ATI AHMAD Vs. UTTAR PRADESH STATE ELECTRICITY BOARD

JUDGEMENT

(1.) The petitioner was asked to retire on attainment of 58 years of age by a notice contained in Annexure-7 to the writ petition being dated 21st August, 1995 informing him that he would be retiring with effect from 1st March, 1996 on account of attainment of 58 years of age on 29th February, 1996. Subsequently, another letter dated 16th November. 1995, contained in Annexure-10 was issued to the petitioner informing him that he would be retiring on 30th June, 1996 and the date 29th February, 1996, mentioned in the letter dated 21st August, 1995 is to be read as 30th June, 1996. These two notices have been challenged by means of this writ petition on the ground that the date of birth of the petitioner was recorded in the service record as 2nd February. 1940 on the basis of the High School Certificate. Therefore, the petitioner ought to retire on 1st March. 1998 when he would be completing 58 years of age.

(2.) Mr. S. C. Budhwar, learned counsel for the petitioner assisted by Mr. Arun Tandon contends that the U. P. Recruitment in Service (Determination of Date of Birth) Rules. 1974, were adopted by the respondents on 20th June. 1975 and as such the provision of the said Rules would not be applicable in a case where the date of birth is already corrected or recorded before the enforcement of the said Rules. According to him, in the service record original date of birth was recorded as in June, 1938, but the same was corrected as on 2nd February, 1940, on the basis of High School Certificate on 29th April. 1974. The said 1975 Rules came into force on May 28, 1974. Therefore, according to him, if the 1974 Rules cannot be applied, in that event, it could not be said that the petitioner's age could not be corrected, simply because that the petitioner had passed the High School Examination after his entry into the service. He next contends that the service book was corrected by the respondents themselves and had allowed the same to continue even till today and has not yet been corrected and as such, the respondents are estopped from challenging the same or ignoring the same. According to him, unless the said date of birth is corrected in the service book and the date of birth as in June. 1938 is restored, the respondents cannot compel the petitioner to retire on the basis of the date of birth since been scored out and substituted by 2nd February, 1940. He next contends that even if the date of birth recorded at the time of entry could be restored, the same can be done only by means of correction of the date of birth after giving an opportunity to the petitioner. There having been no opportunity given and no step having been taken to correct the date of birth, it was not open for them to retire the petitioner on the basis of the deleted date of birth. Mr. Budhwar had also relied on a circular issued by the Department on 17th December, 1974, a copy whereof was reproduced on 15th February, 1975. being Annexure-SA-1 to the Supplementary Affidavit in order to contend that before 1974 Rules were adopted the date of birth could be corrected on the basis of the said circular taking into account the High School Certificate irrespective of the date as to when the examination was undertaken namely, before or after entry into service. According to him the correction was made on 20th April, 1975, on the basis of this, circular dated 17th December. 1974. Therefore according to him the notice could not be sustained. He further contends that by reason of interim order granted in this writ petition, the petitioner had continued till 28th February, 1998 and since had retired on 1st March. 1998.

(3.) Mr. Arvind Kumar, learned counsel for the respondents on the other contends that the order dated 17th December. 1974 cannot be resorted to or relied upon by the petitioner since the application thereof was confined to the incumbents mentioned in the D.O. letter referred to therein which were in respect of the employees of the Lucknow Electric Supply Undertaking. Lucknow. The petitioner's name was not mentioned in the list of Lucknow Electric Supply Undertaking. Lucknow. Since the petitioner had at no occasion been employed there, therefore, no benefit could be derived out of the satd circular dated 17th December. 1974. He further contends that correction was made on 20th April. 1975, whereas the U. P. State Electricity Board had adopted the said 1974 Rules on 20th June, 1975, namely, only three months before the application of the said Rules were attracted. According to him, under the said Rules age cannot be corrected on the basis of a High School Certificate if such certificate is obtained after the entry into the service. Therefore according to him, the correction could not have been carried out. He further contends that the above correctior must have been corrected surreptitiously immediately before the enforcement of the 1974 Rules Therefore, the petitioner having taker advantage of a situation, which according to him is wrongful, the petitioner cannot now derive any benefit out of his own wrong which he had obtained. He further contends that in any event, by reason of the 1974 Rules since been adopted by U. P. State Electricity Board, the date of birth could not be corrected on the basis of High School Certificate obtained by the petitioner after his entry into service. He next contend; that in case the date of birth is accepted in that event, the petitioner would be less than 18 years and be disqualified to enter into the service and as such he cannot be allowed any benefit of such date of birth. Therefore, the writ petition should be dismissed.