JUDGMENT :

Suneet Kumar, J.

1. Heard and perused the record.

2. The instant writ petition is directed against the notice dated 2 June 2007 requiring the petitioner to retire from service treating his date of birth as 13 November 1947, and the order dated 3 September 2007 passed by the third respondent-Nagar Swasthya Adhikari, Nagar Nigam, Agra, rejecting the representation of the petitioner seeking correction his date of birth as 26 May 1953.

3. The petitioner was appointed Beldar/Sweeper on 1 June 1972. As per the case setup by the petitioner, the date of birth recorded in the service book, at the time of appointment was 26 May 1953. It is not in dispute that the petitioner at the time of appointment/joining was not High School. It appears that the service book of the petitioner came to be lost, thereafter, a new service book came to be reconstituted, but while doing so, it is alleged that the date of birth was entered as 13 November 1947 in the service book. A certificate issued by the Chief Medical-Officer dated 13 November 2001 was the basis for altering the date of birth of the petitioner. Consequently, petitioner came to be retired on 30 November 2007 instead of May, 2013.

4. The case of the petitioner is that the petitioner was wrongly retired, whereas the petitioner was entitled to continue in service till 31 May 2013 treating his date of birth as 26 May 1953 which was duly recorded in the service book at the time of joining service. Learned counsel for the petitioner has made the following submissions:

(i) that the petitioner at the time of appointment was not High School, therefore, in view of Rule 2 of U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 (in short ‘Rules, 1974’) the entry recorded in the Service Book, shall be deemed to be his correct date of birth for all purposes in relation to his service.

(ii) all the relevant documents of the respondent, Nagar Nigam, Agra unequivocally records the date of birth of the petitioner as 26 May 1953.

(iii) it is not open to the respondent to have recorded another date of birth as late as 2001, after obtaining an opinion from the Chief Medical Officer.

5. In the counter-affidavit filed on behalf of respondent Nos. 2 and 3, the facts are not being disputed. It is urged that the date of birth of the petitioner at the time of joining of service was recorded as 13 November 1947; in 1990, the petitioner appeared in Junior High School, the marks-sheet records the date of birth of the petitioner as 8 October 1953, consequently, to remove the doubt regarding his date of birth petitioner was subjected to medical examination before the Chief Medical Officer, Agra on 13 November 2001 who certified the approximate age of the petitioner at 54 years, consequently, the date of birth of the petitioner was recorded as 13 November 1947.

6. The facts inter se parties are not in dispute. It is admitted that the petitioner joined on 1 June 1972 and it is the specific case of the petitioner that the date of birth was recorded as 26 May 1953. In paragraph 6 and 7, it has been categorically stated that the initial service book of the petitioner on having been lost, the new service book was reconstructed in 2001 and thereafter the date of birth was wrongly entered. Paragraph Nos. 7 and 8 of the writ petition reads thus:

"(7) That at the time of joining in service of the petitioner the date of birth of the petitioner was determined as 26.5.1953 in service records and the same date of birth was also recorded in the papers of group insurance scheme of the petitioner which is being deducted from very beginning. The date of birth of the petitioner is also mentioned as 26.5.1953 in Form of Leave Account. A Photostat copy of the Form of Leave Account is being filed herewith as Annexure 3 to this writ petition.

(8) That it is stated that the service book of the petitioner had been lost in department therefore a new service book was prepared by the department in the year 2001 on the basis of