Full Judgment
D.K. Seth, J.
1. After the amendment is allowed. Mr. K. R. Singh, learned standing counsel submits that he is not required 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 consent 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, 1998, by a notice dated 12th November. 1997 (Annexure-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 petitioner has been recorded as 15th July. 1943 in the certificate of High School Examination. Therefore, 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.
3. Mr. W. H. Khan, learned counsel for the petitioner contends that the date of birth had been corrected some times in 1990 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.
4. But the said contention does not appear to be acceptable. Since on the basis of Annexure-5 to the writ petition, it appears that the petitioner had applied for correction of the date of birth from 1st July, 1940 to 15th July. 1943 by means of an application dated 14th November, 1997. If the date 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.
5. Mr. W. H. Khan then contendsthat the date of birth appearing in theHigh School Certificate should berecorded in the service book byreason of Rule 2 of the Uttar PradeshRecruitment to Services(Determination of Date of Birth)Rules, 1974. He contends that sincethe date of birth recorded in theservice book is 1st July, 1940,therefore the service record shouldhave been corrected in pursuance tohis application dated 14th November,1997 and he cannot be asked to retireon the basis of his date of birth as on1st July. 1940. Therefore, the writpetition should be allowed and the petitioner should be allowed to continue till the date of superannuation on the basis of the date of birth as on 15th July, 1943.
6. 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 is approximate date of birth as 19 years as is apparent from Annexure-C.A. 1. He further contended that had the petitioner produced the certificate, in that event he would have been declared disqualified to join the services since he would not have been completed 18 years of age on the basis of the date of birth recorded in the certificate at the time of recruitment. If he himself suppressed the same and obtained undue advantage on the basis of the date of birth declared by himself, 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 existence of the High School certificate till he applied for correction. Therefore, the writ petition should be dismissed.
7. Mr. W. H. Khan, replying to the contention, contended that even if the case of the respondents are accepted. In that event the petitioner's date of birth should be recorded on the basis of the report of the Civil Surgeon as 19 years at the time of entry into the service record which then would be as in 1942.
8. I have heard both the learned counsel at length.
9. So far as the report of the Civil Surgeon. Annexure-C.A.1 isconcerned, it is only a report verifyingthe age stating that he wasapproximately 19 years. It can be oneyear less or more. The petitionerhimself had signed the service recordand accepted the date of birth as 1stJuly, 1940 and did not disclose thecertificate at the time of entry into theservice. He had neither produced thecertificate nor disclosed it until 14thNovember, 1997. It is alleged that thepetitioner himself had given his dateof birth as 1st July, 1940 in hisapplication on the basis whereof thesame was recorded in the servicebook which was endorsed by him notonly by putting his signature but alsoby putting his thumb impression. If itis accepted that the petitioner hadpassed his High School Examination,in that event he was expected to becapable of reading and ofappreciating the meaning of recordingof date of birth in the service record.Admittedly, petitioner had put in 37years of service. During the course ofhis service, he had never attempted toget the date of birth corrected nor hadasserted that his date of birth wasIncorrectly recorded in the servicerecord. Therefore, the petitionercannot rely upon the report of theCivil Surgeon declaring his ageapproximately 19 years at the time ofentry into service. For purposes ofcorrection of his date of birth, thedate of birth cannot be corrected onthe basis of the report of the CivilSurgeon. In view of the Uttar PradeshRecruitment to Services(Determination of Date of Birth)Rules, 1974, which specificallyprovided that such alteration can bemade only on the basis of the HighSchool Certificate or equivalentexamination. The report of the CivilSurgeon cannot be equated with theHigh School or equivalentexamination.
10. In case the date of birth recorded in the High School Examination is to be accepted, then the petitioner would not have completed 18 years of age at the time of recruitment. The petitioner had Joined on 24th May, 1961 after having taken part in the selection which might have been started at least few months earlier. Therefore, it seemsthat there are force in the submission that the petitioner had suppressed the certificate in order to avoid that the petitioner was below 18 years at the time of entry in service which was a disqualification. By suppressing such certificate, the petitioner had obtained the advantage of joining the service though according to the certificate he was below 18 years of age and was disqualified. After having obtained such an advantage through wrong process, the petitioner cannot take advantage of it and is estopped. The Court cannot come in way of such person to help him when he comes out with the case of correction of age two days after the notice was issued to him that he would be retiring on 30th June. 1998 by means of the notice dated 12th November, 1997. Inasmuch as he had applied for the first time for the correction of age on 14th November. 1997.
11. Mr. K. R. Singh, learned standing counsel had relied upon heavily on Rule 2 of the Rules which provides as follows :
'2. Determination of correct date of birth or age.--The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation of his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date of age in any circumstances whatsoever.'
12. A plain reading of the said Rule shows that the date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalentexamination at the time of his entry into the Government service is to be recorded. Admittedly, at the time of entry into the service, the petitioner was in possession of a certificate but he had not produced the same since the production thereof could have disqualified him. On the other hand, he had taken advantage of the position that he had not possessed the High School certificate at the time of his entry into service and got his service book prepared accordingly recording the date of birth as 1st July, 1940 as given by him in his own application since been endorsed while signing the service record himself which he had allowed to continue for long 37 years without applying for alteration. He could have applied for alteration in 1974 when 1974 Rules came into force or soon thereafter. But the petitioner did not do so and had allowed the same record to continue till he was asked to retire by the notice dated 12th November, 1997.
13. Rule 2 contemplates of two situations ; one that at the time of entry into the Government service the date of birth as recorded in the certificate of High School, if passed, is to be recorded and the other is that if he passed such examination after entry into the Government service then it should be deemed to be the correct date of birth. Mr. Khan had placed reliance on this exception by reason of the deeming clause in Rule 2 and contended that by reason thereof the date of birth as was recorded in the certificate, ought to have been treated as date of birth and therefore correction may be made at any point of time.
14. Mr. Khan had relied upon a decision in the case of Sant Saran Saxena v. U. P. Public Services Tribunal and others, 1991 AWC 104. But the said decision does not help him in the facts and circumstances of the case. Inasmuch as in the said case, the date of birth of the petitioner was correctly recorded in the service book as 10th November, 1936. But by mistake in the character roll the date of birth was recorded as 10th November. 1931. The petitionerwas asked to retire on the basis of the date of birth recorded in the character roll as on 10th November, 1931 though from the High School certificate it was apparent that the date of birth was 10th November, 1936 as was recorded in the service book. Whereas in the present case the date of birth was recorded in the service book as 1st July, 1940 and the petitioner had never produced the certificate until he was asked to retire. The decision in the case of Ishwari Dutt Joshi v. State of U. P. and another. 1990 (3) UPLBEC 1551, was relied upon by Mr. Khan, in the said decision it has been held that the date of birth as recorded in the High School certificate should have been accepted as correct date of birth and accordingly the service record can be corrected even at a late stage. In the case of Roop Singh Yadav v. Stale of U. P. and others, 1987 AWC 1394, it was held that the date of birth as recorded in the High School certificate should be the correct date of birth to be recorded in the service record in terms of 1972 Rules even at the fag end of the career. These two decisions cannot be relied upon in view of the decision in the case of Bum Standard Co. Ltd. and others v. Shri Dinabandhu Majumdar and another, JT 1995 (4) SC 23, inasmuch as in the said decision the Apex Court had expressed its dissatisfaction that writ courts are entertaining the application for correction of date of birth made at the fag end of the career and had deprecated the such practice and had observed that the writ petition at the fag end of the service career for correction of the date of birth in the service record cannot be entertained. Thus with great respect, the above said two decisions cannot be followed with regard to the question of correction of age at the fag end of the career though the principle that the date of birth appearing in the High School certificate is to be preferred and accepted when there is discrepancy in the date of birth recorded in the service record and the certificate, sought to be corrected at appropriate stage, but not in relation to the present case where such a correctionwas sought for only when the notice to retire was issued on 12th November, 1997 by means of an application dated 14th November, 1997.
15. Admittedly the fact remains that if the certificate was relied upon at the time of entry in service, the petitioner would have disqualified himself for the service. Thus the petitioner has not come with clean hands. He has not explained as to why he did not produce the certificate at the time of entry into service. He has not explained why he did not apply for correction of age earlier. In view of this distinction, I am unable to follow the said two decisions. While on the other hand, the Apex Court decision overrules the ratio by implication to the extent that such corrections can be carried on even at the fag end of the career.
16. One cannot be allowed to have the best of the both ends. Once the petitioner having overcome his disqualification by non-production of the certificate, he is estopped from relying on the same for extending the service particularly when he himself had accepted and acquired with the date of birth so recorded by signing the service record and not seeking to correct the same till the notice to retire was issued.
17. Mr. K. R. Singh, learned standing counsel sought to reply upon a decision in the case of Sarwar Ali v. Municipal Board, Merhara, Etah, 1999 All CJ 236, rendered by a Division Bench of this Court. In the said case, the petitioner had passed High School Examination and in the certificate his date of birth was recorded as on 7th July, 1933, but the same was not produced at the time of entry into service. It was explained in the writ petition that the petitioner had deposited the certificate with the respondents and as such the same was not available to him but such an allegation was not accepted. In this background, the Court had taken the view that the petitioner having signed the document namely service record, it is to be presumed that he had accepted the contents of the service record including the date of birth.However, this decision does not help him in the present case where the school certificate has been produced though after 12th November, 1997.
18. For what has been stated above, the writ petition falls and is. accordingly, dismissed. There will, however, be no order as to costs.
Let a certified copy of the order be made available to the learned counsel for the petitioner on payment of usual charges at the earliest.