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Smt. Vidya Devi v. State Of U.P. & Others - WRIT - A No. 44972 of 2004 [2007] RD-AH 12173 (17 July 2007)


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Court No.26

Civil Misc. Writ Petition No. 44972 of 2004

Smt. Vidya Devi Vs. State of U.P. and others

Hon'ble Vineet Saran, J.

The petitioner was appointed as a Washerwoman in the Employees State Insurance Maternity Hospital, Sarvodaya Nagar, Kanpur on compassionate ground after the death of her husband. Since she had not passed High School or equivalent examination, her date of birth was recorded in the service book as 12.5.1947 on the basis of medical examination. By the impugned order dated 15.10.2004 passed by the respondent no.2, the date of birth of the petitioner has been changed to 1.7.1942 and consequently she has been retired from service with immediate effect. Further an observation has been made in the said order that with regard to the payment made to the petitioner after her retirement, treating her date of birth as 1.7.1942, separate decision shall be taken.  Aggrieved by the aforesaid order, this writ petition has been filed.

Heard learned counsel for the petitioner as well as learned Standing Counsel appearing for the respondents. Pleadings have been exchanged and with consent of learned counsel for the parties, this writ petition is being disposed of at this stage.

The short question involved in this case is as to whether the date of birth of an employee entered in the service book can be changed by the employer or not.

Rule 2 of the U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974 provides for determination of correct date of birth or age of an employee. In the said Rule it is stated that the date of birth of a Government servant shall be that as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service, or where a Government servant has not passed any such examination the date of birth or age recorded in the service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age for all purposes in relation of his service and that  no application or representation  shall be entertained for correction of such date of birth or age in any circumstance whatsoever. Since the petitioner had not passed High School or equivalent examination, the date of birth was determined by the employer on the basis of medical examination and was recorded in the service book of the petitioner. According to the aforesaid Rule, no application or representation could be entertained for correction of such date of birth in any circumstance whatsoever. Once the date of birth cannot be changed at the instance of the employee, the same cannot be done at the instance of employer also. Even otherwise the impugned order has been passed without affording any opportunity of hearing to the petitioner and it is well settled law that any order determining the date of birth should be passed after complying with the principles of natural justice. As such on this ground also, the impugned order is liable to be quashed.

For the foregoing reasons, this writ petition stands allowed. The impugned order dated 15.10.2004 is quashed. The petitioner shall be entitled to all consequential benefits.

No order as to cost.




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