D N BANJOLA Vs. STATE OF J&K

JUDGEMENT

(1.) A notice dated 12 -5 -1982 came to be issued to the petitioner that as per his date of birth recorded in the service book he was to attain age of retirement on 31 8 -1983, therefore he was liable to be retired. This notice came to be challenged by the petitioner through the medium of this writ petition on the ground that his date of birth was wrongly fixed and he was not liable to be retired on 31 -8 -1983. The petitioners contention is that his actual date of birth was 29 -8 -1930 therefore he would reach the age of superannuation in August 1985. The petitioner has a right to be in service upto August 1985 when he completes the age of 55 years. In short the petitioner contended that his date of birth could not be fixed arbitrarily by the respondents as August 1928 when in the service book there was an endorsement showing that the petitionerâ„¢s date of birth is 29th August 1930. Of course against the column showing date birth the following words appear" August 1928/30" but at the foot of it is recorded" date of birth 29th August 1930 per certificate issued by the headmaster Middle school Gandwal Distt. Gandwal Distt. Gadwal (Up) copy passed on the service book." The impugned letters is therefore, challenged as being illegal, and bad. The petitioner appears to have addressed a number of letters to the authorities asking them to rectify the mistake about his date of birth.

(2.) BEFORE the petitioner could be retired, according to the respondents, on 30 -8 -1983, he filed the writ petition in this court and obtained an interim stay to the effect that the petitioner shall be allowed to continue in service beyond 31 -8 -1983 at his own risk and responsibility. Therefore no order of retirement could be passed by the respondents against the petitioner and he continues to work on his post of course without pay.

(3.) REPLY affidavit has been filed by the respondents. They controverted the position and have stated that the petitioner has attained the age of superannuation on 31 -8 -1983. They have -admitted that the petitioner had submitted a School Leaving Certificate, copy whereof was pasted on the page of his service book showing by date of birth as 29 -8 -1930 but the same could not be treated as authentic because it was not counter signed by any Gazetted officer. As regards fixation of his date of birth it is contended that one S. S chima Driller confirmed the petitioners date of birth being August 1928. Reliance is placed on Art. 35 -A C S. R. by both the sides. This article lays down that in the case of an employee who is Matriculate, date of birth will be determined on the basis of date of birth recorded in the Matriculation Certificate; .in other cases various proofs are held to be relevant for determining the date of birth. However, this court cannot -go into the controversy as to what is the real date of birth of the petitioner