finding of fact has been recorded against the petitioner by the Joint Director of Education in the order impugned herein on the basis of evidence on record. The fact that real brother of the petitioner Sri Surya Nath Yadav was the Manager of the institution-Shanti Niketan Inter College, Deoria is not in dispute. A reference may also be made to the stand taken by the Principal of the institution before the Joint Director of Education. The relevant extract whereof is quoted as under:

The rejoinder submitted by the Principal of the Institution before the Joint Director of Education is also quoted as under:

Therefore, it is very much clear that the dates of birth have been manipulated by the petitioner in the family register to suit his own purposes. Therefore, if admittedly claimed case of the petitioner that his correct date of birth is 31.1.1959 is taken to be true and in view of the admitted age of his son Jai Nath Yadav whose date of birth is 1.7.1972, no other facts are required to be looked into as admission is the best piece of evidence. Both the dates noted above are the admitted case of the petitioner. In such view of the matter, it is not necessary to go into the other factual or legal aspects regarding dispute of date of birth of the petitioner.

In pursuance of the order dated 27.5.2015 passed by this Court, an X-ray report No. ML No. 1438 dated 10.7.2015 along with the certificate of age issued by the office of Chief Medical Officer, Allahabad was produced before this Court. However, after the arguments by the respondents-State, the reports were returned to the learned Standing Counsel. Subsequently, at the time of dictation of the judgment when the consideration of such reports was required, the learned Standing Counsel was requested to supply the same. On this, learned Standing Counsel had supplied the photocopies of the reports, which are taken on record.

A perusal of the reports submitted by the office of the Chief Medical Officer, Allahabad is also little shocking as in one of the document i.e. the X-ray report No. ML No. 1438 dated 10.7.2015 it has been mentioned that the petitioner is above 50 years and in the certificate issued by the office of the Chief Medical Officer, Allahabad information has been given on the basis of X-ray report, general examination and appearance of the petitioner as about 57 years whereas the report was to be submitted on the basis of ossification report and not on the basis of appearance of the petitioner. Further, as noted above in view of the admittedly claimed date of birth of the petitioner and admitted date of birth of his son, the report submitted by the office of Chief Medical Officer, Allahabad does not inspire confidence.

In case the radiological age, which is stated to be 50 years vide report of the radiological dated 10.7.2015 is taken to be above 50 years or say about 50 years and the age of his son of the petitioner Jai Nath Yadav whose date of birth is 1.7.1972, his age would be 43 years meaning thereby the age difference between them would be around 7 years. In case the certificate issued by the Chief Medical Officer, Allahabad, which is to the effect that the petitioner is aged about 57 years as on 10.7.2015 is taken to be correct, then this difference between the son and father would be around 14 years. As already noticed that the petitioner has throughout asserted that his date of birth is 31.1.1959 and the date of birth of his son is. 1.7.1972, then the age difference comes to 13 years. In such view of the matter, the findings regarding age of the petitioner in the order impugned herein are correct.

In view of the aforesaid, no interference is called for in the impugned order dated 22.11.2008 passed by the Joint Director of Education 7th Region, Gorakhpur holding that the correct date of birth of the petitioner, as originally recorded in the service book of the petitioner, is 30.1.1946.

Since, the above admitted dates clearly indicates that the petitioner has not come up with clean hands and is indulging in frivolous litigation either by himself or at the instance of any other person against the respondents, which is reflected from the perusal of the record, the present writ petition is dismissed with a cost of Rs. 20,000/- ( Rs. Twenty Thousand), which the petitioner shall deposit with the Registrar General of this Court within a period of one month from today. On deposit of such cost, it shall be transmitted to the account of ''High Court Legal Services Committee, Allahabad''.

If the petitioner fails to deposit the cost of Rs. 20,000/- ( Rs. Twenty Thousand), the Registrar General of this Court shall inform the District Magistrate/Collector, Deoria for recovery of the said amount as arrears of land revenue, who shall after recovering the said amount from the petitioner, transmit it to the Registrar General of this Court for depositing in the account of ''High Court Legal Services Committee, Allahabad'' within a further period of three months. Accordingly, for the reasons and discussions as made hereinabove, the petition stands dismissed.