# Smt. Kavita Kureel v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** Writ-A No. 9226 of 2023
- **Bench:** Manjive Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kavita-kureel-v-state-of-u-p-ors-49581
- **Pages:** 12

## Headnote

C.S.C., Sri Chandrakesh Rai, Sri Rama Nand
Pandey

Date
of
birth-Correction
of-U.P.
Recruitment to Service (Determination of
Date of Birth) Rules, 1974-Rule 2 as
amended in 1980-Provides that DOB
recorded in High School certificate at the
time of entry into service shall be finalSubsequent correction of DOB in academic
records by Board-Cannot override DOB
already recorded in service record based
on existing documents at the time of
appointment-Held:
Application
for
correction of date of birth at fag end of
career not maintainable; Rule prohibits
such correction in any circumstances.

Held: Para 27, 34, 35
The amended Rule 2 of the 1974 Rules clearly
mandates that the date of birth recorded in the
High School certificate at the time of entry into
government service shall be final for all servicerelated purposes. The subsequent correction in
the High School certificate issued by the Board
in
2021-after
the
petitioner's
initial
appointment in 2006-cannot form basis for
altering the DOB in the service book. Since
petitioner's DOB was recorded as 3.11.1960 at
the time of appointment, and the correction
came much later, Rule 2 bars any application for
change of such entry, even on the ground of
subsequent
correction
by
the
academic
authority.

Writ Petition Dismissed.

Followed:
U.P. Madhyamik Shiksha Parishad Vs Raj Kumar
Agnihotri, (2005) 11 SCC 465

Distinguished:
Hari Ram Gupta Vs St. of U.P., 2011 (6) ADJ
282

## Text

_Characters 0–39,372 of 41,146. This is a partial read: ask again with offset=39372 for what follows._

368 INDIAN LAW REPORTS ALLAHABAD SERIES
the case and shall apply its independent
mind for adjudication of the case.

(45) In the facts of the present case,
there shall be no order as to costs.
----------
(2023) 12 ILRA 368
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2023

BEFORE

THE HON'BLE MANJIVE SHUKLA, J.

Writ-A No. 9226 of 2023

Smt. Kavita Kureel ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kailash Singh Kushwaha

Counsel for the Respondents:
C.S.C., Sri Chandrakesh Rai, Sri Rama Nand
Pandey

Date
of
birth-Correction
of-U.P.
Recruitment to Service (Determination of
Date of Birth) Rules, 1974-Rule 2 as
amended in 1980-Provides that DOB
recorded in High School certificate at the
time of entry into service shall be finalSubsequent correction of DOB in academic
records by Board-Cannot override DOB
already recorded in service record based
on existing documents at the time of
appointment-Held:
Application
for
correction of date of birth at fag end of
career not maintainable; Rule prohibits
such correction in any circumstances.

Held: Para 27, 34, 35
The amended Rule 2 of the 1974 Rules clearly
mandates that the date of birth recorded in the
High School certificate at the time of entry into
government service shall be final for all servicerelated purposes. The subsequent correction in
the High School certificate issued by the Board
in
2021-after
the
petitioner's
initial
appointment in 2006-cannot form basis for
altering the DOB in the service book. Since
petitioner's DOB was recorded as 3.11.1960 at
the time of appointment, and the correction
came much later, Rule 2 bars any application for
change of such entry, even on the ground of
subsequent
correction
by
the
academic
authority.

Writ Petition Dismissed.

Followed:
U.P. Madhyamik Shiksha Parishad Vs Raj Kumar
Agnihotri, (2005) 11 SCC 465

Distinguished:
Hari Ram Gupta Vs St. of U.P., 2011 (6) ADJ
282

(Delivered by Hon'ble Manjive Shukla, J.)

1.

Heard
Sri
Kailash
Singh
Kushwaha, learned counsel appearing for
the petitioner, learned Standing Counsel
appearing for the Respondents No.1 and 2
as well as Sri Rama Nand Pandey, learned
counsel appearing for the Respondents
No.3 and 4.

2. Petitioner through this writ petition
has challenged the order dated 19.4.2023
passed by the District Basic Education
Officer, Jhansi, whereby earlier order dated
25.3.2023 by means of which date of birth
of the petitioner entered in service record
was corrected, has been recalled and
petitioner has been retired from service on
the basis of her date of birth as 3.11.1960.

3. Facts of the case, in brief, are that
petitioner in the year 1981 passed out
examination of 8th Class from Jwala Devi
Vidya Mandir, Kanpur and from there
transfer certificate was issued wherein her
date of birth finds mention as 3.11.1967.
Thereafter, petitioner passed out her High
School examination in the year 1983 and a
12 All. Smt. Kavita Kureel Vs. State of U.P. & Ors.
369
provisional certificate was issued by
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh, wherein her date of birth finds
mention as 3.11.1967.

4.
 Though
in
the
provisional
certificate of the High School examination
issued to the petitioner her date of birth was
recorded as 3.11.1967 but when she was
issued marksheet and certificate of the
High School examination, then in the said
documents her date of birth was recorded
as 3.11.1960. Petitioner initially met the
Principal
of
Adarsh
Balika
Higher
Secondary School, Kanpur and requested
for correction of her date of birth in the
High School marksheet and certificate but
when nothing was done on his part,
petitioner
on
8.9.1997
submitted
an
application
to
Additional
Secretary,
Regional Office of Madhyamik Shiksha
Parishad, U.P. Allahabad and thereby she
requested for correction of her date of birth
in
the
High School
marksheet
and
certificate by replacing incorrect date of
birth i.e. 3.11.1960 by 3.11.1967. Petitioner
again submitted an application to Secretary,
Madhyamik Shiksha Parishad, Allahabad
on prescribed proforma on 20.3.1998,
whereby she again requested for correction
in her date of birth.

5. While the case of petitioner for
correction of her date of birth was pending
before Madhyamik Shiksha Parishad, U.P.
Allahabad, she applied for appointment on
the post of Assistant Teacher in district
Auraiya and pursuant to her application she
was appointed as Assistant Teacher in
Primary School Suraidha, Block Eravan
Katra,
District
Auraiya.
Petitioner
submitted her joining on her post on
7.1.2006. After joining of the petitioner her
service book was prepared and on the basis
of her date of birth recorded in the High
School marksheet and certificate date of
birth of the petitioner was recorded in her
service book as 3.11.1960. Petitioner was
transferred from district Auraiya to district
Jhansi and service record of the petitioner
was also transmitted to district Jhansi.

6. Petitioner continued to pursue her
case for correction of date of birth before
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh, but the said case could not be
finalized. Later on, Madhyamik Shiksha
Parishad, Uttar Pradesh realized its mistake
and corrected the date of birth of the
petitioner by replacing 3.11.960 with
3.11.1967.
The
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh
issued
the
marksheet with correct date of birth to
petitioner on 10.9.2021 and in the said
marksheet correct date of birth of the
petitioner finds mention i.e. her date of
birth has been recorded as 3.11.967. The
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh also corrected the date of birth
recorded in the High School certificate of
the petitioner and issued fresh certificate.
Petitioner after correction of her date of
birth in the marksheet and certificate of the
High School examination submitted an
application on 25.7.2022 to the Block
Education Officer, Chirgaon, Jhansi and
thereby requested that her correct date of
birth be recorded in her service book and in
place
of
3.11.1960,
3.11.1967
be
mentioned. Petitioner again submitted an
application to Block Education Officer,
Chirgaon, District Jhansi on 28.12.2022
whereby she requested for correction of her
date of birth in the service book.

7. The District Basic Education
Officer, Jhansi vide letter dated 5.1.20223
directed the Block Education Officer,
Chirgaon, District Jhansi for making
correction in the date of birth of the
370 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner recorded in her service book. The
District Basic Education Officer, Jhansi
vide letter dated 4.3.2023 directed the
petitioner to appear before her on 6.3.2023
at 11.00 a.m. and to submit the documents
on the basis of which she is claiming
correction in date of birth recorded in her
service book. The District Basic Education
Officer,
Jhansi
through
letter
dated
6.3.2023
requested
the
Secretary,
Madhyamik
Shiksha
Parishad,
Uttar
Pradesh, Prayagraj for verification of the
High School marksheet and certificate
issued to the petitioner and in response
thereof, the Secretary, Madhyamik Shiksha
Parishad, Uttar Pradesh, Prayagraj vide his
letter
dated
21.3.2023
verified
the
marksheet and certificate of the High
School examination submitted by the
petitioner.

8. The District Basic Education
Officer, Jhansi after hearing the petitioner
and considering the verification report
provided by the Secretary, Madhyamik
Shiksha Parishad, Uttar Pradesh, Prayagraj
passed an order on 25.03.2023 and directed
for correction of the date of birth of the
petitioner recorded in her service book by
replacing 3.11.1960 with 3.11.1967.

9. Petitioner continued to work on the
post of Assistant Teacher in Primary School
Sultanpura Ki Mata, Block Chirgaon,
District Jhansi but all of a sudden the
District Basic Education Officer, Jhansi has
passed order on 19.4.2023 and thereby she
recalled her earlier order dated 25.3.2023
whereby direction was given for correction
of date of birth recorded in the service book
of the petitioner.

10. The District Basic Education
Officer,
Jhansi
in
the
order
dated
19.4.2023, which is impugned in the
present writ petition, has recorded a finding
that
Rule
2
of
the
Uttar
Pradesh
Recruitment to Service (Determination of
Date of Birth) Rules, 1974 (hereinafter
referred to as Rules of 1974) provides that
date of birth recorded in the service book at
the time of entry in service shall be final
and no correction can be made in the entry
made in the service book and, in view of
the said interpretation of Rule 2 of the
Rules of 1974 she recalled her earlier order
dated 25.3.2023 whereby direction was
issued to correct the date of birth of the
petitioner and further petitioner has been
retired from service.

11. Learned counsel appearing for the
petitioner has submitted that petitioner
prior to her appointment on the post of
Assistant Teacher submitted an application
to Madhyamik Shiksha Parishad, Uttar
Pradesh for correction of date of birth
recorded in her High School marksheet and
certificate but due to inaction on the part of
the authorities of Madhyamik Shiksha
Parishad, the said application was not
decided for a fairly long time and
ultimately Madhyamik Shiksha Parishad,
U.P. Prayagraj has corrected her date of
birth
recorded
in
her
High
School
marksheet and certificate, in the year 2021
and on the basis of corrected documents,
the District Basic Education Officer, Jhansi
vide her order dated 25.3.2023 took
decision to correct the date of birth of the
petitioner entered in her service book.

12. Learned counsel appearing for the
petitioner has vehemently argued that Rule2 of the Rules of 1974 categorically
provides that if a government servant has
passed out High School examination prior
to his initial appointment, then the date of
birth
recorded
in
his
High
School
certificate shall be his date of birth for the
12 All. Smt. Kavita Kureel Vs. State of U.P. & Ors.
371
purposes of service benefits and if he has
not
passed
out
his
High
School
examination
prior
to
his
initial
appointment, then the date of birth recorded
in the service book at the time of his initial
appointment shall be final for all purposes
and no application or representation shall
be entertained for correction of such date of
birth in any circumstances whatsoever.

13. Learned counsel appearing for the
petitioner has further argued that aforesaid
Rule 2 of the Rules of 1974 mandates that
if a government servant prior to entering
into service has passed out his High School
examination, then the date of birth recorded
in the High School certificate shall be his
date of birth for the purposes of service
benefits and in the case of petitioner it is
admitted fact that the date of birth entered
in her High School certificate has already
been corrected by the Madhyamik Shiksha
Parishad, U.P. Prayagraj and therefore, in
view of the aforesaid Rule 2 of the Rules of
1974, her date of birth for the purposes of
service benefits shall be 3.11.1967.

14. Learned counsel appearing for the
petitioner has emphatically argued that
District Basic Education Officer, Jhansi has
passed the order dated 19.4.2023 on
absolutely misreading of the Rule 2 of the
Rules of 1974, whereas the said Rule 2
favours the petitioner's case as there are
two parts in Rule 2, in first part it is
provided that if a government servant prior
to entering into service has passed out High
School examination, then for all purposes
his date of birth recorded in the High
School certificate shall be final and in the
second part it is provided that if a
government servant prior to entering into
the service has not passed out High School
examination, then his date of birth entered
in the service record at the time of his entry
in
service
shall
be
final
and
no
representation for change of date of birth
will be entertained. The case of the
petitioner is covered in the first part of Rule
2 as she prior to entering into service has
passed out High School examination and
since the date of birth recorded in her High
School certificate has been corrected by the
Madhyamik
Shiksha
Parishad,
U.P.
Prayagraj, then for her service purposes the
date of birth recorded in the High School
certificate shall be final and therefore, the
District Basic Education Officer, Jhansi
while correcting the date of birth of the
petitioner in her service book on the basis
of correction made by the Madhyamik
Shiksha Parishad, U.P. Prayagraj in the
certificate of petitioner's High School
examination was perfectly right and as
such, the impugned order dated 19.4.2023
whereby the order of correction of date of
birth has been recalled, is against the
provisions of Rule 2 of the Rules of 1974.

15. Learned counsel appearing for the
petitioner has relied on the judgment of this
court rendered in the case of Hari Ram
Gupta vs. State of U.P. and others,
reported in 2011 (6) ADJ 282 and has
argued that this court in the said judgment
has considered the purport of Rule 2 of the
Rules of 1974 and has held that if a
government servant prior to entering into
service has passed out High School
examination, then his date of birth entered
in High School certificate shall be his date
of birth for service purposes and if during
service period the date of birth recorded in
the High School certificate is changed, then
the changed date of birth shall be the date
of birth of government servant for the
purposes of service.

16. Learned counsel appearing for the
petitioner has also relied on the judgment
372 INDIAN LAW REPORTS ALLAHABAD SERIES
rendered by the Hon'ble Supreme Court in
the case of Tulshi Chaudhary vs. Steel
Authority of India Limited (Sail) &
others, reported in 2022 Legal Eagle (SC)
863 and has argued that the Hon'ble
Supreme Court in the said decision has
permitted for correction in the date of birth
even at the fag end of service career of an
employee. It has further been argued that
the case of petitioner is squarely covered by
the judgment of the Hon'ble Supreme
Court rendered in the case of Tulshi
Chaudhary (supra) and since the date of
birth of the petitioner recorded in her High
School certificate has been corrected,
therefore her date of birth in service record
should be corrected and she should be
allowed to continue in service on the basis
of her date of birth as 3.11.1967.

17. Per contra, Sri Rama Nand
Pandey, learned counsel appearing for the
Respondents No.3 and 4 has submitted that
Rule 2 of the Rules of 1974 provides that
date of birth of a government servant as
recorded in the certificate of High School
or
in
the
certificate
of
equivalent
examination at the time of his entry into
government service shall be his date of
birth for the purposes of service benefits
and no application or representation shall
be entertained for correction of the said
date
of
birth
in
any
circumstance
whatsoever. It has further been argued that
it is admitted fact that on the date of entry
of the petitioner into government service
her date of birth in the certificate of her
High School examination was recorded as
3.11.1960, therefore in view of the
provisions of the Rule 2 of Rules of 1974,
the said date of birth shall be final for the
purposes of service benefits.

18. Learned counsel appearing for the
Respondents No.3 and 4 has further
submitted
that
after
entry
into
the
government service if the date of birth
entered in the High School certificate of the
government servant is changed by the
competent authority, the changed date of
birth cannot be recorded in the service
record of the said government servant as
Rule 2 of the Rules of 1974 prohibits any
application for change of date of birth.

19. Learned counsel appearing for the
Respondents No.3 and 4 has relied on the
judgment rendered by the Hon'ble Supreme
Court in the case of U.P. Madhyamik
Shiksha Parishad and others vs. Raj
Kumar Agnihotri, reported in (2005) 11
SCC 465 and has argued that identical
issue has been dealt with by the Hon'ble
Supreme Court and it has been held that
whatever date of birth of a government
servant has been recorded in the High
School certificate at the time of entry into
the government service, same will be his
date of birth for the purposes of service
benefits
and
cannot
be
changed
at
subsequent stage as Rule 2 of the Rules of
1974 prohibits any application for change
of date of birth.

20. Learned counsel appearing for the
Respondents No.3 and 4 has also relied on
the judgment rendered by the Hon'ble
Supreme Court in the case of Bharat
Coking Coal Ltd. & others vs. Shyam
Kishore Singh [Civil Appeal No.1009 of
2020, arising out of SLP (Civil) No.20627
of 2010], wherein it has been held that
application for change of date of birth by
an employee at the verge of retirement
cannot be considered. It has been argued by
the learned counsel appearing for the
Respondents No.3 and 4 that petitioner in
view of her date of birth recorded in the
service record was due to retire from
service on 2.11.2022, whereas for the first
12 All. Smt. Kavita Kureel Vs. State of U.P. & Ors.
373
time on 25.7.2022 she submitted an
application for correction of her date of
birth and therefore, in view of the aforesaid
judgment of the Hon'ble Supreme Court
the said application could not have been
entertained.

21. In rejoinder, learned counsel
appearing for the petitioner has relied on
the judgments rendered by the Hon'ble
Supreme Court in the case of Bhavnagar
University vs. Palitana Sugar Mill Pvt.
Ltd. and others, reported in AIR 2003 SC
511 and in the case of Bharat Petroleum
Corpn. Ltd. and another vs. N.R.
Vairamani and another, reported in
(2004) 8 SCC 579 and has argued that the
facts of the case decided by the Hon'ble
Supreme Court in the case of U.P.
Madhyamik Shiksha Parishad (supra) are
different to that of the facts of the present
case and therefore, the said decision cannot
be applied in the present case.

22. I have considered the arguments
advanced by the learned counsels appearing
for the parties and have also perused the
record available before this Court.

23. For dealing with the arguments
advanced by the learned counsels appearing
for the parties, it is necessary to have a
brief look of Rule 2 of the Rules of 1974.
The Uttar Pradesh Recruitment to Service
(Determination of Date of Birth) Rules,
1974 came into force with effect from
28.5.1974. Rule 2 of the Rules of 1974 is
extracted as under:-

"2. The date of birth of 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 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
representation shall be entertained for
correction of such date or age in any
circumstances whatsoever."

24. The aforesaid Rule 2 of the Rules
of 1974 was amended by Uttar Pradesh
Recruitment to Service (Determination of
Date of Birth) First Amendment Rules,
1980 and the amended Rule 2 reads as
under:-

"2. 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 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 benefits, and no
application or representation shall be
entertained for correction of such date or
age in any circumstances whatsoever.

25. This court finds that un-amended
Rule 2 of the Rules of 1974 provided that
the date of birth of a government servant
recorded in the High School certificate
shall be final for the purposes of service
benefits but the legislature in the year 1980
374 INDIAN LAW REPORTS ALLAHABAD SERIES
has made amendment in Rule 2 and thereby
has provided that the date of birth of a
government servant as recorded in his High
School certificate at the time of his entry
into the government service shall be final.
It appears that the legislature in its wisdom
has amended Rule 2 of the Rules of 1974
and has intentionally inserted the words "at
the time of his entry into the government
service". Therefore, in view of the amended
Rule 2 of the Rules of 1974, the date of
birth of the government servant which was
recorded in the High School certificate at
the time of his entry into the government
service shall be his date of birth for the
purposes of service benefits.

26. This court also finds that Rule 2
of the Rules of 1974 provides that the date
of birth entered in the High School
certificate at the time of entry of a
government servant into the government
service or if he has not passed out High
School examination, then the date of birth
entered in the service book at the time of
his entry into the government service shall
be final for all service benefits and no
application or representation shall be
entertained for correction of said date of
birth in any circumstance whatsoever.
Therefore, it is patently manifest that Rule
2 of the Rules of 1974 clearly provides that
the date of birth of a government servant
for the purposes of service benefits has to
be decided at the time of his entry into the
government service i.e. either on the basis
of date of birth entered in the High School
certificate at the time of entry into the
government service or if government
servant has not passed out the High School
examination, then the date of birth in his
service book at the time of his entry in the
government service shall be final and no
application for change of date of birth in
any circumstance can be entertained.

27. I find that petitioner's date of birth
in her High School certificate at the time of
her entry into the service was recorded as
3.11.1960, therefore in view of the
provisions of the aforesaid Rule 2 of the
Rules of 1974, her date of birth for the
purposes of service benefits shall be
3.11.1960 and no application for change of
her date of birth can be entertained. In the
case of the petitioner, her date of birth
recorded in the High School certificate has
been changed by the U.P. Madhyamik
Shiksha Parishad, Prayagraj in the year
2021 but on the said basis her date of birth
recorded in her service record cannot be
changed in view of the prohibition
contained in Rule 2 of the Rules of 1974.

28. Petitioner has relied on the
judgment of this court rendered in the case
of Hari Ram Gupta vs. State of U.P. and
others, reported in 2011 (6) ADJ 282,
wherein this court found that Mr. Hari Ram
Gupta prior to entering into service has
passed out High School examination and at
the time of his entry into the service his
date of birth recorded in the High School
certificate was 1.1.1949, whereas in the
service record the date of birth was
wrongly entered as 20.8.1947, therefore
this court found that in view of Rule 2 of
the Rules of 1974 his date of birth entered
in the High School certificate at the time of
entry into the government service i.e.
1.1.1949 is final and accordingly, direction
was issued to correct the date of birth by
replacing 20.8.1947 by 1.1.1949. The
relevant paragraphs of the judgment in the
case of Hari Ram Gupta (supra) are
extracted as under:-

"23. 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
12 All. Smt. Kavita Kureel Vs. State of U.P. & Ors.
375
whatsoever has been observed by the 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.

24. 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.

25. 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 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
376 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

26. 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."

29. This court finds that the facts of
the case of Hari Ram Gupta (supra) decided
by this court are quite different as in the
said case petitioner prior to entering into
government service has passed out High
School examination and in the High School
certificate which was available at the time
of entry into government service his date of
birth was recorded as 1.1.1949 and
therefore, in view of the provisions of Rule
2 of the Rules of 1974 direction was given
to correct his date of birth by replacing
20.8.1947 by 1.1.1949, whereas in the case
of the present petitioner, it is an admitted
fact that at the time of his entry into the
government service her date of birth
recorded in the High School certificate was
3.1.1960 and during service her date of
birth was corrected in the High School
certificate and therefore, in view of the
provisions of Rule 2 of the Rules of 1974
her date of birth entered in the service book
on the basis of date of birth mentioned in
the High School certificate at the time of
her entry into the government service shall
be final and cannot be changed.

30. Petitioner has also relied on the
judgment rendered by the Hon'ble Supreme
Court in the case of Tulshi Chaudhary vs.
Steel Authority of India Limited (Sail) &
others, reported in 2022 Legal Eagle (SC)
863 but the said decision of the Hon'ble
Supreme Court is not in respect of Rule 2
of the Rules of 1974 and therefore, the said
decision is not applicable in the case of the
present petitioner.

31. Respondents No.3 and 4 have
relied on the judgment rendered by the
Hon'ble Supreme Court in the case of U.P.
Madhyamik
Shiksha
Parishad
and
others vs. Raj Kumar Agnihotri, reported
in (2005) 11 SCC 465. The relevant
paragraphs of the judgment of the Hon'ble
Supreme Court rendered in the aforesaid
case are extracted as under:-

"It is thus seen from the above quoted
judgments that this Court has consistently
taken the view that correction in entries
made in Government records on the basis
of which the Government servant got the
service cannot be allowed to be changed
just a few years before retirement or at the
fag end of his retirement.
12 All. Smt. Kavita Kureel Vs. State of U.P. & Ors.
377

17. In the instant case, the U.P.
Recruitment to Services (Determination of
Date of Birth) Rules came into force w.e.f.
28.05.1974. Rule 2 of the Rule was
amended by the first amendment Rules,
1980 of 07.06.1980. The existing rule and
the substituted rule are extracted herein
below:

COLUMN 1
(Existing rule)
COLUMN
2
(Rule
as
hereby
substituted)
"2. The date of birth
of 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 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
representation shall be
entertained
for
correction
of
such
2. 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
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
date or age in any
circumstances
whatsoever."
relation
to
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 or age in any
circumstances
whatsoever.

As per the existing rule, the date of
birth or the age recorded in his service
book at the time of entry into the
Government service shall be deemed to be
the correct date of birth or age, as the case
may be, for all purposes and no application
or representation shall be entertained for
correction of such date or age in any
circumstances whatsoever.

18. The amended rule of 1980 was
deemed to have come into force w.e.f
28.05.1974 and as per the substituted Rule,
the date of birth or the age recorded in the
service book at the time of entry into the
Government service shall be deemed to be
the correct date of birth or age, as the case
may be, for all purposes and that no
application or representation shall be
entertained for correction of date of birth
or age in any circumstances whatsoever.
The respondent has given his date of birth
as 30.07.1941 at the time of entry into
service which has also been recorded in the
service records of the respondent. The
above amended rule which come into force
w.e.f.
28.05.1974
stipulates
that
no
application or representation shall be
entertained for correction of such date or
378 INDIAN LAW REPORTS ALLAHABAD SERIES
age in any circumstances whatsoever and
that the date of birth or age recorded in the
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.

19. In view of the above rule, we hold
that the correct date of birth of the
respondent is only 30.07.1941 and the
claim now made by the respondent to
correct his date of birth from 30.07.1941 to
16.10.1945 cannot at all be entertained or
encouraged."

32. This court finds that the Hon'ble
Supreme Court in its judgment rendered in
the case of U.P. Madhyamik Shiksha
Parishad (supra) has considered the Rule 2
of the Uttar Pradesh Recruitment to
Service (Determination of Date of Birth)
Rules, 1974 and has held that Rule 2 of
the Rules of 1974 was amended in the year
1980 and under the amended Rules, the
date of birth recorded in the High School
certificate at the time of entry into the
government service or if the government
servant at the time of entry into service
has
not
passed
out
High
School
examination, then the date of birth entered
in the service book at the time of entry in
service shall be final and no application
for correction of date of birth whatsoever
shall be considered.

33. This court finds that the
legislature of the State of U.P. has
deliberately amended the Rule 2 of the
Rules of 1974 on 7.6.1980 and thereby has
provided that the date of birth of a
government servant as recorded in the
High School certificate at the time of his
entry into the government service shall be
final for the purposes of service benefits
and no application for change of the said
date of birth shall be entertained. In unamended Rule 2 of the Rules of 1974, the
words "at the time of his entry into the
government service" were missing but
while amending Rule 2 of the Rules of
1974, the said words were inserted by the
legislature only with specific intention that
the issue of date of birth for the purposes
of service benefits has to be finalized at
the time of entry into the government
service and no application for change of
date of birth recorded in the service record
can be entertained.

34. Since it is an admitted case of the
petitioner that her date of birth at the time
of entry into the government service in the
High School certificate was recorded as
3.11.1960 and therefore, even if the date
of birth has been subsequently corrected in
the High School certificate, the date of
birth entered in the service record cannot
be changed in view of the prohibition
contained in Rule 2 of the Rules of 1974.
So far as the judgments of the Hon'ble
Supreme Court relied on by the learned
counsel appearing for the petitioner,
wherein it has been held that the
decision of each case applies to its facts,
are concerned, this court finds that the
Hon'ble Supreme Court in its judgment
rendered in the case of U.P. Madhyamik
Shiksha Parishad (supra) has interpreted
the provisions of Rule 2 of the Uttar
Pradesh
Recruitment
to
Service
(Determination of Date of Birth) Rules,
1974, therefore the said interpretation
made by the Hon'ble Supreme Court
shall apply to each and every case where
Rule 2 of the Rules of 1974 is
applicable.

35. In view of the aforesaid reasons,
writ petition lacks merit and thus is
dismissed.
----------
12 All. Amar Singh Vs. State of U.P. & Ors.
379
(2023) 12 ILRA 379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2023

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 11040 of 2020

Amar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Man Mohan Singh, Sri Anil Kumar Mehrotra,
Sri Ashish Kumar Srivastava, Sri Ashok Khare
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Jitendra Nath Maurya, Sri M.N. Singh,
Sri Nipun Singh

A. Service Law-The Constitution of India,
1950-Article 226 - The Uttar Pradesh
Government
Servant's
Conduct
Rule,
1956-Rule 3, 7 & 9 - The Uttar Pradesh
Government
Servant
(Discipline
and
Appeal) Rules-Rules 7 & 9---(a) Whether
the procedure adopted in conducting inquiry by
constituting technical team was foreign to the
concept of the regular inquiry as contemplated
under the Rules, 1999 and, therefore, holding
such inquiry was de hors the procedure
prescribed
for;
and
(b).
Whether
the
punishment awarded to the petitioner is
disproportionate to the guilt proved.

B. Held---The first charge was proved partly
only and that too on the ground that petitioner
had himself made an admission, that while
trying to delete the message he got the same
forwarded in whatsapp group by wrongly
touching the icon---Incident happened in the
midnight
hours,
therefore,
applying
the
definition of misconduct given in Strout's
dictionary there was nothing to demonstrate
that the petitioner did it intentionally.