Vishwa Nath (Dead) By LRs. vs Kashi Hindu University Varanasi and Others

Rakesh Tiwari, J.

Heard Counsel for the appellant.

The plaintiff appellant Vishwanath (since deceased) filed suit No. 1341 of 1987 for injunction in the Court of Munsif Magistrate, Varanasi claiming that his date of birth is 11.12.1938 and that he has wrongly been superannuated from the post of chowkidar on 31.1.1988 on attaining the age of 60 years. The Court granted temporary injunction in favour of the appellant on 3.1.1988, against which defendant respondent filed Civil Appeal No. 45 of 1988 before IInd Additional District Judge, Varanasi and also filed their written statement before Court in the suit.

It appears that dispute before the Court was whether date of birth of the appellant is 1.2.1928 as claimed by Kashi Hindu University-defendant or 11.12.1938 as claimed by the plaintiff appellant Vishwanath (since deceased) and others. The Court below framed 12 issues in the suit, out of which issue No. 1, 2 and 9 are relevant for the purposes of this case, which are as under:

The Court below considered case of the parties and on the basis of admitted fact by the plaintiff appellant in his cross examination that he joined Kashi Hindu University in the year 1954 when he was admittedly 16 years of age and that he had filed suit after four years of his retirement and that he has no other document except one establishment budget in which his date of birth was shown to be of the year 1938, the Court held that according to the Note appended to Establishment budget, the date of birth mentioned in the said paper/establishment budget is not determinative and shall not confer any right on the person claiming right on its basis. The relevant extract of the judgment in this regard is as under:

From the above, the Court found that declaration as given by the appellant was incorrect as a minor cannot be given service by an establishment which is recognized by the central government and governed by applicable service rules. The Court below has further noted the fact, that plaintiff appellant had been informed about his date of birth to be of the year 1928 as far back as on 7.6.1961 when he was required to give his date of birth for the purposes of Life Insurance. But he at that stage did not dispute his date of birth as 1.2.1928 but has raised this dispute after four years of his retirement. On the basis of aforesaid discussion, the Court below held that claim of the appellant cannot be accepted that his date of birth is of 1938 and he joined Kashi Hindu University in 1954 as according to his own version he would 16 years of age in 1954 and could not have been given appointment in an establishment recognized by the central government and governed by relevant service rules.

As regards budget statement is concerned, it has been dearly noted therein that date of birth of any employee (1938 of the appellant in the present case), will not give him any legal right to claim any benefit on that basis. Thus, the Court below has recorded a specific finding of fact that date of birth of the appellant is not of 1938 and has decided issues No. 1, 2 & 9 against the appellant. While deciding issue No. 2, the Court held that the appellant is not entitled to any relief.

In view of admitted facts and evidence of the appellant himself, the Courts below have rightly come to the conclusion that appellant''s date of birth is 1.2.1928 and not 11.12.1938 as claimed by him. If date of birth is incorrectly mentioned in the establishment budget that will not give a right to claim any benefit for the Note appended to it provides so. Moreover, the appellant has accepted his date of birth as 1.2.1928 when he was informed of the same in the year 1961 hut he chose to challenge the same after four years of his retirement.

After hearing the submissions and perusing the impugned judgments, in the opinion of this Court, the findings and conclusions drawn by the Courts below on the basis of evidence produced before it, do not suffer from any infirmity and no substantial question of law arises for consideration in this appeal. The appeal has no force and, is accordingly dismissed. No order as to costs.