HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 122 of 2007 (S/S) Chandra Singh Negi ….Petitioner. Versus General Manager, Uttaranchal Power Corporation Ltd. Dehradun & others ....Respondents. Mr. Dinesh Gahtori, learned counsel for the petitioner. Mr. B.D. Upadhyay, learned counsel for the respondents. 15th December, 2008 Hon’ble Sudhanshu Dhulia, J. Heard Sri Dinesh Gahtori, learned counsel for the petitioner and Sri B.D. Upadhyay, learned counsel for the respondents. The petitioner by means of the present writ petition has challenged the order dated 25.11.2005 which is Annexure 7 of the writ petition. Admittedly, the petitioner was an employee of Uttarakhand Power Corporation Ltd. The petitioner was initially appointed in the U.P. Electricity Board (as it was then) as Peon on 9.5.1962. The controversy in the present writ petition is with regard to the date of birth of the petitioner. As per the petitioner, his date of birth, which is recorded in his service book, is 19.11.1944 whereas according to the Power Corporation, the correct date of birth of the petitioner was 1.7.1934 which was subsequently corrected as 19.11.1944 and, therefore, since there is no provision for correction in the service record after recording the date of birth of the employee, the correct date of birth of the petitioner will be treated as 1.7.1934. All the same, the petitioner retired on 30.11.2004 after attaining the age of 2 superannuation as per the service record contained at the relevant time, i.e. treating his correct date of birth to be 19.11.2004. Subsequently, it came to the knowledge of the Department that the initial date of birth of the petitioner was recorded as 1.7.1934 and since it was subsequently corrected to 19.11.2004, an order was passed on 25.11.2005 (post retirement of the petitioner) wherein service benefits and the fixation of the pension, etc. of the petitioner have to be now done treating his date of birth as 1.7.1934 and his date of retirement as 30.6.1994, instead of 30.11.2004. Although no orders for recovery of salary from the petitioner have been passed between 1994-2004. The petitioner has challenged the order dated 25.11.2005 passed by the Up Mukhya Karmik Adhikari, Uttaranchal Power Corporation Ltd. The contention of the petitioner is that he was illiterate at the time of his entry in service and he had not done High School, therefore, no High School certificate was produced and his date of birth was recorded initially 1.7.1934 when he got the appointment, which was, in fact, his wrong date of birth. Although the petitioner did not make any effort to get his date of birth corrected, it was, however, noted by his superior officers and on 3.11.1962, the then Superintending Engineer of Hydel Yamuna Circle, Dehradun wrote a letter to the Medical Officer In-Charge Civil Hospital, Dehradun as follows :- “The following members of inferior staff who are working in this office, could not produce their horoscopes or any other proof in support of their age and dates of birth. Kindly examine them and intimate their age to the undersigned. The incumbents are being directed to present themselves before you in this connection. 1. Sri Ram Samujh 2. Sri Top Bahadur 3 3. Sri Gauri Datt 4. Sri Amar Singh 5. Sri Chandra Singh” Consequent to the said letter, the petitioner was medically examined and as per the record, an opinion was given by the concerned Medical Officer, who was of the opinion that after the X-ray examination of the body of the petitioner, his age seems to be 18 years. Consequently, in the service book of the petitioner, 19.11.2004 was recorded as his date of birth. The main aspect of the petitioner’s argument at this juncture is that the petitioner did not move any application for correction in his service record. It was done vide letter dated 3.11.1962 of the superior of the petitioner i.e. the then Superintending Engineer and consequent to it, after a medical examination, entries were made in the service record of the petitioner correcting his date of birth. This is not a case where either the service book entries as regarding the date of birth have been changed by any effort made by the incumbent himself nor it is a case where said entries are changed at the verge of the retirement of the incumbent. Therefore, it appears to be a perfectly bona fide case where initial wrong entries in the service book have been corrected, that too promptly and on direction of the Superintending Engineer of the Board. The learned counsel for the Power Corporation argues that as per the Rules pertaining to the service of the petitioner, entries once made in the service book regarding date of birth cannot be change and no application for this purpose would be entertained. 4 Reference in this regard has been made to the Government Order dated 28.5.1974, wherein the Rules pertaining to date of birth of State Government servants, namely, Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974 have been adopted by the Uttar Pradesh State Electricity Board. Although the said Rules, which had been framed under the powers given to the Government under Article 309 of the Constitution of India and although these Rules have a retrospective effect, since merely have been adopted by a letter it will have no retrospective effect in the matter pertaining to the services of the petitioner in the Electricity Board. Moreover, even if it is assumed for the sake of argument that these Rules have any retrospective effect, even then it will not apply in the present case as admittedly there has been no application or effort by the petitioner to change his date of birth and, therefore, the correct date of birth and the initial date of birth will be treated to be 19.11.1944. There has been no averment on the part of the Power Corporation challenging the veracity of the said entries made in the service book of the petitioner and there is no allegation of any fraud and forgery on the part of the petitioner. The impugned order dated 25.11.2005, therefore, is liable to be quashed. For the foregoing reasons, impugned order dated 25.11.2005 is quashed. The net result of this quashing would be that the petitioner shall be treated as having rightly retired in the year 2004, and all service benefits, including pension have to be given to him treating the facts in mind. The writ petition is allowed. No order as to costs. (Sudhanshu Dhulia, J.) 15.12.2008 Avneet