RAM DEV Vs. DEPUTY COMMISSIONER

JUDGEMENT

(1.) The petitioner is an illiterate person but knows to sign his signatures in Hindi. On 13-6-1949 he applied to the Superintendent, Kilokri, .Sewage Pumping Station under Delhi Joint Water and Sewage Board, for appointment as Beldar. The application was made in Hindi. Its translation reads as follows :

(2.) The counsel for the petitioner contends that normally a school leaving certificate or a matriculation is accepted as a good evidence for determining the date of birth but the petitioner has never gone to school and, therefore, he could not produce any such certificate. The petitioner's application for appointment is one line application wherein he has not stated his date of bir.th. No doubt the petitioner had signed the service roll in which his year of birth was shown as 1922 but the submission of the counsel is that more importance cannot be attached to the said signature of the petitioner regarding the correctness of the year of birth as the petitioner is an illiterate person. The respondents have not denied in the counter-affidavit that the petitioner is not an illiterate person but have merely stated that for want of knowledge nothing can be said about the said assertion. The counsel them contends that it was practice to send an employee for medical examination for ascertainment of the date of birth as' nearly as possible, where no other evidence was available. The counsel argues that his date of birth was so ascertained in 1951 and the medical certificate was on the record of the respondents. It is then stated that in spite of the medical certificate | on record the year of birth was not corrected. He relies |on the decision reported in Jiwan Kishore v. Delhi Transport Corporation and another, 1980 (2) S.L.R. page 513(1) wherein it has been held that the examination by a Doctor |Medical Practitioner is a most scientific method of asicertaining the date of birth. He relies on the decision of the High Court of Himachal Pradesh reported in Shri Nanak' Chand Vaidya v. State of Himachal Pradesh and others, 1976 (1) S.L.R. page 402(2) and submits that he has a statutory right to continue in the employment till the completion of 60 years and the right cannot be taken away by any administrative instructions. The statutory right cannot be denied for delay in the request for correction|change of date of birth.

(3.) The counsel for the respondents assails the said submissions. He contends that according to the Government instructions the entry of the date of birth in the service roll is final and can be changed only in exceptional circumstances. The representation for the change has to be made beyond five years from the date of the superannuation. The petitioner had moved the authorities within five years of his date of superannuation calculated on the basis of the birth of year being 1922. He relies upon Ministry of Home Affairs O.M. No. F. 911!71-Ests.(A) dated 17-11-1962, administrative instructions of the Municipal Corporation of Delhi No. 41/B.E.S.(M). dated 18-6-1969 and Rule 79(2) of the General Financial Rules, 1976. The counsel also submits that a character certiflicate was issued to the petitioner in 1959 on his own request in which his date of birth, as recorded, in the service roll was mentioned. He strongly submits that the petitioner was confirmed and promoted on the basis of the original date of birth but the petitioner did not make any rep'resentation till 1977 against the original date of birth shown in the service roll. He was, therefore, stopped from raising the question when his retirement was nearing . As for the medical certificate the counter affidavit of the respondents asserted : "The petitioner was only sent to the Medical Officer for his medical check up and to get a certificate of medical fitness. The doctor can only give his opinion as to the approximate age of the person examined by him, but he cannot ascertain the date of birth of the person examined by him. Certificate of a doctor regarding his age is only an opinion and cannot be considered to be authentic for the actual date of birth of a person. In the instant case, the date of birth had already been recorded on the basis as disclosed by the petitioner at the time of starting the service book. All contentions contrary to what is recorded in the service book are after-thought and motivated. No reliance can be placed on the certificate relied upon by the petitioner." The genuiness of the medical certificate was, however, not doubted in the counteraffidavit. At the time of the hearing, however, the counsel for the respondent argued that there was no date at the ^ top of the letter, nor was the name of the petitioner mentioned. The letter| certificate did 'not bear any outward number, nor was there any seal of the office. He also contends that the certificate was not by the Board of Doctors but by a single Doctor and cannot be relied upon. He then submits that the Doctor has not stated any reasons and such a medical certificate is not reliable. He has relied upon Moti Lal v. Emperor, AIR 1939 Allahabad, page 701(3). Nathu and another v. Emperor, A.T.R. 1931, Lahore 401 and Laimayum Tonjou Singh v. Manipur Administration. AIR 1962 Manipur, page 5(5). He distinguishes the Supreme Court judgement reported in 1980(2) S.L.R. 513 on the ground that the medical examination in the said decision was done by the Board of Doctors and also on the ground that the Supreme Court decision was virtually a consent order. The counsel for the petitioner has repudiated the respondents' submission regarding the genuineness of the medical certificate. He submits that the medical certificate was issued in 1951 and the Government's own omissions in regard to the date or office number or seal cannot be utilised by the respondents for challenging the genuineness of the said certificate after 30 years. This was prohibited by Section 90 of the Evidence Act.