By the Court.—Heard learned Standing Counsel for the respondents-appellants and Sri Ram Mohan, learned Counsel for the respondent.

2. With the consent of the parties, this special appeal is being disposed of at this stage without calling for any counter affidavit specifically in view of the order proposed to be passed today.

3. This is an intra Court appeal against the judgment and order passed by the learned Single Judge dated 20th December, 2007, whereby the writ petition filed by the respondent has been allowed and the impugned notice dated 17th April, 2003 has been quashed holding that the petitioner is entitled to continue in service and to receive salary treating his date of birth as 31st May, 1995, it has also been provided that he would be entitled to his retiral benefits on that basis. State of U.P., not being satisfied by the direction so issued, has filed this appeal.

4. The brief facts necessary for deciding the special appeal are that the writ petitioner was initially appointed as a Tabulator on 7th February, 1967 in the Consolidation Department and subsequently he was granted promotions on next higher posts. While working as Lekhpal, he was retired treating his date of birth as 3rd December, 1943. This led to the filing of the writ petition No. 38857 of 2003, which has been allowed as indicated above.

5. The case of the petitioner was that on receipt of the notice of retirement, he came to know that his date of birth had been wrongly recorded as 3rd December, 1943 in place of 31st May, 1945 in his service book and on that basis the respondents were going to retire him after completion of 58 years’ service. He made an application on 13th October, 2001 before the District Deputy Director of Consolidation for correction of his date of birth as 31st May, 1945, as per the High School Certificate. On the directions of the District Deputy Director of Consolidation, a letter was written to the Settlement Officer Consolidation, Azamgarh on 22nd December, 2001 for clarification qua the date of birth of the petitioner as recorded in his service book. After various verifications, the Settlement Officer Consolidation, Maharajganj submitted his report on 7th March, 2002 stating therein that the correct date of birth of the petitioner was 31st May, 1945 and he accordingly sent a letter to the Consolidation Commissioner U.P. Lucknow dated 16th August, 2002 for approval of the correction of the date of birth of the petitioner as 31st May, 1945 in place of 3rd December, 1943. Subsequently an order was passed by the Consolidation Commissioner, U.P. Lucknow dated 17th April, 2003. The Consolidation Commissioner took the view that date of birth of the petitioner-respondent as recorded in the service book is 3rd December, 1943 be accepted as correct date of birth. Against the said order of the Consolidation Commissioner, writ petition No. 38857 of 2003; Krishna Murari Lal v. State of U.P. and others.

6. The learned Single Judge summoned the original service book, G.P.F. Papers and the seniority list etc. vide order dated 14th August, 2007. The learned Single Judge after examination of records held that initially the date of birth of the petitioner was entered as 3rd December, 1943 in the service book, subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. The learned Single Judge while allowing the writ petition has observed as follows :

“In pursuance thereof, the records have been produced and it transpires that though earlier his date of birth was entered as 3.12.1943 in the service book, subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. In the seniority list and also in the G.P.F. papers the same date of birth is reflected. It is also not disputed that the petitioner had appeared in the High School Examination prior to joining the service where his date of birth is also entered as 31.5.1945, therefore, the contention of the learned Stan