AR.LAKSHMANAN, J. - (1.) LEAVE granted.
(2.) THIS appeal is directed against the final judgment and order dated 10.03.2003 passed by the Allahabad High Court, Lucknow Bench, Lucknow in second appeal no. 334 of 1999 whereby the High Court allowed the second appeal filed by the respondent-herein. Respondent was working as S.D.I, in the Education Department. As per his service book, his date of birth was 30.07.1941. The Governor using the powers under conditional part of Article 309 of the Constitution of India framed the following notification. The notification dated 28.05.1974 reads thus:- "State of U.P. Niyukti Vibhag Anubhag-4 Notification 28th May, 1974 No. 41/269 Niyukti-4 Governor using the powers under conditional part of Article 309 of the Constitution of India, frames following Niyamawali:- 1. Short title an commencement /1/ This Niyamawali will be called date of birth determination Niyamawali, 1974 for the purpose of appointment in service in U.P. 2. It shall be enforced at once. /2/. Exact date of birth or determination of age of a Government servant. The date of birth or determination of age of a Government servant which has been written in his High School Certificate or equivalent to it after passing the examination or where a Government servant has not passed any such examination, the date of birth or age which has been written in his service book at the time of entering in Government service, in regard to his services, for all the purposes, whether entitled for promotions/supersession/pre-re-tirement or retirement or retrial benefits, the date of birth or age as mentioned therein. Any application form or application for correction in his date of birth or age will not be accepted in any manner having any circumstances of any cost. 3. The enforcement of this Niyamawali, a relevant service rule or any order which in corporate some reverse matters even shall be effective. By Order /Gulam Hussain/ Commissioner and Secretary The respondent-herein, after a gap of 35 years, filed a Regular Suit No. 176 of 1995 with the prayer to correct his date of birth from 30.07.1941 to 16.10.1945 on the ground that his date of birth was wrongly entered in his High School Certificate of the year 1960 issued by the Madhyamik Shiksha Parishad (hereinafter called "the Parishad"), U.P., Allahabad. A written statement was filed by the Secretary of the Parishad in the said suit explaining the facts that the respondent himself filled up the High School examination form for the year 1960, which was duly forwarded by the Principal concerned after going through the relevant records therein and in view of the High School examination form of the year 1960, the High School Certificate was issued by the Secretary of the Parishad wherein the respondent's date of birth was mentioned as 30.07.1941. It is thus seen that the respondent started litigation for the correction of his date of birth after a gap of 35 years and just four years of his retirement.
(3.) THE Court of Civil Judge [Junior Division], Sitapur delivered its decision dated 17.07.1999 in favour of the respondent with the direction to correct the date of birth from 30.07.1941 to 16.10.1945. Aggrieved by the orders passed in the civil suit, the Parishad filed civil appeal no. 73 of 1999 before the 1st Addl. District Judge, Sitapur who by his order dated 07.08.1999 allowed the appeal of the respondent and held that: ".... It is admitted by the plaintiff that he himself put his signatures on the High School Examination Form. So he is responsible for the entries in this form....." ".... THE evidence given by plaintiff in this case is not of such nature that may be said to be leading to this irresistible conclusion that his date of birth is 16.10.45 and, which may be said to the conclusive and irrefutable proof of the fact that his date of birth is 30.10.45 and that date of birth in his high school examination certificate i.e. 30.7.41 is incorrect and that it should be corrected. THE finding of learned lower court on this point cannot be upheld as the finding is not based on such conclusive and irrefutable proof which may lead to the irresistible conclusion that the date of birth of plaintiff-respondent is 16.10.45 and finding on this point is liable to be set aside. Plaintiff/respondent have failed to prove his allegation that his date of birth is 16.10.45 by any irrefutable conclusive proof. Point for determination no. 1 is decided against the plaintiff/respondent and in favour of the defendant-appellant...." The appellate court also held that the respondent's suit was barred by limitation as the relevant rules framed by the U.P. Board of Education had not been followed by the respondent. As per Rule 7 of G.R. any application for correction is to be made within two years of issuing certificate, while in the present case it was made after more than 15 years i.e. on 25.05.1981 and the suit was filed on 07.04.1995.;