SURENDRA TEWARI Vs. STATE OF U P

JUDGEMENT

(1.) R. B. Misra, J. Heard Sri Anil Kumar Misra, learned counsel for the petitioner and Sri S. S. Sharma, learned Standing Counsel for the respondents. In this petition prayer has been made to quash the order dated 10-2-1992 (Annexure-7 to the writ petition) passed by the Additional District Magistrate (Finance), Azamgarh, whereby the petitioner's representation dated 27-12-1991 rendered before the respondent authority in the light of the order dated 13-12-1991 of the High Court passed in Writ Petition No. 10930 of 1989 was rejected and the petitioner was directed to receive the post retiral benefits considering him to be retired.

(2.) IT appears that the petitioner was not matriculate/high School pass, working as Collection Peon in District Azamgarh and had got his date of birth as 19-6-1929 entered in the service book on his statement and assertion, which was duly verified from time to time by him as the service book was in Hindi, was recorded whereas the petitioner claimed to record his date of birth on 4-5-1932. However, taking 19-6-1929 as the true date of birth completing 60 years of age the petitioner was retired on 30-6- 1989. According to the petitioner he came to know only in the month of June 1989 that he was going to retire, therefore, he gave application and representation to the respondents referring the case of one Sri Raj Narain Mishra, who was also a collection peon and on whose representation his date of birth was corrected even at the fag end of the career. Petitioner for the purpose for getting the date of birth corrected had filed school leaving certificate from Junior Basic Vidyalaya, which he had not earlier submitted even during the service period and on the basis of the certificate the petitioner claimed for alteration and correction of the date of birth. However, the petitioner was retired on 30-6-1989, thereafter he filed writ petition namely Writ Petition No. 10930 of 1989, which was disposed of on 13- 12-1991 with a direction to the authorities to consider the representation of the petitioner and decide the same within stipulated time. While disposing of the petition in the order dated 13-12-1991 this Court has already observed that this Court in exercise of its jurisdiction under Article 226 of the Constitution cannot go into the disputed question of fact i. e. after adjudicating to decide the disputed question of date of birth. In the light of the order dated 13-12-1991 the representation of the petitioner was considered by the Officer In-charge (Collection), Azamgarh and the same was rejected as indicated above. In the present writ petition the said order is challenged by saying that no analysis has been made and no reason has been given by the authority concerned before rejecting the representation on 10-2- 1992 the evidences have not been considered led by the petitioner as school leaving certificate, medical certificate and other documents namely certificate of primary school. According to the petitioner the impugned order dated 10-2-1992 has been passed by the respondents in arbitrary and mechanical manner, without application of mind and the authorities concerned have also not considered that one Sri Raj Narain Mishra, Collection Peon, got his date of birth corrected even at the fag end of the career. According to the petitioner he had always served with sincerity and devotion and by not correcting the date of birth as claimed by him the authority concerned is depriving him from the livelihood and debarring him to work for the remaining period in service.

(3.) IN the case of Adhishashi Abhiyanta, Electricity Board, Rihand and Hydel Civil Div. U. P. State Electricity Board, Allahabad and another v. Shitla Prasad and another, Special Appeal No. 383 of 1989, decided on 17-9-1993, a Division Bench of this Court has held that : ". . . . . . . in our opinion, the medical fitness certificate dated 25-7-1974 could not be treated an opinion of the Doctor regarding the age of the petitioner. The certificate has been given in the proforma prescribed under Fundamental Rules 10. The Doctor had examined the petitioner in order to ascertain as to whether he suffered from any communicable disease or otherwise and whether he had any constitutional weakness or bodily infirmity which would constitute disqualification for employment in the Hydel department. The Doctor was not asked or required to give an opinion regarding the age of the petitioner. There are well know scientific methods to ascertain the age of a person and ossification of bone gives a fairly accurate idea regarding the age. However, for this purpose X-ray examination has to be performed in case of Doctor had been asked to give his opinion regarding the age of the petitioner he would have performed necessary tests including X-ray examination etc. and would have also given the scientific date on the basis of which he would have formed his opinion about the age. The Doctor while giving opinion about the age of a persons is if the. . . Nature of the an expert and in absence of necessary scientific date. . . weight in view of Section 45 of Evidence Act. We are clearly of the opinion that the medical fitness certificate dated 25-7-1994, could not at all be treated as an opinion of the Doctor regarding the age of the petitioner. As a consequence the said document could not be used for the purpose of determining his age. "