KHALIL AHMAD Vs. STATE OF U.P.

JUDGEMENT

(1.) THE dispute in this petition pertains to petitioner's date of birth which has a bearing on the date of his retirement from service. According to the petitioner his date of birth is December J8, 1924 and he was liable to retire from service on the last day of the month of December 1982 i.e. December 31, 1982, when he attained the age of superannuation viz., 58 years. According to the opposite parties the petitioner's date of birth is July 1, 1923 and, therefore, he attained the age of 58 years on June 30, 1988 and became liable to be retired from service on July 1, 1981. The facts about which there is no dispute are as follows: The petitioner was recruited as constable in the U.P. Police on August 2, 1943. After earning promotions he ultimately became Sub -inspector of Police. While posted as Sub -inspector of Police, he received an order dated January 23, 1981 which mentioned that he would attain the age of 58 years on June 30, 1981 and he would, accordingly, retire from service with effect from July, 1, 1981. On receipt of this order the petitioner preferred representation on February 9, 1981 which was rejected in June 1981. The petitioner filed writ petition No. 3027 of 1981 in this Court and got an interim order against his retirement with effect from July 1, 1981. The writ petition was ultimately dismissed on February 18, 1982 on account of availability of alternative remedy before the U.P. Public Services Tribunal. The petitioner approached the Tribunal under Section 4 of the U.P. Public Services (Tribunals) Act, 1976. The Tribunal, however, dismissed the claim petition on August 17, 1982 whereafter the present writ petition was filed in this court on August 23, 1982. It was admitted on August 24, 1982. On the same day an interim order was passed to the effect that the petitioner will be allowed to continue in service till December 1982 provided he gave an undertaking before the opposite parties that in case the Writ Petition fails, the excess amount paid to him shall be refunded by him or that the same may be realised from him. On February 27, 1986, the opposite parties filed C.M. Application No. 2594 (W) of 1985 for vacation of 'the interim order along with the counter affidavit. This application came up for disposal before me on March 17, 1986 when by an order of that date it was clarified that the interim order was operative only upto December 1982, and therefore, the interim order was no longer in operation. The Writ Petition has now come up for final hearing after exchange of counter and rejoinder affidavits.

(2.) A perusal of the order of the Tribunal indicates that on behalf of the opposite parties it was passed that in view of U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 it was not open to the petitioner to claim correction of his recorded date of birth. It further appears that on behalf of the petitioner it was asserted that the recorded date of birth had not been entered in accordance with the procedure prescribed under paragraph 3D of the U.P. Police Office Manual and, therefore, no reliance can be placed upon the recorded date of birth. The Tribunal found that the petitioner indeed was not entitled to challenge the recorded date of birth in view of 1974 Rules. The Tribunal further came to the conclusion that the first page of the petitioner's service Roll which contained the year of his birth as 1923 had been thumb marked by the petitioner himself and, therefore, it will be presumed that the recorded entry was made after explaining the entry to the petitioner in accordance with paragraph 301 and, therefore, it cannot be said that the entry was recorded in violation of the said provision. The tribunal observed that the year of birth was recorded with the knowledge thereof to the petitioner from the very beginning and if the petitioner thought that the said year was wrongly recorded he should have agitated the matter earlier and should not have waited for the close of his service period for agitating the same.

(3.) RULE 2 of the U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 reads as follows : - -