# (2011) 2 ILRA 729

- **Citation:** (2011) 2 ILRA 729
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-31
- **Case number:** Civil Misc. Writ Petition No. 39406 of 2007
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-2-ilra-729-41931
- **Pages:** 11

## Headnote

C.S.C.

U.P.
Recruitment
of
Service
Determination of Date of Birth Rules
1974-Rule-2-Date
of
Birth-Petitioner
already passed High School examinationbefore joining of Service-in Service Book
date of birth recorded-neither on basis of
High School Certificate nor on basis of
Medical
Certificate-after
getting
retirement
notice-application
of
correction rejected on ground of delayHeld-authorities
himself
committed
great illegality by ignoring the date of
birth mentioned in Service Record-order
quashed but towards payment of salary
lump sum amount of Rs. 5000/-given

Held: Para 25 and 30

Therefore I am of the opinion that the
respondents were duty bound to correct
the date of birth as mentioned in the
High School certificate, which has not
been disputed by the respondents, only
on intimation of the petitioner.

However the respondents are directed to
pay Rs. 50,000/- lump sum and grant the
post retiral benefits treating him in
service on the basis of date of birth
recorded in High School certificate i.e.
1.1.1949. The respondents are also
directed to release the post retiral dues
and other benefits within a period of
three months from the date of receipt of
certified copy of the order of this Court.

Case law discussed:
2006 (1) ESC 80 (All); 1993 (2) SCC 162; 2006
(6) SCC 537; AIR 2010 SC 2295; 2008 ESC (4)
2251

## Text

2 All Hari Ram Gupta V. State of U.P. and others
729
of 2008 Rules and cannot be relaxed at all.
Besides, as I already said, it is applicable to
a person who has already been appointed
and not one who has yet to be recruited.

18. In view of above discussions, the
writ petition lacks merit.

19. Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2011

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 39406 of 2007

Hari Ram Gupta

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.B. Yadav

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
of
Service
Determination of Date of Birth Rules
1974-Rule-2-Date
of
Birth-Petitioner
already passed High School examinationbefore joining of Service-in Service Book
date of birth recorded-neither on basis of
High School Certificate nor on basis of
Medical
Certificate-after
getting
retirement
notice-application
of
correction rejected on ground of delayHeld-authorities
himself
committed
great illegality by ignoring the date of
birth mentioned in Service Record-order
quashed but towards payment of salary
lump sum amount of Rs. 5000/-given

Held: Para 25 and 30

Therefore I am of the opinion that the
respondents were duty bound to correct
the date of birth as mentioned in the
High School certificate, which has not
been disputed by the respondents, only
on intimation of the petitioner.

However the respondents are directed to
pay Rs. 50,000/- lump sum and grant the
post retiral benefits treating him in
service on the basis of date of birth
recorded in High School certificate i.e.
1.1.1949. The respondents are also
directed to release the post retiral dues
and other benefits within a period of
three months from the date of receipt of
certified copy of the order of this Court.

Case law discussed:
2006 (1) ESC 80 (All); 1993 (2) SCC 162; 2006
(6) SCC 537; AIR 2010 SC 2295; 2008 ESC (4)
2251

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari
quashing
the
order
dated
16.8.2007 passed by Executive Engineer,
Construction Revision, Public Works
Department,
District
Maharajganj
(respondent no. 3) by which the petitioner's
application for correction of date of birth in
the service book has been rejected on the
ground that the date of birth recorded in
the service book at the time of entry in the
service shall be deemed to be correct. This
was done on the basis of legal advice
taking note of the provisions contained in
(U.P.
Recruitment
of
Services
Determination of Date of Birth Rules)
1974 (herein after referred to as Rules
1974).

2. The facts giving rise to this case
are that the petitioner was appointed as a
roller driver on 1.3.1980 and was
confirmed on the said post on 30.8.1982.
While entering into the service his date of
birth in the service book was recorded as
20.8.1947. Taking note of that the
730 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner was served with the notice of
retirement dated 20.3.2007 treating the
petitioner's date of birth as 20.8.1947.
After coming to know about the notice
dated 20.3.2007 issued by Executive
Engineer Construction Division, Public
Works Department, District Maharajganj,
the petitioner has given an application
mentioning therein that the petitioner has
passed High School Examination in the
year 1967 and in the High School
Certificate, his date of birth is mentioned
as 1.1.1949. Along with application, the
petitioner has also filed photo stat copy of
the High School certificate but no decision
was taken thereon and petitioner thereafter
filed Civil Misc. Writ Petition No.2232 of
2007. This writ petition was disposed of on
11.5.2007 with the observation that for
redressal of his grievance the petitioner
may file application before the authority
concerned. The direction was also issued
to the respondents to decide the petitioner's
representation before he reaches the age of
superannuation. Copy of the order passed
by this Court is brought on record as
Annexure 4 to the writ petition. It is
thereafter the petitioner has filed the
certified copy of the order of this Court
along with fresh representation and the
same was rejected by the impugned order
dated 16.8.2007 on two grounds :-

(1) the application has been filed at
the fag end of service.

(2) In view of Rules of 1974 the date
of birth recorded in the service book at the
time of entry into service shall be deemed
to be correct.

3. Sri R.B.Yadav, learned counsel
appearing for the petitioner, referring to
Rule 2 of Rules 1974, has submitted that in
the case of an employee who entered into
the service after passing of the High
School Examination, his date of birth
recorded in the High School Certificate
shall be treated to be correct date of birth
and in case while entering into the service
the employee has not passed High School
Examination, the date of birth recorded in
the service book shall be treated to be
correct date of birth. In his submissions,
the respondent has erred in rejecting the
petitioner's application and retiring him
treating his date of birth as 20.8.1947.

4. In support of his submissions, he
has placed reliance upon the judgment of
this Court in the case of Hari Shankar
Pandey Vs. U.P. Power Corporation,
Lucknow and others 2006 (1) ESC 80
(All).

5. Refuting the submission of learned
counsel for the petitioner, learned standing
counsel has submitted that the petitioner
has not filed High School certificate while
entering into the service therefore at the
fag end of the service he cannot be
permitted to take benefit of the date of
birth recorded in the High School
Certificate.

6. In his submissions, in view of the
rules of 1974, no application for correction
of date of birth can be entertained. He has
placed reliance upon the government order
dated 7.6.1980 annexed as annexure 1 to
the supplementary counter affidavit dated
4.1.2011 mentioning therein that the date
of birth recorded in the service book shall
be
final
for
all
purposes.
In
the
submissions of learned standing counsel,
there is neither any infirmity nor illegality
in the order impugned and the writ petition
deserves to be dismissed.
2 All Hari Ram Gupta V. State of U.P. and others
731

7. In response to the writ petition as
well as supplementary affidavit, the
respondents have filed counter affidavit,
supplementary
counter
affidavit
and
second supplementary counter affidavit
stating therein that the petitioner's date of
birth was recorded on the basis of medical
certificate
of
Senior
Medical
Superintendent
S.S.P
Gupta
Hospital
Varanasi.
According
to
which,
the
petitioner has stated that he is of about 27
years but the Doctor has recorded that he
appears to be 35 years. First page of the
service book has also been brought on
record mentioning the date of birth
20.8.1947. In the supplementary counter
affidavit sworn on 30th March, 2009, it has
been stated that the petitioner kept mum
for about 25 years after entering into
service and at the fag end of the service he
has filed an application for correction of
date of birth in the service book which is
impermissible. Whereas through second
supplementary
counter
affidavit
the
respondents have brought on record the
relevant Rule 2 of Rules of 1974 as
amended in the year 1980. The letter dated
22.12.2010 issued by Deputy Secretary
Madhyamic Shiksha Parishad verifying the
petitioner's
passing
High
School
Examination in the year 1967 recording
date of birth dated 1.1.1949. In reply
thereto the petitioner has filed rejoinder
affidavit
as
well
as
supplementary
rejoinder affidavit. These affidavits may be
referred as and when it is required.

8. I have heard Sri R.B.Yadav,
learned counsel for the petitioner and
learned standing counsel and gone through
the record of writ petition and various
affidavits filed by the parties.

9. It is not in dispute that the
petitioner has entered into service for the
first time on 1.3.1980 and was made
confirmed on 30.8.1982. The petitioner has
filed an application for correction of date
of birth only after receipt of the notice
dated 20.3.2007 intimating him to retire
with
effect
from
31.8.2007.
The
petitioner's application was considered
only after the order of this Court dated
11.5.2007 passed in Writ Petition No.
22321 of 2007 and respondent no.3 has
rejected the same on the ground of legal
advice which was given on the basis of
Rules of 1974.

10. For better appreciation the
running language of Rule 2 of the Rules of
1974 as amended by first amendment in
the year 1980 is reproduced below by
splitting it into three parts.

(a) 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.

(b) Where a Government servant has
not passed any such examination as
aforesaid or has passed such examination
after joining the service, the date of birth
or the age 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 to his service,
including
eligibility
for
promotion,
superannuation, premature retirement or
retirement benetis and.

(c) No application or represention
shall be entertained for correction of such
date
or
age
in
any
circumstances
whatsoever.
732 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

11. From the perusal of impugned
order dated 16.8.2007 which reads as
under :-

^^ ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k ij
fof/k vf/kdkjh ls fof/kd jk; yh x;h] ftl ij muds
}kjk ;g jk; nh x;h fd ^^ mRrj izns'k lsok eas HkrhZ
1⁄4tUe~ frfFk vo/kkj.k fu;ekoyh 19741⁄2 ds izkfo/kkuksa ds
vuqlkj lsok esa fu;qfDr ds le; vafdr tUe~ frfFk
lHkh iz;kstuksa ds fy, lgh ekuh tk;sxh^^A

12. It transpires that the legal adviser
of the department has only considered the
second conditions of the Rule 2 i.e. date of
birth recorded in the service book at the
time of entry into service be deemed to be
correct and ignored the first part of
amended Rule 2 which talks about the
correctness of date of birth which is
recorded in the High School certificate and
has given opinion that it cannot be
corrected. The Deputy Secretary of the
U.P. High School and Intermediate Board
has in fact admitted the factum of
petitioner's passing High School in the year
1967and issuing of High School certificate
containing date of birth dated 1.1.1949
(annexure 2 to the supplementary counter
affidavit). Now in this context the last
proviso of Rule 2 which contains the
words "no application or representation
shall be entertained for correction of such
date
or
age
in
any
circumstances
whatsoever." is required to be considered.
For understanding the object of the
relevant rule, the last portion of the Rule
cann't be read in isolation and it has to be
read as a whole i.e. along with part (a) (b)
and (c) as spilitted above. The words used
"No application or represention shall be
entertained for correction of such date or
age in any circumstances whatsoever." is
referable to the date of birth recorded in the
High School certificate as well as date of
birth recorded in service book.

13. If the language used in the
second part (Part b) of Rule 2 of first
amendment 1980 is looked into, it will
transpire that this part will only come into
play when the first part is missing i.e.if a
government servant has not passed High
School Examination while entering into
the service then the date of birth recorded
in the service book shall be deemed to be
correct and if the government servant has
passed High School Examination prior to
entry into service then the date of birth
recorded in the High School certificate
shall be deemed to be correct.

14. The word used in the bottom of
Rule i.e., no application or representation
shall be entertained for correction of such
date or age in any circumstances
whatsoever, is to be read such date means
the date of birth either recorded in the
High School certificate or service book
and for such correction of date of birth no
application shall be entertained. Here the
situation is very anomalous as admittedly
the petitioner has passed High School
Examination prior to the joining of
service in the year 1980 and in the High
School certificate his date of birth is
recorded on 1.1.1949 and in the service
book it is recorded as 20.8.1947 and if the
rule is literally interpreted then no
application can be entertained and that
will defeat the very purpose/object of the
Rule 2. Therefore, it is to be interpreted in
a manner to achieve the object of the rule
which can be done taking notice of the
contents as contained in part (a) and (b),
(beginning and middle part of the rule)
the language used in Part (b) is very
apparent and unambiguous saying that
where a government servant has not
passed such examination as aforesaid or
has passed examination after joining the
service the date of birth or age recorded in
2 All Hari Ram Gupta V. State of U.P. and others
733
the service book at the time of his entry
into government service shall be deemed
to be correct but here the petitioner has
already passed High School Examination
therefore the Part (b) will not play any
role and the date of birth recorded in the
High School certificate shall prevail and
only by giving this interpretation the
object of the rule can be achieved.
Therefore, I am of the considered opinion
that the order passed by respondent no. 3
is unsustainable for the following reasons.

(a) The competent authority has not
passed this order after applying his own
mind and based his decision on the basis
of legal advice. It is well settled that legal
advice can be made a basis for passing the
order
but
the
competent
authority
authorised under statute to do a particular
thing cannot wash off his hand from
applying his own mind and basing the
decision only on the basis of legal advice.
The authority concerned ought to have
applied his own mind before passing the
impugned order taking note of the
relevant provisions of the Rules as whole.

(b) The Part (a) of Rule 2 as referred
above
has
not
been
taken
into
consideration either by the legal adviser
of the department or by the authority
concerned who has passed the impugned
order which clearly states that if the
person has entered into service after
passing High School Examination the
date of birth recorded in the High School
certificate shall be deemed to be correct.
The part (b) which talks about the date of
birth recorded in service book, if the
employee has not passed High School
Examination before entering into service
or has passed after entering into service
will be eclipsed by the shadow of part (a).

15. In this case, there appears to be
one interesting feature that even the
medical certificate on the basis of which
date of birth as has been recorded in
service book is not based on any medical
examination. From the perusal of the
medical certificate annexed with the
counter affidavit sworn on 21st May,
2008 by Doctor D.P.Rai, it transpires that
it is a certificate mentioning therein that
according to the candidate/petitioner's
statement, his age is 27 years whereas by
appearance he appears to be 35 years. In
the service book, the petitoner's date of
birth is recorded 20.8.1947 it has neither
been recorded on the basis of petitioner's
statement nor on the basis of Doctor's
report, according to the doctor, the
petitioner appeared to him to be 35 years.
If the petitioner's statment was taken to be
true that he is of 27 years, the date of birth
in the year 1980 should have been
recorded as 1953 and if it was recorded
according to doctor's assessment it was to
be 1943 as the doctoer has assessed him
as 35 of years.

16. I am of the view that doctor's
certificate could only be taken into
consideration if the petitioner had not
passed High School Examination.

17. It appears that the respondent
had not required the petitioner to file High
School certificate which is born out from
the perusal of paragraph no. 5 of the writ
petition, which is reproduced below :-

That in brief the facts of the case are
huge posts of Class IV employees in
P.W.D.
National
Highway
Division
Varanasi arose and the petitioner along
with other persons appeared and selected
and
they
were
sent
for
medical
examination before the Chief Medical
734 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Officer and at that time the respondents
did
not
accept
the
High
School
Certificate.

18. There is no specific denial of
paragraph no. 5 but the vague reply of
paragraphs no. 2 to 18 have been filed in
paragraph no. 9 of the counter affidavit
which is reproduced below.

That the contents of paragraphs no.
2 to 18 of the writ petition are not
admitted hence denied. In reply it is
submitted that the petitioner, Hari Ram
Gupta was appointed as Roller Driver in
the office of the answering respondent
and at the time of confirmation the
petitioner was medically examined by the
Senior Medical Superintendent, Varanasi
and on 20.8.1982 and at that time the age
of the petitioner was recorded as 35 years
in the service book and the petitioner also
accepted and made signature on his
service-book. Thereafter the service-book
of the petitioner was prepared and the
date of birth mentioned as 20.8.1947 as
per Medical Examination Certificate. It is
further submitted that the petiioner has
not submitted any objection at the time
regarding his date of birth. After a long
gap first time the petitioner submitted a
representation
with
objection
on
30.3.2007 that the date of birth, which is
registered in the service-book is not
correct and the petitioner has also filed a
writ petition no. 22321 of 2007 before this
Hon'ble Court. It is further submitted that
in compliance of the Hon'ble Court by
order dated 11.5.2007 passed by this
Hon'ble Court the answering respondent
decided the representation of the case and
on
17.8.2007
the
same
shall
be
communicated to the petitioner.

It is further submitted that in the
aforesaid
order,
the
answering
respondent stated that the date of birth,
which is recorded in your service book
would be treated as correct in all respect
and the petitioner has not objected from
last 24 years regarding his date of birth
therefore after expiry of 24 years the such
type of objection is rightly rejected by the
answering respondent. It is also settled by
the Hon'ble Apex Court as well as
Hon'ble High Court that fake end of the
services of the employee the correction in
the date of birth is not permissible
therfore on this sole ground the writ
petition is liable to be dismissed.

19. From the perusal of reply of
paragraphs no. 2 to 18 it transpires that
the respondents have understood the
doctor's certification as correct proof of
age which is apparently illegal as there
was no real assessment of the age after
medical examination of the petitioner but
it appears that it was a mere suggestion of
a doctor and date of birth recorded in the
service book on the basis of mere
suggestion of a doctor to my mind cannot
prevail over the date of birth recorded in
High School certificate that too in the
circumstances when the petititioner has
entered into service before passing the
High School Examination.

20. Had the respondents required the
petitioner to produce the High School
Certificate, there was no occasion for the
petitioner to conceal the same. Prima
facie it appears to be an outcome the
ignorance of the petitioner and non
application of mind of the respondents as
well who have treated the certificate of
the doctor as correct which was merely an
advice and not the certificate based on
any medical examination of the person
2 All Hari Ram Gupta V. State of U.P. and others
735
concerned, on this ground also the
concerned respondent ought to have
applied his mind before rejecting the
petitioner's application.

21. So far as the change of date of
birth at the fag end of service is
concerned, the Hon'ble Apex court as well
as this Court has never prohibited the
same but has observed that the court
should move on slow pace in interfering
with these kind of matters.

22. The Apex Court in Union of
India Vs. Harnam Singh 1993 (2) SCC
162 has observed as under.

" 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 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."

An application for correction of the
date of birth should not be dealt with by
the courts, the Tribunal or the High Court
keeping in view only the public servant
concerned. It need not be pointed out that
any such direction for correction of the
date of birth of the public servant
concerned has a chain reaction, inasmuch
as others waiting for years, below him for
their respective promotions are affected
in this process.Some are likely to suffer
irreparable injury, inasmuch as because
of the correction of the date of birth, the
officer concerned, continues in office, in
some cases for years, within which time
many officers who are below him in
seniority waiting for their promotion, may
lose the promotion for ever. Cases are not
unknown
when
a
person
accepts
appointment keeping in view the date of
retirement of his immediate senior. This is
certainly an important and relevant
aspect, which cannot be lost sight of by
the court or the tribunal while examining
the grievance of a public servant in
respect of correction of his date of birth.
As such, unless a clear case on the basis
of materials which can be held to be
conclusive in nature, ismade out by the
respondent and that too within a
reasonable time as provided in the rules
governing the service, the court or the
tribunal should not issue a direction or
make a declaration on the basis of
materials which make such claim only
plausible. Before any such direction is
issued or declaration made, the court or
the tribunal must be fully satisfied that
there has been real injustice to the person
concerned and his claim for corrrection
of date of birth has been made in
accordance
with
the
procedure
prescribed, and within the time fixed by
any rule or order. If no rule or order has
been framed or made, prescribing the
period within which such application has
to be filed, then such application must be
within at least a reasonable time. The
applicant has to produce the evidence in
support of such claim,which may amount
to irrefutable proof relating to his date of
birth. Whenever any such question arises,
the onus is on the applicant to prove
about the wrong recording of his date of
birth in his service book. In many cases it
is a part of the strategy on the part of
such public servants to approach the
court or the tribunal on the eve of their
retirement, questioning the correctness of
736 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the entries in respect of their dates of
birth in the service books. By this process,
it has come to the notice of this Court that
in many cases, even if untimately their
applications are dismissed, by virtue of
interim orders, they continue for months,
after the date of superannuation. The
court or the tribunal must, therefore, be
slow in granting an interim relief or
continuation in service, unless prima facie
evidence of unimpeachable character is
produced beause if the public servant
succeeds, he can always be compensated,
but if he fails, he would have enjoyed
undeserved benefit of extended service
and thereby caused injustice to his
immediate junior.

23. The same view has been taken
by the Apex Court in the case of State of
Gujarat Vs. Vali Mohd. Dosabhai Sindhi
2006 (6) SCC 537.

The Apex Court again in the case of
Punjab and Haryana High Court at
Cnandigarh Vs. Megh Raj Garg and
another AIR 2010 SC 2295 has observed
as under.

" 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 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
laches or stale claims, is generally
applied by the courts and tribunals. It is
nonetheless
competent
for
the
Government to fix a time limit, in the
service rules, after which no application
for correction of date of birth of a
Government servant can be entertained. A
Government servant who makes an
application for correction of date of birth
beyond the time, so fixed, therefore,
cannot claim, as a matter of right, the
correction of his date of birth even if he
has good evidence to establish that the
recorded
date
of
birth
is
clearly
erroneous. The law of limitation may
operate harshly but it has to be applied
with all its rigour and the courts or
tribunals cannot come to the aid of those
who sleepover their rights and allow the
period of limitation to expire.

If no rule or order has been framed or
made, prescribing the period within which
such application has to be filed, then such
application must be filed within the time,
which can be held to be reasonable. The
applicant has to produce the evidence in
support of such claim, which may amount
to irrefutable proof relating to his date of
birth. Whenever any such question arises,
the onus is on the applicant, to prove the
wrong recording of his date of birth, in
his service book. In many cases it is a part
of the strategy on the part of such public
servants to approach the court or the
tribunal on the eve of their retirement,
questioning the correctness of the entries
in respect of their dates of birth in the
service books.

24. Form the perusal of dictum laid
down by the Apex Court it is clear that
the Apex court has not totally closed the
door for correction of date of birth but
whatsoever has been observed by the
2 All Hari Ram Gupta V. State of U.P. and others
737
Apex Court is that no application shall be
entertained after period of limitation
prescribed under the relevant rules
coupled with the fact that if there is no
rule it has to be filed within reasonable
time. Further the correction must be
sought on the basis of concreate material
which is unrefutable. These are three
parameters which have to be weighed
while
dealing
with
the
matter
of
correction of date of birth in the service
book. Here in the Rule of 1974 no
limitation is prescribed for applying for
correction of date of birth in the service
book and in fact it prohibits the
correction. As I have observed if the Rule
2 is read as whole then it will transpire
that the date of birth recorded in the High
School
Certificate
or
equivalent
examination or in absence of High School
certificate before entering into service the
date of birth recorded in the service book
shall be deemed to be correct and the last
portion of the rule provides that no
application for correction of date of birth
shall be entertained. Here in fact, literally
the petitioner has filed an application for
correction of date of birth but if one goes
by the rule 2 which is relevant rule, the
correction is automatic as the petitioner
has brought in the notice of the employer
that he has entered in the service after
passing High School Examination in the
year 1967 and there his date of birth is
recorded 1.1.1949 and the date of birth in
the service book will only prevail when
the petitioner has not passed High School
Examination prior to entry into service
and it will come into play in absence of
the employees non passing of High
School Examination before entering into
service. So far as the petitioner's coming
for correction at the later stage is
concerned, it is known fact that service
records are always kept in the custody of
employer and the petitioner being Class
IV employee cannot be judged on high
parameter of legal mechanism.

25. Therefore I am of the opinion
that the respondents were duty bound to
correct the date of birth as mentioned in
the High School certificate, which has not
been disputed by the respondents, only on
intimation of the petitioner.

26. The view taken by me also find
support from the decision of this Court
reported in the case of Hari Shankar
Pandey Vs. U.P. Power Corporation,
Lucknow and others 2006 (1) ESC 80
(All). where this Court has held that the
date of birth recorded in the High School
certificate if the employee has entered
into service after passing High School
Examination shall be deemed to be
correct. On the same line, a Division
Bench of this Court in the case of State of
U.P. Vs. Krishna Murari Lal reported in
2008 ESC (4) 2251 has observed as under
:-

(6) ...................It is also not disputed
that the petitioner had appeared in the
High School examination prior to joining
the service where his date of birth is also
entered as 31.5.1945, therefore, the
contention of the learned Standing
Counsel that the petitioner is estopped
from challenging his date of birth entered
in the service record on the eve of his
retirement, cannot be maintained. Once
an incumbent had a High School
certificate before joining the service, the
said date of birth shall be taken to be
final. The petitioner had no opportunity to
challenge the entry because in all his
papers including seniority list etc., the
same date of birth as entered in his High
School certificate was reflected and it is
738 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
evident that the aforesaid anomaly has
come to his notice only at the time of his
retirement.

(13) From the perusal of the said
Rule 3, it is clear that date of birth of a
government servant as recorded in the
certificate of his having passed the high
School or equivalent examination or
where a Government servant has not
passed any such examinations aforesaid,
the date of birth recorded in his service at
the time of his entry into Government
service shall be deemed to be his correct
date of birth.

(14) The aforesaid rule clearly
indicates that date of birth of a
Governemnt servant as recorded in the
certificate of his having passed the High
School or equivalent examination or
where a Government servant has not
passed such examination, the date of birth
recorded in his service at the time of his
enry into government service has to be
treated as correct date of birth of the
Government servant.

27. Here in this case, the Division
Bench has allwed the appeal and quashed
the order passed by Hon'ble Single Judge
for correcting date of birth on the basis of
High School certificate only on the
ground that in the year 1959 the petitioner
in that case had only appeared in the High
School Examination and failed whereas
Rule 2 requires that the person must have
passed High School Examination before
entering into service. In the present case,
it is not in dispute that the petitioner has
entered into service after passing High
School Examination in the year 1980.

28. In view of the foregoing
discussions, the writ petition succeeds and
is allowed. The impugned order 16.8.2007
passed by respondent no. 3 is hereby
quashed as the petitioner has retired in the
year 2007 therefore no direction can be
issued for reinstatement in service.

29. It is also observed that as the
petitioner has not worked due to pendency
of writ petition after the retirement
treating the date of birth as 1947,
therefore on the principle of 'no work no
pay' no direction is being issued for
paying the salary on the basis of date of
birth recorded in the High School
certificate dated 1.1.1949.

30. However the respondents are
directed to pay Rs. 50,000/- lump sum
and grant the post retiral benefits treating
him in service on the basis of date of birth
recorded in High School certificate i.e.
1.1.1949. The respondents are also
directed to release the post retiral dues
and other benefits within a period of three
months from the date of receipt of
certified copy of the order of this Court.

31. It is also provided that no
application shall be entertained for
payment of arrears of salary etc. except
the post retiral dues on the basis of
petitioner's continuance in service on the
basis of date of birth recorded in the High
School certificate in view of the judgment
of the Apex Court in the case of Punjab
and Haryana High Court (supra) which
provides that correction of date of birth at
fag end of service not only related to the
petitioner but it also affects others.
---------
2 All Ram Chandra Yadav and another V. District Judge, Allahabad and others
739
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2011

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 55538 of 2008

Ram Chandra Yadav and another

 ...Petitioner
Versus
District Judge, Allahabad and others

 ...Respondent

Counsel for the Petitioner:
Sri Shamim Ahmad
Sri Ravi Kiran Jain
SriV.K.Agarwal

Counsel for the Respondent:
Sri Vishnu Gupta
S.C.

Constitution of India, Article 226-words
and
phrases-word-'First
Floor-Ground
Floor numbered a first floor-called-below
the ground floor called as "basement" as
counted by all most common wealth
countries-if
as
per
agreement
the
petitioner not satisfied-may file civil suit
for specific performance or damagecourts are not expert body-the number
of
marks
given
by
Development
Authority-perfectly justified-court below
committed great illegality by taking
different view.

Held: Para 32 and 43

In the said system the floor just above
the ground floor is assigned the number
one and is known as first floor and so on.
All floors below the ground level are
either called lower ground or basement.
In almost All Common Wealth Countries
storeys in a building are counted in the
aforesaid manner. Thus, in a seven
storey building the top most floor would
generally be the 6th floor.

In the above view of the matter, I am of
the
firm
opinion
that
as
per
the
agreement dated 8.6.01 respondent No.3
is entitled to a shop of the specified size
on the first floor of the building as
described in the sanctioned building plan
by the Allahabad Development Authority
and the courts below were not justified
in directing to treat any other floor as
the first floor and in directing for
delivering possession of a shop on such a
floor.

(Delivered by Hon'ble Pankaj Mithal,J.)

1. Petitioners are owners and
landlords of the property No.1029/880
Old Katra, Allahabad. It is said that the
aforesaid property consisted of an old
dilapidated house over 100 years old.
Petitioners
decided
to
develop
the
property and reconstruct a multi-storied
building thereon.

2. Petitioners entered into a
registered agreement with respondent
No.3 on 8.6.01 agreeing for letting out a
portion having an area of 17' X 35' with a
minimum height of 12 ' on the first floor
of
the
proposed
building
facing
Chintamani Road and having access
through the front portion of the building.
The agreement also provided that the
petitioners would construct a multi-storied
building consisting of shops on the
ground floor and the first floor with
residential block on the second floor and
that the landlords would complete the
construction of the first floor within a
period of one year on obtaining sanction
of
the
map
from
the
Allahabad
Development Authority and shall deliver
possession of the same whereupon tenant
would start paying rent @ Rs.3,000/- per
month. The agreement further provided
that if the landlords fail to complete the
constructions within time stipulated and