S. D. Agarwala, J. - (1.) WASI Ullah Siddiqui is a Private Secretary in the establishment of the High Court filed a writ petition No. 17834 of 1990 in this Court claiming that his date of birth is not 20-9-1932 which is recorded in his High School Certificate hut in fact his real date of birth is 11-2-1935. The learned Single Judge of this Court before whom this writ petition, came up for hearing, allowed the writ petition by the judgment dated 1st November, 1991 and by the said judgment further directed that the U. P. Board of High School and Intermediate Education, Allahabad shall hold an enquiry into the application made by WASI Ullah Siddiqui for correction of his date of birth and determine the same after giving an opportunity to the applicant namely, WASI Ullah Siddiqui as also those persons who were interested in contesting the said claim. Against the judgment dated 1-11-91 three Special Appeals have been filed to this Court. Sri WASI Ullah Siddiqui filed a Special Appeal being Special Appeal No, 140/91. The High Court also filed a Special Appeal being Special Appeal No. 155 of 1991. During the pendency of the writ petition Rajender Prasad Kukreti also filed an application for impleadment in the writ petition. This application was allowed by the learned Single Judge. Rajendra Prasad Kukreti was also a Personal Assistant in the High Court at the time when he filed an application for impleadment. Since his promotion was affected in view of the stay order passed by the learned Single Judge he was impleaded as a party and consequently, he has now come up in Special Appeal against the judgment of the learned Single Judge.
(2.) IN view of the directions issued by the learned Single Judge, the U. P . Board of High School and INtermediate Education, Allahabad went into the question as to what is the actual date of birth of Wasi Ullah Siddiqui. On 3-3-92 a report was submitted by the Board to the effect that it did not accept the claim of Wasi Ullah Siddiqui that his date of birth was 11-3-1935 and recorded a categorical finding that in fact the date of birth of Wasi Ullah was 20-9-1932. IN view of this finding given by the Board so far as Special Appeal No. 140/1991 is concerned which was filled by Wasl Ullah Siddiqui since his claim of change of date of birth was not accepted by the Board, his Special Appeal has already been disposed of by us today. Sri S. C. Budhwar appearing in, the Special Appeal filed by the High Court and Sri L. P. Nathani learned counsel appearing on behalf of the appellant in the Special Appeal filed by Rajender Prasad Kukreti have, however, urged that though Wasi Ullah Siddiqui is not entitled to any relief in view of the report submitted by the Board yet they pressed their appeals on the legal ground as to whether the view taken, by the learned Single Judge that the U. P, Recruitment to Services (Determination of Date of Birth) Rules, 1974 (hereinafter referred to as 1974 Rules) are applicable to the High Court employees or not. The learned Single Judge has taken the view that 1974 Rules are not applicable to the High Court employees on the ground that these rules do not lay down the 'conditions of service' of the High Court employees. The Chief Justice of the High Court of Allahabad in the exercise of powers conferred by clause (2) of Article 229 of the Constitution of India framed rules with effect from 13-7-76 namely, the Allahabad High Court Officers and Staff (Conditions of Service and Conduct), Rules, 1976 (hereinafter referred to as the 1976 Rules) laying down the conditions of service of persons serving on the staff attached to the High Court of Judicature at Allahabad. In 1976 Rules there was no specific rule laying down the manner in which the date of birth of the staff was to be determined. Rule 40 of 1976 Rules, however, lays down as follows : "40. Regulation of other matters-(1) All officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice. (2) In respect of all matters (not provided for in these rules) regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations, and exceptions if any, as the Chief Justice;, may, from time to time, specify : Provided that no order containing modifications, variations or exceptions in rules or orders relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with, the approval of the Governor : Provided further that the said powers exercisable under rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct. (3) If any doubt arises in regard tec a particular post in the establishment being corresponding to a post in the State Government the matter will be decided by the Chief Justice.
(3.) SUB-clause (2) of Rule 40 of 1976 Rules above clearly provides that in respect of all matters not provided for in these rules regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations and exceptions, if any, as the Chief Justice may, from time to time specify. In regard to the determination of the date of birth there is no specific rule in the 1976 Rules framed by this Court, the State Government, however, in exercise of the powers under the proviso in Article 309 of the Constitution have made rules as to in what manner the date of birth of government servant would be determined. These rules are nomenclatured as Uttar Pradesh Recruitment to Services: (Determination of Date of Birth) Rules, 1974. They came into effect from 28-5-74. The original rule 2 was substituted by notification of the Government dated 7-6-80 with effect from 28-5-74. The rules as amended which apply to the facts of the present case are quoted below :- "1. Short title and commencement!;.-(1) These Rules may be called the Uttar Pradesh Recruitment to Service (Determination of Date of Birth) Rules, 1974. (2) They shall come into force at once. 2. Determination of correct date of birth of age. -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 of 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 of his service, including eligibility for promotion,, superannuation, premature retirement of retirement benefits, and no application or representation shall be entertained for correction of such date of age in any circumstances whatsoever. Comments Rule 2 has been substituted by Karmik Department Notification No. 41/II/69-K-2, dated 7-6-80, with effect from 28-5-1974. 3. Overriding Effect.-These rules shall have effect, notwithstanding anything contrary contained in the relevant service rules or orders. ;