S.H.A. Raza, J. - (1.) By means of this writ petition the petitioner has prayed for the issue of a writ in the nature of mandamus commanding the respondents to accept his claim for appointment on the post of Sub-Inspector in the civil police. The petitioner has averred that his father late Sri Hardeo Singh Gangwar, who was employed as a Constable in the Home Department, appeared in the High School Examination in the year 1951. His roll number was 74955 of that year. He failed in the said examination but was allowed to appear in the supplementary examination in which he succeeded and thus passed the High School Examination in the year 1951 itself, and his result was published in the U.P. Gazette. His late father was born on December 29,1932 but it was mentioned in the service record that he was born in 1929. He protested against the incorrect mention of his date of birth and submitted a representation to the respondents but the said date of birth was not corrected. Hence he was ordered to be retired with effect from June 30, 1987. While retiring him from service his date of birth as entered in the High School Certificate and Gazette notification was ignored. Being aggrieved against the said order he preferred a writ petition before this Hon'ble Court which was admitted and an interim order was passed restraining the respondents to retire the petitioner and thus his father continued to maintain his status as Sub-Inspector to which post he was promoted. It was further averred in the writ petition that on account of harassment the petitioner's father fell ill and expired on May 25, 1988 and this fact was communicated to this Court. Thereafter he and his brother as well as his mother were substituted as petitioners, 1/1, 1/2 and ⅓ respectively. The petitioner in the aforesaid writ petition bearing No. 3864/1987, attempted to get an interim relief to the extent that this Court be pleased to direct the respondents to take the petitioner in employment as his father died in harness. This court passed an order in the aforesaid writ petition that since the writ petition was confined to a particular relief, therefore, such relief could not be availed by the petitioner in the said writ petition and hence the application preferred by the petitioner was rejected on November 13, 1988. The petitioner has submitted in his representation before the authorities for his appointment on the basis of Government Order which provides that if a public servant dies in harness any member of his family be given suitable employment. The petitioner's grievance is that he met the respondent and put all the material before him but in vain.The petitioner also submitted that all the heirs of the petitioner's father would make a statement that this writ petition will not be pressed except to the extent that the date of birth should be corrected in the record according to the High School Certificate. The petitioner further contended that the date of birth of the petitioner's father was wrongly mentioned as 1929 but as the petitioner's father continued to remain in employment as such the petitioner deserves to be given appointment in the said department. But his request was refused on the assumption that the father of the petitioner had retired before his death. The petitioner has averred that the respondent are going to make appointments on the post of Sub-Inspector in the last week of September, 1989 and thereafter the vacancies will be filled up. Hence he submitted that in the above vacancies the petitioner may also be adjusted in view of the Government Order No. 8/12/1973-Apptt. 4 dated October 7,1974.
(2.) There is no denying of the fact that the petitioner's father was a police employee and at the time of his death he was working as a Sub-Inspector police. Although he was ordered to be retired with effect from June 30, 1987 but on June 24, 1987 this Court has passed an order to the effect that till the next date of listing petitioner's father Hardeo Singh Gangwar will be permitted to work on his permanent post. Again on December 11,1987 this court was pleased to pass an order to the effect that the interim order dated June 24,1987 shall remain in operation till further orders. The application for vacation of stay order was rejected by this Court. As the effect of retirement notice was stayed by this court the petitioner Hardeo Singh Gangwar would be deemed to be in service when he expired. Hence the opposite parties cannot take the stand that as the petitioner's father was retired prior to his death the petitioner has no right of employment in view of the G.O. No. 8/12/1973-Apptt. 4 dated October 7,1974. No counter-affidavit has been filed on behalf of the opposite parties, rebutting the averments of the writ petition. Hence we have no other alternative except to accept the contention of the petitioner. It is needless to mention that the State of Uttar Pradesh has framed rules to the effect that the determination of the date of birth of a public employee should be the date of birth entered into the High School Certificate. Rule 2 of U.P. Recruitment to service (determination of date of Birth) Rules, 1974reads as follows: "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."
(3.) The petitioner's father late Shri Hardeo Singh Gangwar, who was the petitioner in writ petition No. 3864/1987 appeared at the High School Examination conducted by the U.P. Board of High School and Intermediate Education in the year 1951 but failed. But later on he appeared in the supplementary examination and passed High School in the same year and his result was published in the Gazette on October 13, 1951. In the said Gazette the date of birth was mentioned as December 29, 1932. A few months afterwards, i.e. December 28, 1951 he was appointed as police constable in the U.P. Police. On receipt of the notice of retirement dated April 13, 1987 in which it was stated that he was born sometime in June, 1929 and as such on this calculation he would be retired on June 30, 1987. On April 13,1987 and May 14, 1987, the petitioner submitted representations before the authorities concerned. He also filed an affidavit to the effect on June 4, 1987. A copy of the Gazette Notification dated October 13,1951 was also filed alongwith the said representation. It has been laid down by this Court in Khalil Ahmad v. State of U.P. and others, 1988(6) L.C.D. page 238 that the Gazette is a permanent official record of the Government. After sometimes the application forms may be weeded out. There may be scope of inter-polation in the said form; there is no such scope in the certificate. Because if any inter-polation is done it can be detected by reference to the Gazette notification. It was further held that Rule 2 cannot be said to be arbitrary and violative of Article 14 of the Constitution. It was further held: The opposite parties have not placed on record any document containing petitioner's representation about his age or date of birth. In paragraph of the counter-affidavit it is stated that at the time of recruitment the petitioner stated his year of birth as 1923. the petitioner on the other hand states in paragraph 3 of the writ petition that he got noted to the Recruitment Inspector his date of birth as December 18, 1924. In paragraph 5 he has stated that after his recruitment he was sent to the Civil Surgeon for Medical Examination and he estimated his age in 1943 as twenty years. According to the petitioner his year of birth was recorded as 1923 on the basis of the estimate made by the Civil Surgeon. In paragraph 7 of the counter affidavit which contained reply to paragraph 5 of the writ petition, the petitioner's allegation that he was sent for medical examination and the Civil Surgeon estimated his age to be twenty years, has not been denied. As indicated herein above the petitioner was recruited as constable in the same year in which he appeared at the High School Examination. A few months before entering this service he filled up the High School Examination form in which he mentioned his date of birth. Thus the petitioner was aware not only of his year of birth at the time of his recruitment but also his date of birth. There was, therefore, no occasion for the petitioner to mention only the year of birth and not the date and months of the birth. This lends considerable support to the petitioner's allegation that his date of birth was not recorded on the basis of his representation but on the basis of the estimate made by the Civil Surgeon. An estimate is at best a guess or surmise. It is not accurate. There is scope of variation. In the present case the difference in age asserted by the petitioner and by the opposite parties is only of 11/2 years. This is easily coverable by the variation scope. Therefore, no finality can be attached to the estimate made by the Civil Surgeon. As against the estimate of the Civil Surgeon, very reliable evidence of the age is the letter of the Board, Annexure 4. The Tribunal's order does not refer to it although it refers to the transfer certificate issued on behalf of the institution at which the petitioner had studied and to the extract from the Scholar's Register. It may not be possible to attach much authenticity to these documents as they come from the custody of private institutions but the same cannot be said about Annexure 4. 14. In view of the above while upholding the vires of Rule 2,1 am of the opinion that on the facts of the present case the opposite parties should have determined the petitioner's age of superannuation with reference to his date of birth mentioned in Annexure 4.;