K.B. Asthana, J. - (1.) The plaintiff appellant Smt. Kamla Jaiswal was serving in the year 1969 as Assistant Attendance Officer in the Education Department of the Nagar Mahapalika of Allahabad. She had joined service in the then Municipal Board of Allahabad as an English teacher in the year 1932 or 1933. When she was originally employed she was only a certificate holder of passing Vernacular Final Examination. In 1935 she passed the Admission Examination of the Banaras Hindu University which is recognised as equivalent to the High School Examination of the U.P. Board of High School and Intermediate Education. She was then promoted and it appears she passed further higher examinations and obtained Matter's Degree of the University and eventually came to occupy comparatively senior posts in the department. By a letter dated 10-4-1969 received by her on 11-4-1969 she was informed that having attained the age of superannuation she was retired from service. She protested and made representations to the appropriate authorities of the Mahapalika bringing to their notice that according to the date of birth entered in her Admission Examination certificate as 6-4-1915 she was entitled to remain in service till 6-4-1975 on which date she would have attained the age of sixty years which is the prescribed age of retirement of the Mahapalika's servants. Her representations proved fruitless. She then instituted the suit giving rise to this appeal against the Nagar Mahapalika, Allahabad, in the court of the Civil Judge for a declaration that the order dated 10-4-1969 communicated to her on 11-4-1969 of the Administrator of the Nagar Mahapalika was ultra wires, illegal and ineffective and invalid in law, being in violation of the principles of natural justice and as such the plaintiff legally and factually continued and would be deemed to have continued in her post as Assistant Attendance Officer of the Girls section of the Education Department of the Nagar Mahapalika. Further relief for injunction was sought restraining the defendant for superannuating the plaintiff till 6-4-1975 and from interfering with her work as Assistant Attendance Officer in the Girls Section. The cause of action as pleaded in the plaint was substantially based on Rule 47 of the U.P. Nagar Mahapalika Sewa Niyamawali 1962 which required that for the purpose of retirement of a Mahapalika servant the date of birth as recorded in the High School Examination certificate or in the certificate of an examination recognised by Government as equivalent to that, will be the determining factor. It was pleaded that the defendant was bound by the rule and having acted in the breach of the mandatory rule the order retiring her on the alleged superannuation was void and ineffective. It is, I think, unnecessary to mention here other facts pleaded as nothing substantial will turn on them in this appeal.
(2.) The suit was contested on behalf of the Nagar Mahapalika mainly on the ground that the plaintiff when she joined the service of the then Municipal Board of Allahabad in 1932 had declared her date of birth as 6-4-1909 and her attempt in 1965 to have the date of birth changed to 6-4-1915 proved futile as the then Mukhya Nagar Adhikari had rejected her request for making correction in her service record and thereafter she did not take up the matter to higher authorities. It was pleaded that she was bound by her declaration and it was open to the defendant to retire her she having attained the age of superannuation on 6-4-1969. This was then the main defence.
(3.) The learned Civil Judge dismissed the plaintiff's suit on the finding that she had attained the age of sixty years on 6-4-1969 and was rightly retired from service by the Nagar Mahapalika. The learned Judge was greatly influenced by his finding that she had herself given a declaration of her age in 1982 when she joined service, that her date of birth was 6-4-1909 and subsequently she did not move the higher authorities when her prayer for correction of her age was rejected by the Mukhya Nagar Adhikari and she reconciled to it. It appears from the judgment of the learned Judge that he thought that the Rule 47 of the U.P. Nagar Mahapalika Sewa Niyamawali 1962 as amended in 1965 did not have the effect of making the date of birth as entered in the Admission Examination certificate of the Banaras Hindu University as final and conclusive evidence and it was always open to the Nagar Mahapalika to superannuate her on the basis of the date of birth recorded in the Service-Book. It may, however, be mentioned that the Service Book of the plaintiff was not produced in evidence as it appears to be the common case of the parties that the plaintiff's Service Book has been lost. The learned Judge drew an inference against the plaintiff as she kept herself away from the witness-box despite repeated application having been made on behalf of the defendant calling her for examination. The learned Judge also drew an inference against her from the declaration made by her of her age as twenty five years in a form which was filed in 1938 as also from her letter dated 8-2-1965 by which she requested for the correction of her age in her service record from 6-4-1909 to 6-4-1915.;