Krishan Bahadur vs State Of H.P. & Ors

Tarlok Singh Chauhan, J

This indeed is a very strange petition wherein the petitioner has claimed the following substantive reliefs:-

(i) Direct the respondents to properly ascertain the record of date of birth of the petitioner on the basis of the authentic record of birth in the service record.

(ii) Direct the respondents not to retire the petitioner on 30.06.2020 on the basis of incorrect entries made in the service record.

(iii) Direct the respondents to correct the entries of date of birth in birth record on the basis of the authentic record to be produced by the petitioner. (iv) Direct the respondents not to superannuate the petitioner until the correction of the date of birth.

It is averred that the petitioner was born in Nepal and migrated to India about 22 years back and settled in village Kiari, Post Office Madhawani, Sub-Tehsil Kotgarh, District Shimla, H.P. He was engaged on daily wage basis by respondent No. 2 in May, 2002 and thereafter his services were regularized in the month of June, 2017. Since there is no record regarding the date of birth of the petitioner, therefore, he alongwith other similar situate persons was directed to sworn in an affidavit regarding his date of birth. The petitioner submitted his affidavit wherein he disclosed his date of birth to be 20.08.1967. Thereafter the petitioner was ordered to be examined by the Medical Board and the Medical Board has found the age of the petitioner disclosed in the affidavit to be not correct and determined the date of birth of the petitioner to be June, 1961.

Now, the grievance of the petitioner is that even though he is not possessed of any documents whatsoever, which may prima facie establish his date of birth, but the entry regarding the date of birth in the record of the respondent is not correct and therefore, he should be permitted to continue in service and afforded an opportunity to procure his birth certificate from Nepal.

We really wonder how the petition is maintainable.

It is more than settled that a writ of mandmus does not lie to create or establish a legal right but to enforce the legal right i.e. already established. Writ being equitable in nature, its issuance is governed by equitable principle. The writ cannot be granted unless it is established that there is an existing legal right of the applicant or an existing duty of the respondent.

As observed above, the petitioner has not placed on record any document, much less contemporaneous official record regarding the date of birth and, therefore, has no right to continue in service, more particularly, when the petitioner was ordered to be examined by the Medical Board, he has not placed on record recommendations of the Medical Board. Since the specific case of the petitioner is that he is being superannuated on 30.06.2020, the necessary inference is that the Medical Board has found the age of the petitioner disclosed in the affidavit to be not correct and after determining the date of birth of the petitioner to be June, 1961 and it is on this basis the petitioner is now being superannuated on 30.06.2020. What the petitioner seeks in his fishing roving enquiry which is not permissible.

Consequently, we find no merit in this petition and the same is accordingly dismissed. Pending application(s), if any, also stands disposed of, leaving the parties to bear their own costs.