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Judgment
D.K. Seth, J.—The petitioner''s date of birth was recorded as 26121926 in the service record. The petitioner had produced sometime in 19/8 a School Certificate showing his date of birth as 1571935. According to Mr. Arun Kumar Gupta, learned Counsel for the petitioner, the date of birth of the petitioner at the time of entry cannot be the correct date of birth since in 1963 when he entered the service he was found overaged. Though in the seniority list dated 211981 it was pointed out that the petitioner''s age which was not recorded in the seniority list would be recorded on the basis of School Certificate issued by the Basic Education Officer, Rai Bareilly. Accordingly, the petitioner had produced in 1985, a certificate countersigned by the District Basic Education Officer showing the date of birth as on 1571935. Relying on Regulation 13 of the U.P. Cooperative Societies Employees Service Regulation, 1975 (hereinafter called as the 1975 Regulation), Mr. Gupta submits that it is only the School Certificate which is to be accepted as the reliable document for proof or age and no other document could be entertained. He relies on the decisions rendered in the cases of Choote Lal v.District Inspector of Schools, 1992 (2) UPLBEC 1247; Nalni Ranjan Vidyarthi v. Chairman, Life Insurance Corporation of India, Central Office Bombay and others, 1991 (1) UPLBEC 584 and Mahendra Nath Chaubey v. The Superintendent Engineer and others, 1990 (3) UPLBEC 1784 and contends that the change of date of birth could be made only after giving opportunity to the petitioner.
In the circumstances he contends that the petitioner could not have been retired on the basis of the date of birth recorded in his service book as 26121926, therefore, the prayers made in the writ petition should be allowed.
Mr. A. Kumar, learned Counsel for respondents, on the other hand, relying on various documents which are annexed in the counteraffidavit as annexures contends that the petitioner had given the date of birth at the time of his entry as 26121926 and in support thereof he had produced horoscope wherein the date of birth appears to be in 1927 and that subsequently in 1978 has produced school certificate showing his date of birth as 1571935. By reason of wide difference, the petitioner was referred to Chief Medical Officer who had opined his age on the date of examination was 52 years. Accordingly in the record of the office, his date of birth was taken as recorded in the service record. There is no order, according to him, seeking to alter the petitioner''s age. On the other hand, the petitioner sought to alter his age as recorded in the service book. Since the question is a finding of fact and has been decided, therefore, it is not open to this Court to interfere with the same. If the petitioner is aggrieve, it is open to him to establish his claim in a civil suit.
After having heard, learned Counsel for the parties, it appears that the date of birth of the petitioner in the service as on 26121926 is an admitted position. The petitioner produced school certificate in 1978 to show that his date of birth was 15 71935. Therefore, it was the petitioner who sought to get the said date of birth corrected. Therefore, it is not the case for changing of date of birth by the employer. In the facts and circumstances of the case, therefore, the decision rendered in the case of Mahendra Nath Chaubey (supra) has no manner of application since the said case was concerned with the review of date of birth and that too without opportunity which results in serious consequences adversely affecting the person. The said case is distinguishable from the facts of the present case. The ratio decided therein therefore, cannot be attracted.
Similarly the decision in the case of Nalni Ranjan Vidyarthi (supra) was also concerned with the alternation in the date of birth by the employer wherein similar view was taken that such alteration by the employer in the date of birth can be made only after notice or opportunity of hearing to the person concerned. Thus the ratio decided in the said case is also not attracted to the facts of this case. The decision in the case of Chhote Lal (supra) is also on the same line relating to change in date of birth by the employer without opportunity to the employee. Thus the said ratio also cannot be attracted to the facts of the present case.
In the counteraffidavit several documents have been annexed wherefrom it appears that by a letter dated 10366 (AnnexureCA1) the petitioner had forwarded his horoscope for the purpose of proving his date of birth. From a letter dated 13978 (AnnexureCA2) it was pointed out that a school certificate produced by him shows difference of 8 years between the date of Birth recorded in the service book and that in the school certificate therefore, it was necessary that the should be examined by the Chief Medical Officer. By a letter dated 161078 (AnnexureCA3) the petitioner had requested the employer to return the horoscope since he had submitted the school certificate. On the said letter, an endorsement by the employer was made to the effect that in view of 8 years difference between the two dates it was proposed that he should be examined by a Civil Surgeon and accordingly such a decision was taken on the basis of such proposal by the competent authority on 181078. Accordingly on 111178 (AnnexureCA4) by a letter of even date the Chief Medical Officer was asked to examine the petitioner and determine his age. In the said letter, it was pointed out by the Secretary that from the physical appearance it appears that the petitioner was about 55 years of age. In the said letter it was pointed out that according to the horoscope, his date of birth was 3727 whereas according to his school certificate he was born on 1571935. Pursuant to the said letter dated 11 11 78, the Chief Medical Office examined the petitioner and had forwarded his opinion through a letter dated 261278 (AnnexureCA5). In the said letter, the Chief Medical. Officer had opined that from the general appearance and body development, the petitioner was about 52 years of age on the date of examination. The petitioner had also signed on the said opinion. Thereafter on 13781 (Annexure CA6), the petitioner prayed for correction in date of birth in the service record. By an order dated 61187, the petitioner''s said representation was dismissed.
The documents which according to Mr. Gupta are the sheet anchor of the petitioner are Annexures 1 and 2 to the writ petition. Mr. Gupta lays stress on the note below the seniority list. But the said note is subject to the decision of the authority concerned inasmuch as in 1978 on the basis of the opinion of the Chief Medical Officer the authority concerned had recorded his date of birth as on 26121926 by an endorsement made on the said opinion of the Chief Medical Officer. The said endorsement is dated 281278. After the same is decided and prior to the making of the application dated 13781, there was no scope for reopening the case of the petitioner. The petitioner placed reliance on the seniority list dated 2181 wherein it was indicated below signature appended to the seniority list that the petitioner''s age which was not recorded in the seniority list would be recorded on the basis of School Certificate issued by the Basic Education Officer. But the said seniority list, Annexure1 to the writ petition, does not show that said note mentioned below the signature of the seniority list was also signed by the administrator who had signed the seniority list. The said note appears to have been appended below the signature and that too in the form as of a note. It is very difficult to accept the contention made in the said seniority list particularly in view of the decision already taken on 28121978. Then again the application dated 13781 filed by the petitioner stood decided by an order dated 61187 which is AnnexureCA7 to the counteraffidavit. The same is a question of fact determined by the authority concerned. While sitting in writ jurisdiction this Court cannot interfere with the finding of fact unless the same is perverse. From the record as disclosed it does not appear that the said finding is perverse or based on no material. Theretore, on the question of finding of fact, I am not inclined to interfere with the matter.
Mr. Gupta contends that in view of Regulation 13 of 1975 Regulation, the said finding is contrary to law. Admittedly, Regulation 13 came into force in 1975 namely long after the petitioner had entered into his service and the entry in the service record was made. Nothing has been provided in the said regulation that what would happen if any correction was sought to be made by a person appointed before the 1975 Regulation. The regulation does not provide any provision imposing any obligation on the administration to correct the date of birth No such provision has been incorporated in the said regulation, neither to any such provision my attention has been drawn. Mr. A. Kumar, learned Counsel for respondents contends that unless there is a statutory obligation on the administrator to correct the said date of birth, no mandamus can be issued and it is only the Civil Court where the petitioner can seek his remedy.
In my view the Regulation 13 having been made applicable from 1975, would not be said to be a determining factor for the cases where the date of birth has already been recorded. Then again in the facts and circumstances of the case when even on medical examination the petitioner was found to be of 52 years of age and according to the Secretary of the Bank his appearance seems to be 55 years and the petitioner himself had produced a horoscope showing his date of birth as on 6727, the question is to be weighed with. As to the acceptability of the school certificate it was not having attested and only in 1985 the attested certificate was sought to be produced when the question was already stood determined on 281278 it does not seem to be correct that Regulation 13 would applicable in the instant case.
Mr. Kumar, learned Counsel for the respondents relies on the decision in the case of Union of India v. Harnam Singh, 1993 (2) SCC162, wherein it has been held that in case of delay in seeking alteration of the date of birth by an employee, the same may not be entertained. It was held that delay if unexplained will stand in the way. In the present case it cannot be said that delay has been unexplained. The petitioner had been trying to get his date of birth corrected since long before. Therefore, the decision cited by Mr. Kumar does not help him. Mr. Kumar further relied on a decision in the case of State of M.P. v. R.P. Sharma, 1996 (1) SCC 516. The said decision also does not help him in the facts and circumstances of the present case inasmuch as in the said case, the date of birth entered in the service record was examined by a handwriting expert and was found to be fabricated and therefore no reliance was placed on the same. The next decision cited by Mr. Kumar is in the case of The Secretary and Commissioner Home Department and others v. R. Kirubakaran, JT 1993 (5) SC 404, wherein it was held that the dispute with regard to the date of birth raised on the eve of superannuation should be interfered with in rare cases namely where an unimpeachable prima facie evidence is produced. In the present case, the petitioner has not been able to produce any prima facie evidence of unimpeachable character otherwise (he same appears to have been disputed as observed earlier. The petitioner was said to have been retired in 1987. The application for correction of date of birth was made in 1981. Therefore, it cannot be said that the application was made on the eve of superannuation.
However, in the facts and circumstances of the case the petitioner has not able to make out that his date of birth was wrongly recorded in the service record as observed earlier. Therefore, I am not inclined to interfere with the matter.
The writ petition fails and is accordingly dismissed.
Before parting with, I record my appreciation of the arguments advanced by Mr. Arun Kumar Gupta, learned Counsel for the petitioner and Shri A. Kumar learned Counsel for respondents.