Brahma Charan Pandey vs State of U.P. and Others

Rakesh Tiwari, J.—Heard counsel for the petitioner and standing counsel for the respondents.

The petitioner seeks quashing of impugned notice dated 19.4.2008 issued by Conservator of Forest, Mirzapur Circle, Mirzapur informing him that he will retire on 31.7.2008 and further a writ of mandamus commanding the respondents to permit him to continue in service till 31.10.2010.

In the year 1972, when the petitioner was selected and appointed as Forest Guard, his date of birth was recorded in service records as 9.7.1948 on the basis of his date of birth as recorded in High School certificate. In the year 1982, after the petitioner appeared and was successful in departmental examination for the post of "Van Daroga" (Forester), he was directed to appear before the Medical Officer and submit fitness certificate as required under Fundamental Rule 74. He accordingly appeared before Superintendent, District Hospital, Mirzapur and was accordingly issued fitness certificate as is required for Government servants under Fundamental Rules in Form No. B, as under:

F.R. Form No. B.

Name Sri Brahmacharan Fitness Certificate for Government Servant

Issued against No. 431-1/6f-5, dated 19.12.1979 of Divisional Forest Officer, Dramand Ganj, Mirzapur.

I do hereby certify that we have got examined Sri Brahma Charan Pandey son of Sri Amrit Lal Pandey, candidate for employment in Forest department. I cannot discover that he has disease of constitutional weakness or bodily infirmity (communicable or otherwise) Except Nil. I do not consider this disqualification for according to his own statement, department, the candidate about 31 years, meet 31 years by appearance.

Mirzapur : 4.3.1980.

Sd. Illegible,

Superintendent, Distt. Hospital Mirzapur.

Thereafter, he was promoted on 22.7.2002 as Deputy Forest Ranger in grade of Rs. 4,000-100-6,000. Thereafter, impugned notice dated 19.4.2008 was issued by Conservator of Forest, Mirzapur Circle, Mirzapur to the petitioner informing him that he will retire on 31.7.2008 on the basis of his date of birth, i.e., 9.7.1948 as recorded in the service book.

The petitioner thereafter submitted a representation dated 1.7.2008 to the Divisional'' Forest Officer, Mirzapur stating that his date of birth is wrongly recorded in the service book ; that on the basis of medical certificate aforesaid dated 4.3.1980 he was 31 years of age on 4.3.1980 ; that he would attain the age of superannuation on 31.7.2010 and that he is being prematurely retired. It may be pointed out here that petitioner has already been retired on 31.7.2008 and feeling aggrieved, he has filed the present petition for the relief stated above.

Perusal of the medical certificate shows that petitioner himself had given his age on the date of medical examination as 31 years and the doctor has merely endorsed it by mentioning that by appearance he appears to be 31 years of age. He has not submitted any report of ossification test of bones which is conducted for determination of age. The medical certificate relied upon by the petitioner was only for the purposes of determining his fitness as required in case of a Government servant under the fundamental rules and not for determination of his age.

Age of a person can be determined by ossification test of bones and there is always a variance of + - two years even in ossification test of bones as well.

The Apex Court in a catena of decisions has ruled that date of birth as recorded in employee''s service book on the basis of High School certificate is to prevail and any change in date of birth is not to be permitted on any other basis at the fag end of service career.

Thus, there being no report of ossification test of bones for determining his age the claim of the petitioner being based only upon medical certificate regarding his fitness in which his age had been shown to be 31 years as on 4.3.1980 by the doctor on the basis of his own statement and his date of birth being recorded as 9.7.1948 in the High School Certificate as well as his service records, in the considered opinion of this Court, there is no illegality in the impugned notice informing him that he would attain the age of superannuation on 31.7.2008.

For the reasons stated above, the writ petition fails and is accordingly dismissed. The petitioner may complete formalities for his post retirement benefits which shall be processed by the authorities concerned within a period of two months and he will be paid his retiral dues accordingly. No order as to costs.