ONKAR NATH SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) BY the present writ petition under Article 226 of the constitution of India the relief has been sought for issuance of a writ of certiorari to quash the order dated 24-5-86 (Annexure 5 to the petition) to the effect that the date of birth of the petitioner indicated in the High School certificate i.e. 5-1-192 J must be taken for the purposes of retirement.

(2.) FACTUAL matrix of the case is that the petitioner was appointed as Daftari in D. A. V. Intermediate College, Kanpur on 22-7-1947 and asserted 5-1-1929 as his date of birth, and he was promoted as Assistant clerk on 1-8-1949. In his service record 5-1-1929 was entered as his date of birth.- He bad not passed his High School Examination at the time he joined set' vice. Petitioners' date of birth, when later on he appeared in High School Examination, was mentioned in advertently by the authorities of Board of High School and Intermediate Education, U. P., as 5-1-1926. On that basis assuming 5-1-1926 the date of birth shown in High School Certificate, the impugned order had been passed. y

(3.) HAVING heard learned counsel for the parties, the point for determination is as to whether the date of birth as indicated in service record of the petititioner when he joined service, but has not passed the High School Examination, was correct, or whether the date of birth as indicated in the High School Certificate when the petitioner has actually passed the High School Examination subsequent to joining of his "service, was decisive for the purpose of his promotion and retirement etc. There is U. P. Recruitment to services (Determination of Date of Birth) Rules, 1974 and U. P. Recruitment to Services (Determination of Date?of Birth) (First Amendment) Rules, 1980 (Annexures 7 and 9 to the petition) Rule 2 of Rule 1974 (Annexures-7) is quite explicit and requires no external aid for interpretation. The said rule provides that the date of birth as entered in the High School Certificate would be determinative, provided he has passed High School Examination at the time he joined the service, and in case the employee concerned has not passed High School Examination at the time he joined service, in that event the date of birth indicated by him and entered in the service record would be decisive for the purposes of promotion, retirement etc. This provision was further clarified by the Amendment rule of 1980 (Annexure-9 to the petition), and it was made explicit in column II that in case an employee has not passed his High- School examination before he joins service, in that event the date of birth indicated by him and entered in the service record shall be relevant and final date of birth, whereas in case an employee has passed High School Examination and thereafter he joins service, in that event the date of birth entered in the High School Certificate shall be determinative and no application for correction of the same can be entertained.