High Court of Judicature at Allahabad
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Bhurey Singh v. State Of U.P. And Others - WRIT - A No. 73531 of 2005  RD-AH 6700 (1 December 2005)
Hon'ble Arun Tandon, J.
Petitioner had approached this Court earlier against a notice dated 16.1.2004 issued by the Executive Engineer intimating the petitioner that he is due to retire w.e.f. 31.5.2004. The writ petition was based on allegation that the date of birth of the petitioner as recorded in the service book was 10.5.1949 and, therefore, the notice was illegal. In the said writ petition a counter affidavit was called for. In the counter affidavit filed by the respondent, it was disclosed that the date of birth of the petitioner was corrected under order dated 14.8.1996 is 10.5.1944 and, therefore, the petitioner has rightly been served with the notice of retirement dated 16.1.2004. In rejoinder affidavit filed by the petitioner he pleaded that the correction in the service book has been made behind the back of the petitioner and, therefore, is in violation of principles of natural justice.
This Court after considering the rival contentions vide judgment and order dated 20.5.2005, dismissed the writ petition, the operative portion reads as follows :
"In view of the aforesaid facts and circumstances and in view of the fact that the petitioner has not filed any application for amendment to challenge the orders of 1996, this Court does not find the present writ petition to be a fit case for interference under Article 226 of the Constitution of India. In case the petitioner desires, it is always open to him to question the aforesaid factum of his correct date of birth and seek a declaration by way of filing a civil suit.
The writ petition is accordingly dismissed with no order as to costs."
In view of the aforesaid order of this Court the only remedy left open to the petitioner was to file Civil Suit if advised for declaration of his correct date of birth, it is not in dispute that the said judgment has become final and was not subjected to challenge any further by the petitioner.
The petitioner has now filed this second writ petition with the prayer that the order dated 19.7.1996 may be quashed and a writ of mandamus be issued to permit the petitioner to continue in service till he attains the age of 58 years with reference to his date of birth as 10.5.1949.
In the opinion of the Court the present writ petition is totally misconceived. Petitioner has not challenged the notice dated 16.1.2005 which was subject matter of challenge in the earlier writ petition. The prayer made for correction of the date of birth in the service records of the petitioner despite the earlier judgment of this Court requiring the petitioner to file a Civil Suit for declaration of his correct date of birth cannot be entertained. The writ petition is dismissed.
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