# Smt. Kalyani Devi v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-21
- **Case number:** Writ A No. 67182 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalyani-devi-v-state-of-u-p-ors-50888
- **Pages:** 10

## Headnote

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Rule 2 - Date of birth,
2 All. Smt. Kalyani Devi Vs. State of U.P. & Ors.
327
change therein - Petitioner was appointed
as Sweeper and being illiterate, she was
medically examined and on the basis of
Medical Certificate issued by CMO, her
DoB was mentioned as 18.01.1963 in
Service Record in 1983 - However, her
DoB was advanced to 18.01.1956 in 1995
- Validity challenged - Held, the change,
whatever be the basis, is clearly one in
teeth of Rule 2 of the Rules of 1974. Once
the petitioner's age was recorded at the
time
of
her
entry
into
service
as
18.01.1963, there is no scope for effecting
a change, either at the instance of the
petitioner or the respondents, as she had
not passed her High School or equivalent
examination before entry into government
service. (Para 16)

B. Service law - Constitution of India -
Article 14 - Principle of natural justice -
No opportunity of hearing was given
before altering date of birth - Effect -
Held,
the
principle
that
before
the
employer moves to alter the recorded date
of birth of an employee to his/ her
prejudice, they must hear the employee -
Shankar Lal's case relied upon. (Para 20
and 21)

Writ petition allowed. (E-1)

List of Cases Cited :-

## Text

326 INDIAN LAW REPORTS ALLAHABAD SERIES
17.08.2010, passed in Writ A No. 45051 of
2010, reads:

"Today, Secretary, Basic Education,
Government of Uttar Pradesh, Sri Anil Sant is
present in Court and he has filed affidavit,
which is accepted and taken on record.

In the affidavit so filed, it has been
stated that the deponent has recently taken over
charge of the post in question, and has further
mentioned that detailed affidavit will be filed if
so required by this Court.

In the facts of the case, it is hereby
directed that full details be furnished, with
regard to sanctioned posts of teachers, actual
number of teachers functioning in recognised
and aided Institutions, in respect of district
Jaunpur, and the number of teachers who are
functioning under the orders of this Court.

List this case after six weeks,
showing the name of Sri K.S.Kushwaha,
Advocate, for respondents."

39. The aforesaid writ petition is still
pending, and there are no further orders of the
kind which may be said to hold that four posts
of Assistant Teacher alone would be there in a
Junior High School. There are decisions, no
doubt, of this Court speaking on the strength of
Government Orders prescribing the sanctioned
strength issued much later in the day, but,
as said earlier, those later determinations of
sanctioned strength cannot be carried back
into history, to judge the validity of
appointments made decades earlier, where
incumbents have been validly appointed to
the position of an Assistant Teacher in a
Junior High School, like the petitioner.
There is no reason or material to show that
the apparently valid appointment to the
post of an Assistant Teacher in the
Institution, made in favour of the petitioner,
does not entitle him to receive salary. There
is also evidence that he has constantly
taught throughout his tenure.

40. In the opinion of this Court, the
petitioner is, therefore, entitled to payment of
his salary under the Act of 1978, determined in
accordance with the rules, for the entire period
of time that the petitioner has been serving.

41. In the result, this petition succeeds
and shall stand allowed with costs. The
petitioner is entitled to receive salary as an
Assistant Teacher with the Institution from the
date of his appointment, together with all its
revisions, increments and accretions, by
whatever name called, all to be paid to the
petitioner within a period of two months from
the date of receipt of a copy of this judgment by
the District Basic Education Officer, Jaunpur.
The petitioner shall also be paid his current
salary, month by month, like any other Assistant
Teacher.

42. Let this order be communicated to the
District Basic Education Officer, Jaunpur by
the Registrar (Compliance).
----------
(2024) 2 ILRA 326
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2023
BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ A No. 67182 of 2014

Smt. Kalyani Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amar Nath Tiwari, Sri Ramendra Nath
Tiwari

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment to
Services (Determination of Date of Birth)
Rules, 1974 - Rule 2 - Date of birth,
2 All. Smt. Kalyani Devi Vs. State of U.P. & Ors.
327
change therein - Petitioner was appointed
as Sweeper and being illiterate, she was
medically examined and on the basis of
Medical Certificate issued by CMO, her
DoB was mentioned as 18.01.1963 in
Service Record in 1983 - However, her
DoB was advanced to 18.01.1956 in 1995
- Validity challenged - Held, the change,
whatever be the basis, is clearly one in
teeth of Rule 2 of the Rules of 1974. Once
the petitioner's age was recorded at the
time
of
her
entry
into
service
as
18.01.1963, there is no scope for effecting
a change, either at the instance of the
petitioner or the respondents, as she had
not passed her High School or equivalent
examination before entry into government
service. (Para 16)

B. Service law - Constitution of India -
Article 14 - Principle of natural justice -
No opportunity of hearing was given
before altering date of birth - Effect -
Held,
the
principle
that
before
the
employer moves to alter the recorded date
of birth of an employee to his/ her
prejudice, they must hear the employee -
Shankar Lal's case relied upon. (Para 20
and 21)

Writ petition allowed. (E-1)

List of Cases Cited :-

1. Subhash Chand Vs St. of U.P. & ors.; 2023
(2) AWC 1219

2. Nagar Palika Parishad, Kairana Vs Subhash
Chand & ors.; 2023:AHC:93646-DB.

3. Shankar Lal Vs Hindustan Copper Limited &
ors.; (2022) 6 SCC 211

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed
against an order dated 07.07.1995 passed
by the Chief Superintendent, Women
Hospital, Varanasi altering the petitioner's
date of birth from that recorded in her
service-book to 18.01.1956. The one
originally recorded is 18.01.1963. Also,
under
challenge
is
an
order
dated
05.09.2014 passed by the Chief Medical
Superintendent,
Government
Women
Hospital, Varanasi, affirming the fact that
the petitioner's date of birth, according to
the medical certificate issued by the Chief
Medical Officer, Varanasi and recorded in
her service-book is 18.01.1956. Thus, by
the orders impugned, the respondents have
advanced the petitioner's date of birth,
originally recorded in her service-book, by
as much as seven years hastening her
superannuation.

2. The petitioner says that she hails
from the caste known as Valmiki (a
Scheduled Caste). She is illiterate and can
barely sign her name in a clumsy hand. An
advertisement was issued by the Chief
Medical Officer, Varanasi for recruitment
of sweepers at the Government Hospital,
Varanasi. No educational qualifications
were prescribed for the said post. The
petitioner, being qualified for the post of a
sweeper, applied along with others. She
was appointed by the Chief Medical Officer
last mentioned on 31.08.1982 and posted as
a sweepress at the Women Hospital,
Varanasi under the administrative control of
the
Chief
Medical
Superintendent,
Government
Women
Hospital,
Kabir
Chauraha, Varanasi. The petitioner was
medically examined on 18.01.1983 for
ascertaining her correct age. The Chief
Medical
Officer,
Varanasi
issued
a
certificate, estimating the petitioner's age as
27 years on the date of her appointment.
The estimation was made by the Chief
Medical Officer on 18.01.1983 on a casual
determination, without an ossification test.
Nevertheless, in the absence of any record
of the petitioner's age, such as her
educational
certificate
or
a
Nagar
Panchayat record, it was entered in her
328 INDIAN LAW REPORTS ALLAHABAD SERIES
service-book, fixing for her date of birth,
the date 18.01.1963. This determination of
age was apparently made, accepting the
petitioner's assertion about it and not the
Chief Medical Officer's estimation of her
age
carried
in
his
certificate
dated
18.01.1963, which was considered but not
accepted.

3. Much later, the same issue arose
relating to certain sweepers with regard to
their age, which did not concern the
petitioner. Those sweepers said that their
date of birth in the service record was not
correctly recorded.

4. It is the petitioner's case that after
consultation
with
the Chief
Medical
Officer, Varanasi, it was decided that the
date of birth mentioned in the service-book
should
be
treated
as
correct,
and,
accordingly, the report of all the sweepers
working under the control of the Chief
Medical
Superintendent,
Government
Women Hospital, Varanasi, was circulated
by
respondent
No.4
on
07.07.1995.
Surprisingly, the petitioner's name figured
at Sr. No.9, but in the letter dated
07.07.1995 issued by the Chief Medical
Superintendent,
Government
Women
Hospital, Varanasi, her date of birth was
mentioned in column No.6 as 08.01.1963.
In column No.4, the year was mentioned as
1963. There is a case that some unknown
person attempted to change the petitioner's
date of birth from 1963 to 1956, which
does not bear anyone's signatures. Thus, the
actual date of birth of the petitioner was
changed from 1963 to 1956 without her
knowledge, consent and without affording
her an opportunity of being heard. It is also
said that no scientific method, like an
ossification test was adopted to alter the
petitioner's date of birth by dint of the order
dated 07.07.1995.

5. The petitioner has come up with a
case that she thought that the change
notified by the order dated 07.07.1995 was
the result of interpolation, because on
17.06.1998, she was put up for a fresh
medical examination and her age was
estimated by the Medical Superintendent as
35 years. The petitioner has pleaded a case
of forgery in her service-book changing her
date
of
birth
from
18.01.1963
to
18.01.1956. By her pleadings in the writ
petition, it is asserted that she was not
precisely aware of the terms of the order
dated 07.07.1995, authorizing the change
of its contents, being an illiterate person.
She came to know of the fact that there was
a change of her date of birth in her servicebook by word of mouth in the month of
April, 2014 and requested the Chief
Medical
Superintendent,
Government
Women Hospital, Varanasi for the provision
of a copy of her service-book. The officer
remained elusive. The petitioner was
persistent. She was supplied a photostat
copy of her service-book, on the basis of
which, she found that her date of birth was
wrongly mentioned as 27 years there
instead of 20 years on the date of her
appointment. She submitted a complaint,
on 30.08.2014, in this regard to the Chief
Medical
Superintendent,
Government
Women Hospital, Varanasi to enter her
actual date of birth, that was there in her
service-book at the time of appointment
and confirmation. Representations made by
the petitioner herself and on her behalf by
the U.P. Safai Mazdoor Sangh led to no
result.

6. It is the petitioner's case that since
the date of her appointment in service, her
date of birth in the service-book was
recorded
as
08.01.1963,
which
was
changed by dint of the order dated
07.07.1995 without hearing her. The
2 All. Smt. Kalyani Devi Vs. State of U.P. & Ors.
329
change was made on the basis of a medical
certificate, also based on the petitioner's
general appearance and without doing an
ossification test. The petitioner has pleaded
that in view of the Uttar Pradesh
Recruitment to Services (Determination of
Date of Birth) Rules, 1974 (for short, 'the
Rules of 1974'), the date of birth of a nonmatriculate shall be regarded as the one that
is recorded in his/ her service-book at the
time of entry into service for all purposes,
including superannuation. There can be no
change to it, later on.

7. The petitioner's case about the
nature and contents of the order dated
07.07.1995 and the basis of the impugned
change to her date of birth in the servicebook appears to be a bit mixed up and
incorrect about the description of the
relative record. Nevertheless, the thrust of
the case is that the petitioner's date of birth
recorded at the time of her entry into
service was changed after 12 years, based
on mere medical opinion. As would
presently be seen, the change was not based
on any fresh medical opinion sought, but
the same certificate that was issued by the
Chief Medical Officer in the year 1983,
after considering which, years earlier the
petitioner's age was recorded in her
service-book as 08.01.1963.

8. In the counter affidavit filed by
respondent No.4, that is to say, the Chief
Medical
Superintendent,
Government
Women Hospital, Varanasi, it is stated that
the petitioner's date of birth was not
interpolated in her service-book, changing
it from 18.01.1963 to 18.01.1956. The
aforesaid date of birth was recorded
according to the certificate/ opinion given
by the Chief Medical Officer, Varanasi. It is
asserted that the Chief Medical Officer,
Varanasi fixed the petitioner's age at 27
years. It is asserted in Paragraph No.8 that
after expiry of the petitioner's period of
probation, the petitioner's service-book was
prepared and in the age column, her age
was filled up as 27 years on the basis of the
Chief Medical Officer's opinion, which is
final. It is asserted that there is no
overwriting
or
interpolation
in
the
petitioner's service-book, a fact she has
pleaded throughout the petition.

9. In Paragraph No.4 of the rejoinder
affidavit, it is asserted that the petitioner
was appointed in the year 1982 and at that
time, based on her medical examination,
her age was estimated as 20 years. The fact
that it was estimated as 20 years at the time
of her entry into service is evident from a
perusal of the medical certificate dated
18.01.1983, annexed as Annexure No.2 to
the writ petition. It is also averred that in
her service-book, her age was mentioned as
20 years as well, when appointed. There is
also a traverse of the case that the
petitioner's date of birth recorded by the
CMO, Varanasi was 18.01.1956, because
that was not the age mentioned in her
medical certificate dated 18.01.1983, when
she entered service. It was not this age, that
was entered at the time of her appointment.

10. There are other pleas raised,
which need not be recorded for all that they
say.

11. Heard Mr. Amar Nath Tiwari,
learned Counsel for the petitioner and Mr.
Girijesh Kumar Tripathi, learned Additional
Chief Standing Counsel appearing on
behalf of the respondents.

12. Looking to the allegations about
interpolation in the petitioner's date of birth
and the very important fact as to what was
the petitioner's date of birth recorded
330 INDIAN LAW REPORTS ALLAHABAD SERIES
initially, that is to say, at the time of her
entry into service, this Court summoned the
petitioner's service-book in original. A
perusal of the service-book rules out any
case of interpolation. At the same time, it is
true that the petitioner's date of birth
entered in her service-book at the time of
entry in service is 18.01.1963, which is also
written in figures. The basis of this entry is
shown to be CMO's Letter No.19/82-83
dated 18.01.1983. The certificate dated
18.01.1983 by the CMO is based on the
petitioner's general appearance and bodily
development, with the CMO expressing an
opinion
based
on
impression.
The
certificate shows that the petitioner claimed
herself to be 20 years, but the CMO by an
ipse dixit of his, going by general
appearance, thought that the petitioner was
aged 27 years. Nevertheless, the petitioner's
date
of
birth
was
entered
by
the
respondents cognizant of this certificate
dated 18.01.1983 as '18.01.1963' on
06.05.1983, that is to say, at the time of her
entry in service. The CMO's certificate
dated 18.01.1983 is no proof of the
petitioner's age; it is not even based on an
ossification test. It is merely an opinion of
the doctor based on general appearance. In
the absence of supporting medical basis for
the estimation, it is of no worth or value.
All that matters is that when the petitioner
entered into service, the respondents,
cognizant of the Chief Medical Officer's
Certificate dated 18.01.1963, estimated or
acknowledged her to be 20 years old, and,
therefore, recorded her date of birth as
18.01.1963; not 18.01.1956.

13. A further perusal of the servicebook shows that the petitioner's date of
birth originally recorded in words and
figures, has all been scored off in blue ink
and an order in red ink entered at the top of
the page, authorizing the petitioner's date of
birth to be changed. This order is one
indicated to be passed by the Chief Medical
Superintendent,
Government
Women
Hospital,
Varanasi
and
bears
Order
No.55/95-96 dated 07.07.1995. There is a
pointer arrow in blue ink, where, after
scoring out the original date of birth
recorded in the service-book, that is to say,
18.01.1963, the amended date of birth
recorded is 18.01.1956, both in figures and
words. This Court, therefore, finds that
there is absolutely
no
case
of
an
interpolation or forgery. At the same time,
we find that the petitioner's date of birth
originally recorded at the time of her entry
into service has indeed been changed by
dint
of
the
impugned
order
dated
07.07.1995 from 18.01.1963 to 18.01.1956.

14. Now, the question is whether it is
open to the respondents to change the
petitioner's date of birth once recorded in
her service-book given the fact that the
petitioner is neither a matriculate nor the
holder
of
an
equivalent
educational
certificate. The Rules of 1974 have been
made by the Governor under the proviso to
Article 309 of the Constitution. Rules 2 and
3 of the Rules of 1974 read:

"2. 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, or where
Government Servant has not passed any
such examination as aforesaid, the date of
birth or the age recorded in his service
book at the time of his entry into
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 benefits, and no application or
2 All. Smt. Kalyani Devi Vs. State of U.P. & Ors.
331
representation shall be entertained for
correction of such date or age in any
circumstances whatsoever.

3. Overriding effect.-These rules
shall have effect, notwithstanding anything
contrary contained in the relevant service
rules or orders."

15. In this case, there is no dispute
about the fact that the petitioner is an
illiterate woman. She holds no educational
qualifications. She has certainly not passed
her
High
School
or
an
equivalent
examination. Therefore, her date of birth,
recorded in the service-book at the time of
entry into service, shall be deemed to be
her correct date of birth, for all purposes,
including superannuation. The petitioner's
date of birth recorded at the time of her
entry into service was clearly 18.01.1963.
Since
the
medical
certificate
dated
18.01.1983, on the basis of which the
petitioner's date of birth was entered as
18.01.1963, had opined the petitioner to be
about 27 years old as against the 20 years,
claimed by her, the Chief Medical
Superintendent,
Government
Women
Hospital, Varanasi, after a conversation in
this regard and directions issued to him on
27.06.1995 by the Regional Additional
Director, passed the order impugned dated
07.07.1995, changing the petitioner's date
of birth, according to the medical certificate
issued by the Chief Medical Officer,
Varanasi, that is to say, the one dated
18.01.1983. It is by dint of that certificate
and the estimation of the petitioner's age
there as 27 years that the petitioner's date of
birth has now been changed to 18.01.1956
from 18.01.1963.

16. This change, whatever be the
basis, is clearly one in teeth of Rule 2 of the
Rules of 1974. Once the petitioner's age
was recorded at the time of her entry into
service as 18.01.1963, there is no scope for
effecting a change, either at the instance of
the petitioner or the respondents, as she had
not passed her High School or equivalent
examination before entry into government
service. I had occasion to consider this
issue in Subhash Chand v. State of U.P.
and others, 2023 (2) AWC 1219, where it
was held:

"12.
Apparently,
the
first
amendment
does
not
apply
to
the
petitioner's case because he never passed
his High School either before or during
service. When the petitioner entered
service, he was not a matriculate and had
not passed his High School or an equivalent
examination. A perusal of Rule 2 of the
Rules of 1974 makes it pellucid that all that
is relevant for the purpose of recording a
government servant's date of birth is his
High School Certificate or a certificate of
an equivalent examination and in a case,
where the government servant has not
passed any such examination, the date of
birth or age recorded in his service-book at
the time of entry into service shall be
deemed to be correct. A perusal of the
Rules of 1974 would show that any
certificate from an educational institutions
below the Grade of High School is not at
all relevant to determine a government
servant's age. It is perhaps for this reason
that when the petitioner appeared before
the Appointing Authority at the time of
appointment, and as he says, produced his
transfer certificate, he was directed to
appear for his medical examination before
the Chief Medical Officer. Apparently,
when any school certification below the
High School or an equivalent examination
is not relevant to determine the employee's
age, the Appointing Authority would not
have looked into a transfer certificate
relating
to
Class
VII.
These
are
332 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances which show that what the
petitioner asserts is correct. Even if it was
incorrect, the transfer certificate relating to
Class VII is not at all relevant to determine
the petitioner's age. Now, what remains
relevant about the petitioner's age is the
entry at the time of his appointment
recorded in the service-book and nothing
else. The said entry is immutable and
cannot be imperilled by sundry complaints
from busy bodies, or may be sworn
enemies. A government servant's age of
retirement cannot be subjected to perpetual
uncertainty on account of disgruntled
complainants questioning his date of birth
and laying complaints to the Appointing
Authority, saying that the government
servant's recorded date of birth in the
service record is incorrect. If that were
permitted, it would introduce a pernicious
uncertainty about the tenure of government
servants and much affect their efficiency.

13. Quite apart, Rule 3 of Rules
of 1974 indicate that the said Rule gives the
1974 Rules overriding effect over any other
service rules or orders. Therefore, what
Rule 2 provides has to be given its fullest
effect. The result is that the petitioner's date
of birth recorded in his service-book cannot
be questioned. It cannot be questioned by
the petitioner; and likewise, it cannot be
questioned by the employers as well. This
Court, therefore, is of opinion that the
impugned order dated 03.10.2022 is
manifestly illegal and without jurisdiction."

17. It has been brought to the notice
of this Court that the decision in Subhash
Chand (supra) has been set aside on appeal
by the Division Bench in Nagar Palika
Parishad, Kairana v. Subhash Chand
and 3 others, Neutral Citation No.-
2023:AHC:93646-DB.
The
following
remarks of their Lordships of the Division
Bench are relevant:

"From perusal of the resolution of
the Board, Nagar Palika Parishad, it is
evident that an exception has been taken to
the action of the writ petitioner in not
producing the transfer certificate of Class
VII at the time of entry into service in the
year 1991. It was opined that the petitioner
had conveniently concealed his correct date
of birth by projecting him an illiterate
person at the time of entry into service
whereas for promotion to the Safai Nayak,
the transfer certificate was produced in the
year 2003 to seek benfit of the minimum
eligibility criteria of Class V pass, for
promotion to the said post.

The
copy
of
the
transfer
certificate filed by the petitioner has
appended
at
page
No.'17'
of
the
supplementary
affidavit
filed
by
the
counsel for the appellant. Placing the said
certificate before us, it is demonstrated that
the
petitioner
had
concealed
the
material information with regard to
his correct age at the time of entry
into service and the assessment of his
age by the medical experts cannot
override the entry of the date of birth
in the transfer certificate produced by
the petitioner himself for the purposes
of promotion.

Having gone through the transfer
certificate appended at page No.'17' of the
paper book, we find that the said certificate
was issued on 21.01.1984/17.08.1990 and it
bears the seal and signature of the Principal
of the institution concerned having the date
as 17.08.1990. It is, thus, evident that the
transfer certificate was with the petitioner
at the time of joining on the post of Safai
Karmi in the Nagar Palika Parishad on
04.12.1991. It seems that the petitioner had
deliberately concealed the said document in
order to give an impression that he was
illiterate and that was the reason for
2 All. Smt. Kalyani Devi Vs. State of U.P. & Ors.
333
assessment of his age by the medical
expert.

In any case, the date of birth of
the petitioner in the transfer certificate
produced by him for the purpose of
promotion is the proof of his age which
cannot be disputed by the petitioner. The
entry of the date of birth in the transfer
certificate would definitely prevail over the
assessment of the medical expert, in as
much as, the assessment of age through
medical examination
was merely
an
opinion of the expert.

At this stage, the learned counsel
for the respondent No.1/writ petitioner
submits that similar complaint was filed in
the year 2010 by some person which was
turned down by the authority itself with the
assertion that the entry of date of birth in
the service record was final and it could not
be changed for any reason.

We do not find any substance in
the submission of the learned counsel for
the respondent. Having noted the above
facts, we are of the opinion that once the
petitioner availed the benefit of the transfer
certificate of having fulfilled the minimum
eligibility criteria for promotion to the post
of Safai Nayak, he cannot be allowed to
turn around to assert that he is entitled to
continue in service beyond the age of
superannuation as per the entry of his date
of birth in the said certificate, to seek
benefit of the entry of his date of birth in
the service record based on the medical
opinion.

The submission of the learned
counsel for the writ petitioner that the
petitioner is entitled to continue in service
as per the entry of his age/date of birth in
service record, therefore, is turned down.
The stand of the appellant that the
petitioner is not entitled to continue in
service beyond the date of superannuation
which is to be determined as per his date of
birth as 07.01.1961 recorded in the transfer
certificate is found force.

With due respect to the learned
Single Judge, we find that an error has been
committed in holding that the writ
petitioner herein is entitled to continue in
service as per the entry of his date of birth
in the service record. The judgement and
order dated 10.01.2023 is hereby set aside."

18. It appears that the judgment in
Subhash Chand was set aside by their
Lordships, going by the fact that the
petitioner in that case had claimed
promotion to the post of a Safai Nayak,
where the essential qualification was a
Class-V certificate. In order to seek
promotion, he had relied on a transfer
certificate of Class-VII, which he did not
produce at the time of entry into service, as
their Lordships held. He, according to the
Division Bench, concealed his correct date
of birth by projecting himself to be an
illiterate. Going by a plain reading of the
provisions of Rule 2 of the Rules of 1974,
nothing is relevant to determine the age of
a person, who has not passed his High
School examination or an equivalent,
except the date of birth entered at the time
of entry into government service, whatever
be the basis for that entry.

19. The mandate of Rule 2 of the
Rules of 1974 admits of no other
interpretation except that all certificates of
education below that of the High School or
an equivalent are irrelevant for the
determination of a person's age. With great
respect to their Lordships of the Division
Bench, this Court finds that there is no
reference to the provisions of Rule 2 of the
Rules of 1974 in the decision of the
Division Bench in Nagar Palika Parishad,
Kairana v. Subhash Chand (supra). If
there were, on facts, a case here that the
334 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner's date of birth was altered on the
basis of a Class-V or Class-VII certificate,
going against the originally recorded date
of birth at the time of entry into
government
service
relating
to
the
petitioner, this Court, with utmost respect,
would have had no hesitation in referring
the issue for consideration by a larger
Bench, as the Bench decision clearly
ignores the mandatory provisions of Rule 2
of the Rules of 1974 in this Court's opinion.
But, that course of action may not be
necessitated at all in this case, because the
petitioner here is an abject illiterate, as
already noted. Therefore, the consideration
that prevailed with their Lordships of the
Division Bench in Nagar Palika Parishad,
Kairana v. Subhash Chand, the employee
in that case having passed his Class-VII
examination, held a certification thereof,
which mentioned his age different from that
mentioned in his service-book, and above
all, had taken advantage of his qualification
in seeking promotion to a higher post, does
not apply here at all. The Bench decision in
Nagar Palika Parishad, Kairana v.
Subhash Chand, therefore, would not at
all affect the rights of the petitioner here,
founded on Rule 2 of the Rules of 1974.
The petitioner's date of birth, as recorded at
the time of entry into service, is the only
date which would govern all her rights in
respect
of
superannuation,
including
eligibility
for
promotion,
premature
retirement or retirement benefits. No other
date would be relevant. That date can never
be changed or altered. It is, accordingly,
held. For the said reasons, the impugned
orders dated 07.07.1995 and 15.09.2014 are
manifestly illegal.

20. There are added reasons why the
impugned orders are bad. The foremost is
that the petitioner's date of birth originally
recorded in her service-book at the time of
entry in service in the year 1982, remained
so recorded until the year 1995, when the
order
dated
07.07.1995
was
passed,
directing its alteration. The order dated
07.07.1995 was passed, based on some
kind of a conversation on 27.06.1995
between some functionary, described as the
Regional Additional Director and the Chief
Medical
Superintendent,
Government
Women Hospital, Varanasi, without hearing
the petitioner in the slightest measure. The
impugned orders, which visit the petitioner
with adverse civil consequences, have been
passed behind her back, without provision
of any opportunity of hearing. On this short
ground alone, the impugned orders are bad
in law.

21. The principle, that before the
employer moves to alter the recorded date
of birth of an employee to his/ her
prejudice, they must hear the employee
concerned about it, has the imprimatur of
the Supreme Court in Shankar Lal v.
Hindustan Copper Limited and others,
(2022) 6 SCC 211, where it has been held:

"27. We find the action of the
employer lacking in authority of law in this
case on two counts. First, it fails for not
adhering to the principles of natural justice.
The decision not to follow the service book
recordal was taken without giving an
opportunity of hearing to the appellant. The
opportunity of hearing of the appellant also
accrued because the employer themselves
had proceeded on the basis that the later
date i.e. 21-9-1949 was the birthdate of the
appellant and this was a long established
position. Moreover, since in the own
records of the employer two dates were
shown, under normal circumstances it
would have been incumbent on their part to
undertake an exercise on application of
mind to determine in which of these two
2 All. Sunita Mishra Vs. Board of Revenue, UP at Lucknow & Ors.
335
records the mistake had crept in. That
process would also have had to involve
participation of the appellant, which would
have been compatible with the principles of
natural justice."

22. The added reason, which would
persuade this Court to think that the respondents'
action in altering the petitioner's date of birth
recorded at the time of her entry into service is
utterly bad in law, is the fact that the decision is
based on the Chief Medical Officer's certificate
dated 18.01.1983, which proceeds to opine the
petitioner as 27 years old on the basis of her
general appearance. The certification by the
Chief Medical Officer is not founded on any
scientific test like ossification. It is merely an
opinion. Matters get worse for the respondents
here, because this certificate was before them in
the year 1983, shortly after the petitioner entered
into service, and yet, they chose to enter the
petitioner's date birth as 18.01.1963, contrary to
the Chief Medical Officer's estimation. What
made them to rethink their decision after 12
years, quite apart from the embargo in Rule 2 of
the Rules of 1974, is itself a fact, which might
have required more explanation to be carried in
the impugned order than just a conversation
between the Regional Additional Director and
the Chief Medical Superintendent, Government
Women Hospital, Varanasi, that is mentioned
there.

23. The petitioner's case, based on the
medical certificate of 1998 is more of an illfound apprehension that her date of birth was
changed, which she calls an interpolation,
because she was put up for fresh medical test on
17.06.1998 and a certificate of that date issued,
certifying her to be 35 years old by the Medical
Superintendent. The said certificate is irrelevant,
because it does not figure as the basis of the
respondents' decision even in the impugned
order dated 15.09.2014. The order dated
15.09.2014 also refers to the age determination
certificate issued by the Chief Medical Officer,
Varanasi, which is the same certificate dated
18.01.1983, that was issued when the petitioner
entered service. The other order impugned dated
07.07.1995, as a direct consequence of which the
petitioner's date of birth was altered in her
service-book, cannot possibly be based on a
subsequent medical certificate dated 17.06.1998
issued by the Medical Superintendent.

24. In the result, this petition succeeds and
is allowed with costs. The impugned orders
dated 07.07.1995 and 15.09.2014, both passed
by
the
Chief
Medical
Superintendent,
Government Women Hospital, Varanasi, are
hereby
quashed.
The
petitioner,
having
superannuated, will not be reinstated in service,
but shall be entitled to all consequential benefits,
including the payment of arrears of her salary
and the revision of post retiral benefits, which the
respondents shall determine and pay within six
weeks of the date of receipt of a copy of this
judgment.

25. Let the original service-book of the
petitioner be returned to Mr. Girijesh Kumar
Tripathi, learned Additional Chief Standing
Counsel for its onward and safe transmission to
the respondents.
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(2024) 2 ILRA 335
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.01.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ B No. 2 of 2022

Sunita Mishra ...Petitioner
Versus
Board of Revenue, UP at Lucknow & Ors.
 ...Respondents

Counsel for the Petitioner: