Heard Sri R.K. Dwivedi, learned counsel for petitioner, Sri Pankaj Patel, learned Additional Chief Standing Counsel and perused the record.

By means of the present writ petition, the petitioner has challenged the impugned retirement notice dated 20.01.2012 issued by Executive Engineer, Barabanki Prakhand, Sharda Canal, Barabanki by which the petitioner is sought to retire from service w.e.f. 31.08.2012 on the ground that he has attained the age of superannuation of 60 yeas as his date of birth is recorded as 27.08.1952 in the service book.

Learned counsel for petitioner while challenging the impugned notice submits that the petitioner was initially engaged/appointed on the post of Beldar on 16.09.1973 and at the time of entering into service, he was High School failed and as a matter of fact on record, he has shown the transfer certificate issued by the institution concerned in which he has studied, namely, Seth Jai Dayal Inter College, Biswan Sitapur in which the date of birth of the petitioner was mentioned as 01.07.1953. However, ignoring the said fact, the date of birth of the petitioner in the service book was mentioned as 27.08.1952.

He further submits that the said fact had come to the knowledge of the petitioner in the year 2006 when a seniority list has been issued in respect to the persons who are working on the post of Beldar under Executive Engineer, Barabanki Prakhand, Sharda Canal, Barabanki in order to regularize their services. For the first time, came to know the fact that his death of birth is wrongly recorded in the service book as 27.08.1952 instead of 01.07.1953, the petitioner raised his grievance in that respect tot the authority concerned and keeping in view the said fact, the Superintending Engineer, VII Manda, Irrigation Department, Lucknow/O.P.No. 4 wrote a letter to the O.P.No. 5 dated 26.12.2006 in respect to the said fact. Thereafter, the petitioner continuously pursuing his case for correction of the date of birth and in support of his case, he has give a transfer certificate issued by the institution in which he has studied, namely, Seth Jai Dayal Inter College, Biswan Sitapur as well as the mark-sheet of High School of the year 1972 in which he has failed, but no heed has been paid in the matter in question and in the meantime the O.P.NO. 5 has issued the impugned notice by virtue of which the petitioner has to retire from services on 31.08.2012 on the ground that he has attained the age of 60 years as his death of beard mentioned in the services book is 27.08.1952.

Accordingly, it is submitted by learned counsel for petitioner that the impugned action on the part of opposite parties thereby retiring the petitioner w.e.f. 31.08.2012 is an action which is wholly contrary to the facts on record and he is entitled to work and discharge his duties till 31.07.2013 as his actual date of birth is 01.07.1953, so the impugned notice dated 20.01.2012 is arbitrary in nature, liable to be set aside.

Sri Pankaj Patel, learned Additional Chief Standing Counsel while defending the impugned notice issued by O.P. No. 5 submits that the petitioner has entered into service on the post of Beldar and at the time of entering into the service in the year 1973 in his service record as per date of birth of the petitioner has been mentioned as 27.08.1952. He further submits that thereafter on 03.07.2006 when a seniority list has been issued in respect to the persons who are working on the post of Beldar under O.P.No. 5, the date of birth of the petitioner has been mentioned as 27.08.1952 he further submits that and it was mentioned in the service that the petitioner is illiterate and the petitioner has signed in the service book.

On the basis of the abovesaid facts, Sri Pankaj Patel, learned Additional Chief Standing Counsel submits that once in the service book in which the date of birth of the petitioner has been mentioned as 27.08.1952 and the petitioner has signed the said service book, so at the verge of retirement he cannot agitate the grievance as agitated by him that his date of birth has been wrongly recorded in service book as 27.08.1952 instead of 01.07.2005. In support of his argument, he placed reliance on the judgment given by Honble the Apex Court in the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majumdar and another, 1995 (4) SCC 172 [LQ/SC/1995/562] , Union of India Vs. Harnam Singh 1983 (2) SCC 162 as well as the judgment given by this Court in the case of Lord Krishna Textimes Mill, Saharanpur and Labour Court and others, 2009 (122) FLR 476. [LQ/AllHC/2009/429]

In order to decide the controversy involved in the present case, it is relevant to go through the provisions as provided under Rule 2 of the Uttar Pradesh Recruitment to Service(Determination of Date of Birth) Rules, 1974, which reads as under:-

Determination of correct date of birth or age:- The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as a foresaid or has passed such examination after joining the service, the date of birth or the agree recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation of his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date of age in any circumstances whatsoever.

In the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majumdar and another, 1995 (4) SCC 172 [LQ/SC/1995/562] , Honble the Apex Court held as under:-

10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when theyare due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extra-ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his `Service and Leave Record could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end-of his service, seeking correction of his date of birth entered in his `Service and Leave Record or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.

In the case of Lord Krishna Textimes Mill, Saharanpur and Labour Court and others, 2009 (122) FLR 476 [LQ/AllHC/2009/429] , this Court held as under:-

I have considered the submissions made on behalf of parties and have perused the record. Admittedly, respondent No.2 has joined services in the year 1958 and he has counter signed in service record. According to workman, he has passed IXth Class, therefore, he was able to understand what has been written in the service record regarding date of birth. In the provident fund record also, date of birth mentioned was 1939 and workman has counter signed it. At that time workman has not raised any objection. Even when the award of Dr. Sampoornand was given in 1962, workman concerned has not raised any objection, therefore, in my opinion, subsequent to that on an application made by any workman, date of birth cannot be changed. The finding recorded by labour court in the award appears to without consideration of relevant record to this effect regarding signing relevant record by workman concerned. In his statement he has admitted this fact that he has signed the record relating to provident fund, therefore, finding that no signature has been made by workmen should not have been recorded by labour Court. Further, if according to respondent No.2 he has raised the dispute regarding his date of birth in the year 1987 then if no orders were passed then at that time during the period of service, he should have raised an objection and raised a dispute before labour court. But he kept mum and after his retirement he raised a dispute. As regards, decision relied upon by learned counsel for respondents, the case of State of Chattisgarh (Supra) is regarding evidenciary value of a particular document. It does not held that if such type of document is submitted by an employee at the fag end of retirement, on that basis date of birth has to be accepted recorded in the register maintained by the school in spite of fact that in the service record another date of birth is recorded. Another judgement relied upon by learned counsel for petitioner in U.P. State Electricity Board (Supra) will also not be applicable in the present case as employer has not brought on record any contrary document contradicting the date of birth of a particular employee. In that situation, Court has accepted that if transfer certificate regarding date of birth is submitted by the workman concerned, that can be taken into account.

In the case of Union of India Vs. Harnam Singh, 1993 (2) SCC 162 [LQ/SC/1993/117] , Honble the Apex Court held as under:- Para No. 8 Note (5) to Fundamental Rule 56 governing correction of date of birth in the service record, substituted by Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms Notification No. 19017/79/Estt-A dated 30th November, 1979 published as SO 3997 in the Government of India Gazette dated 15th of December 1979 limits the exercise of the right by the government servant to seek alteration of his date of birth only within the specified period. The provision reads as under:

"Note 5 The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of a Union Territory under which the Government servant is serving if

(a) a request in this regard is made within five years of his entry into Government service;

(b) it is clearly established that a genuine bonafide mistake has occurred; and

(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service."

Para No. 9 According to the above amendment, it is obvious that the request for correction of date of birth is required to be made by the Government servant within five years of his entry into Government service and his date of birth may be corrected if it is established that, a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service. The CAT in the instant case was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service for more than five years prior to 1979.

Further, a Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispersed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that right to continue in service stands decided by its entry in the service record.

A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of the irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of latches or stale claims, is generally applied to by the courts and tribunals.

In the present case, on a request made on behalf of petitioner an information is sought from Madhyamik Shiksha Parishad, Allahabad that when the petitioner has give the High School examination in the year 1972, then at the time of filling of the examination form what date of birth has been mentioned by him. In response to the said fact, an affidavit has been filed by Sri Raj Bahadur Maurya, Dy. Secretary, Madhyamik Shiksha Parishad, Uttar Parishad in which a document has been annexed as Annexure No. A-2 which indicate the fact that the petitioner has been appeared in the High School Examination of 1972 from Seth Jai Dayal Inter College, Biswan Sitapur with Roll No. 19356 and his date of birth is 01.07.1953 but on the basis of the same no benefit can be derived by the petitioner as in the instant case, from the pleadings on record (writ petition), the position which emerged out that at the time of entering into service the petitioner has not shown the relevant material i.e. transfer certificate in order to establish and prove that his date of birth is 01.07.1953. Accordingly, when he entered into service on 16.09.1973 on the post of Beldar, in the service Book his date of birth has been mentioned as 27.08.1952 and he has signed on the service book.

Taking into the said fact as well as in view of the Rule 2 of the Uttar Pradesh Recruitment to Service(Determination of Date of Birth) Rules, 1974; the date of birth of a Government servant is which is recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid, the date of birth in his service book at the time of his entry into the Government service is taken as recorded in service book, for all purposes in relation of his service,

Further, in the present case, the petitioner is a High School failed and as per the procedure(at that relevant point of time), the candidate/student who has failed in the High School is not awarded a certificate and date of birth is only mentioned in the certificate issued by the U.P. Madhyamik Shiksha Parishad to the student who has passed the said examination.

In view of the said facts and the facts as stated as at the time of entering into the services, the date of birth of the petitioner has been recorded in the service book as 27.08.1952 and there is a signature of the petitioner on the service book, thus, keeping in view the said fact as well as the law on the point in issue as stated hereinabove, I do not find any good reason or ground to interfere in the present matter.

For the foregoing reasons, the writ petition lacks merit and is dismissed.