YUGUL KISHORE PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner's date of birth was entered into his service record as on 31st January, 1935 on the basis of his High School Certificate, wherein the same date of birth was recorded. Subsequently his date of birth as recorded in the service record was sought to be altered by reason of an enquiry made by the respondents from the Board with regard to the date of birth of the petitioner on the ground that the date of birth was recorded as on 1st January, 1933 in the records of the Board. The respondents had passed an order on 8th February, 1995, which is Annexure-5 to the writ petition, whereby it was pointed out that it was ascertained from the records of the Board that the petitioner's date of birth was recorded therein as on 31st January, 1933 and, therefore, he should have retired on 30th June, 1993 and, therefore, he is deemed to have retired on 30th June. 1993 and whatever, salary he had received after 30th June. 1993, should be refunded. This order has since been challenged in this writ petition.

(2.) Dr. Daya Shankar, learned counsel for the petitioner contends that by reason of the relevant rules, the date of birth of the petitioner as recorded in the service record on the basis of High School Certificate cannot be altered. Inasmuch by the said Rules, the High School Certificate shall be the basis of the date of birth where a candidate has passed High School Examination. It does not refer to any records other than the High School Certificate and, therefore, it is immaterial whether any other date of birth is recorded in the records of the Board. He contends further that even on the counterfoil of the Board from which the certificate was granted, the same date of birth having been recorded, there is every likelihood of a presumption that the date mentioned in the tabulation sheet or in the gazette must be wrong and the certificate must have been prepared on the basis of the record available in the Board particularly, the form submitted by the petitioner, which is the basis on which the date of birth of the petitioner has been recorded in the records of the Board. Unless the documents submitted by the petitioner is produced the presumption should be adverse as against the Board and be in favour of the petitioner. He also contends that Rule 8 pursuant to which at the best the date of birth could be altered, does not apply beyond the state of initial appointment and then again he contends that this is not a circumstance exceptional to the extent, which might necessitate alteration in the age of the petitioner. According to him, the petitioner was not at fault and there is nothing to show conclusively that the certificate was incorrect. On the other hand, the presumption being adverse against the Board, the benefit should go to the petitioner. Since there exists doubt, it should be beneficially interpreted in favour of the petition. On these grounds, the petitioner claims that he should be paid his retiral benefits on the basis of his retirement with effect com 30th June, 1995 and all arrears of salary. If not paid to him till that date.

(3.) Mr. K. R. Singh, learned standing counsel of the other hand contends that the records of the Board are those, which are preserved by the Board. It is only the tabulation sheet and the gazette, which are preserved and the gazette, being a public notice, the matter notified therein has an authenticity, which cannot be disputed unless the same is corrected and only when notification is issued correcting the notification already issued. There is no scope for resiling from that mentioned in the notification. Therefore, the gazette, which is a public notice, of which the petitioner is deemed to have notice, it was incumbent on the petitioner to get the same corrected. The petitioner has not taken any such step. There being nothing to show that the certificate certifying the date of birth recorded in the records of the Board, is not incorrect, the petitioner cannot claim any relief. On the other hand, relying on sub-rule (4) of Rule 8, relating to recording of date of birth, Mr. Singh contends that in exceptional circumstance, the date of birth recorded in the service record may be altered. According to him, the fact disclosed is an exceptional one, in that the certificate has certified the date of birth recorded in the record of the Board, but the record of the Board is different from the date which has been certified in the certificate. The certificate is certification of the date of birth recorded in the records of the Board. It has no value without the records. It is only a certificate certifying the date of birth as recorded in the records of the Board. If there is any discrepancy, the records of the Board is to prevail. Thus, this is an exceptional circumstance, where sub-rule (2) can be invoked even at a stage later than the stage contemplated in sub-rule (1) of Rule 8. The petitioner having not produced any School Leaving Certificate in terms of sub-rule (2) it is presumed that the petitioner had no ground to sustain the objection raised by the respondents and as such. It is not necessary to hold an enquiry as contended by Dr. Daya Shanker. Therefore, there is no infirmity in the order dated 8th February, 1995 and the writ petition, should, therefore, be dismissed.