# Devendra Kumar Tiwari v. Union of India and others

- **Citation:** (2006) 1 ILRA 153
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-18
- **Case number:** Civil Misc. Writ Petition No. 18371 of 2004
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-kumar-tiwari-v-union-of-india-and-others-40649
- **Pages:** 3

## Headnote

U.P. Intermediate Education Act-1921Section 7 (7)-Date of Birth recorded in
High School certificate-held-conclusive
and final-under the provisions of Section
79 to 81 of the Evidence Act.

Held: Para 11

The High School examination certificate
issued
by
the
Madhyamik
Shiksha
Parishad U.P., Allahabad, records the
date of birth of the petitioner as
13.12.1985. Under the provisions of
Section
7
(7)
of
the
Intermediate
Education
Act,
the
result
of
the
petitioner has been declared in the
official gazette. In view of the aforesaid
facts read with Section 79 to 81 of the
Evidence Act, the High School certificate
produced by the petitioner is to be taken
to be factually correct, unless and until
established by some cogent evidence to
be otherwise. The respondents have
disclosed no material to doubt the
correctness of the date of birth as
mentioned in the High School certificate
nor they could have insisted upon the
petitioner
to
get
himself
medically
examined.
Even
the
report
of
the
Radiology Specialist which is based on
mere presumption drawn from certain
biological
examination
records
the
approximate age of the petitioner as
more than 20 years only. The report even
if accepted did not establish that the
petitioner was beyond the maximum age
limit prescribed. There is hardly any
appreciable difference in the date of
birth as recorded in the High School
certificate viz. a viz. the age presumed
under the report of the Radiology
Specialist.

## Text

1 All] Devendra Kumar Tiwari V. Union of Indian and others
153
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2006

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 18371 of 2004

Devendra Kumar Tiwari
...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri J.P. Singh
Sri Sudhir Solanki

Counsel for the Respondents:
Sri B.N. Singh
Sri K.C. Sinha
Sri N.C. Nishad
S.S.C.

U.P. Intermediate Education Act-1921Section 7 (7)-Date of Birth recorded in
High School certificate-held-conclusive
and final-under the provisions of Section
79 to 81 of the Evidence Act.

Held: Para 11

The High School examination certificate
issued
by
the
Madhyamik
Shiksha
Parishad U.P., Allahabad, records the
date of birth of the petitioner as
13.12.1985. Under the provisions of
Section
7
(7)
of
the
Intermediate
Education
Act,
the
result
of
the
petitioner has been declared in the
official gazette. In view of the aforesaid
facts read with Section 79 to 81 of the
Evidence Act, the High School certificate
produced by the petitioner is to be taken
to be factually correct, unless and until
established by some cogent evidence to
be otherwise. The respondents have
disclosed no material to doubt the
correctness of the date of birth as
mentioned in the High School certificate
nor they could have insisted upon the
petitioner
to
get
himself
medically
examined.
Even
the
report
of
the
Radiology Specialist which is based on
mere presumption drawn from certain
biological
examination
records
the
approximate age of the petitioner as
more than 20 years only. The report even
if accepted did not establish that the
petitioner was beyond the maximum age
limit prescribed. There is hardly any
appreciable difference in the date of
birth as recorded in the High School
certificate viz. a viz. the age presumed
under the report of the Radiology
Specialist.

(Delivered by Hon'ble Arun Tanodn, J.)

1. Heard Shri J.P. Singh on behalf of
the petitioner, Shri N.C. Nishad on behalf
of respondents.

2.

Director
Recruitment,
Recruitment Office Amethi, Sultanpur
published
an
advertisement
inviting
applications for recruitment in Indian
Army selections whereof were scheduled
to take place at Allahabad between
16.1.2004
to
23.1.2004.
Under
the
advertisement, candidates belonging to
the district of Sultanpur, Rae Bareily and
Kaushambi were required to appear at
Allahabad New Cantt. On 19th and 20th of
January, 2004.

3. Petitioner being a permanent
resident
of
Kaushambi
accordingly
appeared for selections at Allahabad for
Soldier (G.D. Category). It is stated that
after physical examination the petitioner
also
participated
in
the
written
examination,
the
petitioner
was
successful. Vide telegram dated 9th
March, 2004 the petitioner was required
to report at the Branch Office at Amethi
with all original documents. In the
original certificates produced by the
petitioner his High School examination
154 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
certificate issued by the Madhyamic
Shiksha
Parishad,
Uttar
Pradesh,
Allahabad, recorded the date of birth of
the petitioner as 13th December, 1985.

4. Although there was no material
before the Recruiting Officer to have any
doubts with regards to the age of the
petitioner specifically in view of the High
School
certificate
produced
by
the
petitioner, he however directed the
petitioner to appear before the medical
specialist for investigation on 21.4.2004
with regards to his age. The petitioner
complied with the directions so issued,
the Radiology Specialist submitted his
report to the effect that the age of the
petitioner appears to be more than 20
years.

5. On the basis of the aforesaid
medical report the respondents vide order
dated 21.4.2004 declared the petitioner
unfit on the ground that age of bones of
the petitioner is more than 20 years.

6. It is against the said action of the
respondents that the present writ petition
has been filed.

7. On behalf of the petitioner it is
submitted that there is no justification, to
disbelieve the age of the petitioner as
mentioned in the High School certificate,
even
otherwise
the
report
of
the
Radiology Specialist only recorded that
the age of the petitioner appears to be
more than 20 years. The maximum age
limit prescribed for recruitment as Soldier
was 21 years and, therefore, even if the
report of the Radiology Specialist is
accepted
the
petitioner
was
not
disqualified in any manner or he was
beyond the maximum age fixed.

8. A counter affidavit has been filed
on behalf of the respondents. Despite
further time being granted absolutely no
explanation has been furnished as to
under what circumstances the date of birth
of the petitioner as mentioned in the High
School certificate could have bee doubted
by the Recruiting Officer. Counsel for the
respondents has not been able to point out
any rule or provision under which the
Recruiting
Officer
could
refer
the
candidate for medical examination for
determination of his age even where the
High
School
certificate
has
been
produced.

9. I have heard counsel for the
parties and gone through the records of
the present writ petition.

10. In paragraph 34 of the counter
affidavit the respondents have tried to
justifying the action taken against the
petitioner. It is worthwhile to reproduce
paragraph 34 and 43 of the Counter
Affidavit:

"34. That since his stated age was
18 years 3 months according to High
School certificate on the planned day of
enrolment (i.e. 26th March, 2004) and
his biological age was determined to be
definitely more than 20 years, the
difference of 01 year 9 months or more
sufficiently proves that the petitioner
has willfully concealed his true age and
provided false information in writing
about his date of birth both to U.P.
Board of Education and military
authorities.
(Reference
petitioner's
High School certificate and Mart Sheet
at Annexure VI to the attached writ
petition
and
Annexure
counter
affidavit-6 of this counter affidavit).
1 All] Dharam Pal and others V. State of U.P. and another
155

43. That the contents of paragraph
No. 21 ground (A) of the writ petition
are factually incorrect. Determination
of age is one of the responsibilities of
Enrolling Officer. There is no denying
the fact that date of birth entered in
education certificate, particularly High
School certificate is normally accepted
at
the
time
or
enrollment.
But
candidates on their part are also
required to give correct age through
their documents/statements. In order to
detect candidates using unfair means to
seek enrollment by reducing their age
such cases are referred to Military
Hospital authorities for their decision.
As the date of birth entered in High
School certificate in such fraud cases
can be verified through well established
medical norms only. The petitioner has
attempted to get enrolled by fraudulent
means by giving false proof of age. His
candidature thus stands automatically
rejected irrespective of the fact whether
he still fulfills other eligibility criteria
or not.

11. In the opinion of the Court the
stand so taken by the respondents is
totally misconceived. It is admitted that
the petitioner had passed High School
examination in the year 1985. The High
School examination certificate issued by
the Madhyamik Shiksha Parishad U.P.,
Allahabad, records the date of birth of the
petitioner as 13.12.1985. Under the
provisions of Section 7 (7) of the
Intermediate Education Act, the result of
the petitioner has been declared in the
official gazette. In view of the aforesaid
facts read with Section 79 to 81 of the
Evidence Act, the High School certificate
produced by the petitioner is to be taken
to be factually correct, unless and until
established by some cogent evidence to be
otherwise.
The
respondents
have
disclosed no material to doubt the
correctness of the date of birth as
mentioned in the High School certificate
nor they could have insisted upon the
petitioner
to
get
himself
medically
examined. Even the report of the
Radiology Specialist which is based on
mere presumption drawn from certain
biological
examination
records
the
approximate age of the petitioner as more
than 20 years only. The report even if
accepted did not establish that the
petitioner was beyond the maximum age
limit prescribed. There is hardly any
appreciable difference in the date of birth
as recorded in the High School certificate
viz. a viz. the age presumed under the
report of the Radiology Specialist. In
these circumstances the respondents were
not justified in declaring the petitioner
unfit for the post of Soldier (G.D.). The
order dated 21.4.2004 is quashed. The
respondents are commanded to admit the
petitioner as Soldier (G.D.) within four
weeks from the date a certified copy of
this order is filed before the Respondent
No. 3. Writ petition is allowed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 3215 of
2004

Dharam Pal and others
...Applicants
Versus
State of U.P. and another

 ...Opposite parties

Counsel for the Applicants:
Sri S.K. Dubey