Smt. ROSHAN DALVI, J.:-

Rule returnable forthwith, as the affidavit of the Respondents is filed and the copies of documents relied upon by the Petitioner as well as the Respondents have been produced in Court.

2. The Petitioner's date of birth IS an issue in this Petition. It is contended by her that she was born on 2nd October, 1950. It is contended by the Respondents that she was born on 2nd October, 1948. The Petitioner has produced and the Respondents have considered the documentary evidence with regard to this date. The Respondents have passed order dated 26th December, 2007 with regard to her date of birth which has been impugned in this Petition.

3, The Petitioner joined the Respondents' service initially as a Clerk-cum-Typist on 18th January, 1971. She contends that she informed Respondent No.1 at the time of joining her service that she was born on 2nd October, 1950. She has filled up a form which is a part of her service record. That form shows her date of birth as 2nd October, 1948 corrected to 2nd October, 1950. The form is type written, correction is handwritten. It is by way of interpolation in the year. Both the parties have relied upon the same document in support of their respective contentions.

4, Consequent upon the said form filled by the Petitioner, which is a part of her service record, her gradation list, seniority list, retirement list etc came to be prepared. These documents would naturally have the same date.

5. It appears that due to the interpolation in the year, the first Respondents called upon the Petitioner to furnish true copies of the documents to show her date of birth. There has been some correspondence on this aspect, with which we are not concerned. The Petitioner has to prove her date of birth when called upon. She has to essentially prove this through public record. That is the record of births and deaths maintained by the Municipal Authority within the limits of whose jurisdiction the Petitioner was born i.e. Panvel Nagar Parishad in the case of the Petitioner. The Petitioner has obtained her birth certificate issued by Panvel Nagar Parishad. It shows her birth date as recorded in the register of births maintained by the Parishad as 2nd October, 1950. The birth certificate is the certified copy of the extract of a public document under Section 77 of the Indian Evidence Act, 1872 (Evidence Act). Such certified copy can be produced in proof of the contents of the public document of which it purports to be a copy. Consequently under Section 79 of the Evidence Act it carries a presumption as to its genuineness and is accordingly admissible in evidence. Under Section 79, the Court is therefore, also required to presume that the Officer by whom such document is purported to be signed as certified held the official character which is claimed in the document.

6. It is, therefore, clear that for proof of the date of birth the certified copy of the birth certificate issued by the relevant Municipal Authority is the ultimate document. The presumption under the law would hold good until it is rebutted.

7. The party who seeks to rebut it has the onus to prove that such a document is not genuine. That is what is sought to be done in this case under the impugned order.

8. The Register of the Parishad shows an entry of the birth of the Petitioner to have been made on the date of her birth itself. It is reasoned in the impugned order that the handwriting in the register showing her date of birth on the same date that she was born is different from the handwriting showing her name. It is common knowledge that names of children are given after birth. Hence in the register despite the fact that an entry of birth is made, the name may be entered later. Such fact itself cannot rebut the legal presumption. In fact the challenge is to the original record itself. It is, therefore, not strictly in rebuttal of the legal presumption.

9. The Petitioner in this case has not only relied upon the birth cert

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