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Mohd. Yunus Khan v. U.P.State Electricity Board Basti - WRIT - A No. 18688 of 1992  RD-AH 160 (23 March 2004)
Civil Misc. Writ Petitin No. 18688 of 1992
Mohd. Yunus Khan Vs. State of U.P. and others.
Hon'ble V.C. Misra, J.
Heard Sri S.N. Yadav, learned counsel for the petitioner and Sri S.K. Misra, learned counsel for the respondents.
The facts of the case are that the petitioner was appointed on the post of patrolman in regular cadre w.e.f. 1.7.1968 and he was subsequently promoted on the post of lineman in the Electricity Distribution Division, Govind Nagar Kanpur (the EDD). Subsequently, he was transferred from Kanpur to Electricity Distribution Division, Basti. In the month of April, 1988 when he approached the office at Basti to know about the leave balance, he came to know that the date of birth of the petitioner had been wrongly entered in the service book and he immediately moved an application dated 30.4.1988 to the respondent no.3, the Executive Engineer that his date of birth 1.7.1948 as per school leaving certificate had been wrongly entered in the records as 1934 at the time of regularization of his services. The respondents took no action till September, 1989, subsequently the petitioner filed another application dated 2.9.1989. The true copies of these applications have been filed as Annexures 3 and 4 to the writ petition. The respondent no.3 vide its letter dated 3.10.1989 forwarded it to the office of respondent no.5 the Executive Engineer, EDD, Govind Nagar, Kanpur to correct the date of birth of the petitioner in his service book along with a school leaving certificate of the petitioner, a copy of which has been filed as Annexure No.5 to the writ petition.
This letter dated 3.10.1989, kept pending before respondent no.5. Meanwhile respondent no.2, passed the impugned order dated 7.4.1992 (Annexure No.6 to the writ petition) directing therein that since it is learnt through reliable source that the petitioner most likely should have retired w.e.f. 29.2.1989 and the payment of the salary of the petitioner be stopped till further orders. Respondent no.4 Sub.Divisional Officer,(SDO), Basti, EDD-II, Basti vide letter dated 7.4.1992 asked the petitioner to explain the correct position. The petitioner on receipt of the said letter contact respondents 3 and 4 personally and produced the school leaving certificate which he had had produced in the office of respondent no.5 at the time of regularization of the service.
According to the petitioner, and also subsequently accepted by respondents there was another person by the name of Mohd. Yunus Khan, S/O Amjad Khan, who was holding the same post and pay scale as that of the petitioner, who had at the time of regularization of services, submitted a medical certificate in support of his date of birth as 27.2.1934. The petitioner also submitted his school-leaving certificate of 5th Class in support of his date of birth which is shown therein as 1.7.1948. It has been stated in paragraph 13 of the writ petition that due to carelessness on the part of the official staff of respondent no.5, the medical certificate of Mohd. Yunus Khan S/o Amjad Khan was attached with the service book of the petitioner - Mohd.Yunus Khan S/o Mujeebulla and the school-leaving certificate of the petitioner was attached in the service book of the other Mohd Yunus Khan S/o Adjad Khan. In result whereof, the date of birth of both the persons were wrongly endorsed in the service books of each other.
The mater was taken up by respondent no.5, who while making a thorough enquiry found that the date of birth dated 27.2.34 which was recorded in the service book of the petitioner was based on the certificate issued by the Chief Medical Officer, Kanpur and on perusal of the said certificate it was found that it was recorded for an other employee i.e. One Mohd.Yunus Khan S/o Amjad Khan. The authenticity of this fact was verified by respondent no.5. He further advised his counterpart (respondent no.3) by a letter dated 18.9.1992 that he may at his level best amend the date of birth in the service book of the petitioner caused due to error,and obtained a medical certificate from the Chief Medical Officer, Basti in respect of authentication of the age of the petitioner and inform him (respondent no.5) accordingly.
The Executive Engineer, Basti vide its letter dated 30.9.2002 requested the Chief Medical Officer, Basti to examine the petitioner and recommend the age of the petitioner since the petitioner's medical certificate of Mohd Yunus Khan S/o Amjad Khan had been enclosed in the service record, though the date of birth of the petitioner as per school leaving certificate was dated 1.7.1948. A true copy of this letter has been Annexure -I to the affidavit forming part of the amendment application dated 3.12.2003.
The Chief Medical Officer vide his medical report dated 3.10.2002 in response to the said letter dated 30.9.2000 of respondent certified that the petitioner had appeared before him for being examined and as per his statement his age was 54 years and on the basis of X-Ray Plate report and physical appearance according to him( Chief Medical Officer)the petitioner is of 54 years of age, a true copy of which has been annexed as Annexure-II to the affidavit. Subsequently, the Executive Engineer, EDD, Basti vide his letter dated 17.10.2002 addressed to Dy. General Manager, Basti Region, requested to approve the date of birth of the petitioner as 1.7.1948 for being recorded in his service book on the basis of the School Leaving Certificate and the medical certificate issued by the Chief Medical Officer after making correction in the date of birth wrongly entered in the service book of the petitioner, which had been confirmed and verified by the Executive Engineer after personal inspection, a true copy of which has been filed as Annexure 3 to the said affidavit.
The Dy. General Manager directed the Executive Engineer vide his letter dated 8.10.2002 to take the necessary decision on his own level since he is the appointing authority, a copy of which has been filed as Annexure 4 to the affidavit. The Executive Engineer in turn vide his letter dated 11.11.2002 asked the petitioner to submit the relevant information for making the necessary correction in the wrongful entry made in the date of birth in the service book of the petitioner, a copy of which has been filed as Annexure 5 to the affidavit. The petitioner furnished the detail as required. However, vide letter dated 13.10.2003 the Executive Engineer, EDD, Basti withheld the payment of the salry of the petitioner on the legal advice of Sri S.K.Mishra, Advocate, counsel for the respondent, a copy of which has been filed as Annexure-7 to the affidavit.
The counsel for the respondents argued that in the counter affidavit in paragraph 7 the objections have been raised that disputed question of facts cannot be adjudicated in the present writ petition and the writ partition is not maintainable. And also since, that there was no solid matter before the answering respondents on the basis of which he could make the necessary correction in the date of birth of the petitioner's service book and the date of birth in the service book of the petitioner was final and binding upon the petitioner. That there is no power vested with the respondents to correct the date of birth in the service record even if it has been wrongly noted and there was in conclusive proof of the date of birth of the petitioner. The leaned counsel for the respondent has submitted that the petitioner moved an application for the correction of the date of birth at a belated stage at the fag end of his career i.e. in the year 1988, while he was to retire in the year 1992.
From the record of the case, I find that it is an admitted case of the respondents that due to inadvertence at their level the medical certificate of Mohd.Yunus Khan S/o Amjad Khan wherein the date of his birth mentioned as 27.2.1934 was wrongly placed in the record of the petitioner instead of the school leaving certificate wherein the date of birth of the petitioner was mentioned as 1.7.1948. This finding is based on the personal enquiry made and submitted by the concerned Executive Engineer, the appointing authority of the petitioner. The petitioner is being wrongly retired from his service prior to the due date of his retirement treating his date of birth as 27.2.1934 instead of 1.7.1948 and he has still got many more years in service. The payment of the salary of the petitioner as per the interim order passed by this court has been stopped by the respondents on the basis of the opinion of the counsel for the respondent which is unwarranted.
In view of the facts and observations made hereinabove, the impugned order dated 7.4.1992 (Annexure No.6 to the writ petition) is hereby quashed. Let a writ of certiorari be issued. The respondents 2 to 5 are directed to treat the petitioner in service and pay the entire arrears of salary month to month regularly. The respondents shall make necessary correction in the date of birth as 1.7.1948 in the service book of the petitioner, as per his school-leaving certificate, preferably within one month from the date of production of a certified copy of this order.
The writ petition succeeds and is allowed with costs.
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