ASOPA, J. - (1.) BY this writ petition, the petitioner has challenged the order dated 17-1-2004 whereby the date of birth of the petitioner has been held 30 years on 7-3-1976 on the basis of medical certificate and he has been ordered to be superannuated on 31-3-2004. The petitioner has also prayed that the respondents be directed to accept the date of birth as given in the school leaving certificate, which is 2-1-1950 for the purpose of retirement.
(2.) THE facts, in brief of the case, as per petitioner, are that the petitioner war, appointed as Helper in the erstwhile Rajasthan State Board on 6-10-1968 and his ago was entered as 18- 1/2 years. in the, year 1984, the petitioner was asked to produce any proof of his age and he produced his school leaving certificate. On 17-1-2004, the respondents informed the petitioner that his date of birth has been accepted on the basis of medical certificate dated 7-3-1976 wherein it has been shown as 30 years (annexure-R/2 ). It has also been mentioned in the said certificate that the, further Radiolognial examination is required for confirmation, but it appears that the said test has not been undertaken. On the basis of certificate dated 7-3-1976 the date of birth of petitioner is calculated then the same would be 7-3-1946. It is stated in the writ petition that there is no reason not to believe the school leaving certificate and mention of which has also not been made in the impugned order dated 17-1-2004. It is also stated by the petitioner that the said school certificate was produced in compliance of the order of the respondents dated 17-1-1984 whereby he was asked to submit the date of birth document i. e. educational qualification, municipality date of birth certificate or medical jurist certificate. The respondents have filed reply to the writ petition and stated therein that in the cheek form, the age of the petitioner was found 20 years as on 1968 and there appears to be some over- writing, otherwise it is 25 years. The respondents have further stated that no educational qualification has been mentioned in the check form, therefore, school leaving certificate is highly doubtful and the medical certificate further revealed that he was not 18 years of age at the time of entry into service. Submission of Mr. P. K. Sharma, counsel for the petitioner is that school leaving certificate is authentic proof of age and had medical certificate of the year 1976 been accepted then there would have no need to ask for proof of age, in the year 1984. Even otherwise also, the school leaving certificate carries much weight than the medical certificate and. further in case of medical examination, the age is based on estimation, there would be difference in the age. The confirmation test referred in medical certificate was not held, therefore, it would not have been relied. Counsel for the respondents submits that there was no over- writing in the form and no educational qualification was mentioned in the form, therefore, said school leaving certificate was not considered, the only reliable document with them was the medical certificate, therefore, they were left with no alternative except to accept the same. Heard counsel for the parties and gone through the record of writ petition and further considered rival submissions of the parties.
(3.) THIS Court in para 16 of the judgment delivered in case of Rajan & Ors. vs. State of Rajasthan - 2002 Crl. L. J. 3152 has held that school certificate would be taken into consideration while determining the age and not the medical certificate as it is based on estimate and possibility of error, cannot be ruled out. Para 16 of the said judgment is as follows:-      " 16. In the present case, the alleged incident took place on 18-3-2000 and the date of birth of the prosecutrix PW2 Pinky is 16-10-1986 and thus, on the date of occurrence, her age was about 13 years 5 months and on the contrary, the doctor opined in the Certificate Ex. D/3 that on the date of occurrence, she was between 16 to 17 years. In my considered opinion since school certificates of the prosecutrix PW-2 are available in the present case, therefore, school certificates. would be taken into consideration while determining her age and not the medical certificate as it is based on estimate and possibility of error cannot be rules out. " The Supreme Court in a judgment delivered in case of Ravinder Singh Gorkhi vs. State of U. P.- (2006) 5 SCC 584 while considering the scope of Section 35 of the Evidence Act has held that determination of date of birth of a person before a Court of law whether any civil proceeding or criminal proceeding, the provisions of Section 35 of Evidence Act will apply. Here in the instant case, the department is considering the issue of age, therefore, the said strict principle of law of Section 35 of Evidence Act would not be attracted and the same is to be decided on the basis of genuineness of the document. The school leaving certificate in this particular case is on record and further the medical certificate is also on record, but in view of the judgment of this Court in case of Rajan & Ors. (supra), the school leaving certificate carries more weight. ;