JUDGMENT : S.A. Shah, J. The appellant (original plaintiff) filed a suit, being Special Civil Suit No. 68 of 1974, in the Court of the learned civil Judge, Senior Division, Baroda, for a declaration that the action of respondent-defendant State Government to retire the plaintiff as from 6-9-1972 was illegal, unauthorised and void and in violation of the principles of natural justice, because the plaintiff had a right to continue on the post up to 17-10-1974. He also prayed for a mandatory injunction directing the defendant-State Government to treat him in service till 17-2-1974, and in the alternative he prayed for a decree for Rs. 13,949/-, being the emoluments which he would have received if he had continued on the said post till 16-10-1974. 2. The facts of the case are, that the plaintiff joined the services of the erstwhile Baroda State as a Constable in the State Police Force on 6-9-1934 after having passed his matriculation examination in Amritsar District. Since he had no birth-certificate with him at the time of his recruitment, his age was noted as 20 years, and the State Government has come out with the case that the date of birth of the plaintiff entered in his service book was 6-9-1914, which appears to have been fixed by deducting 20 years from the date when he joined the service. It is the case of the plaintiff that he had no birth-certificate with him at that time. Thereafter he was selected in a post belonging to the Personal Department of the Ruler of the Baroda State. The said Department was known as `the Khangi Department' (private department). According to the plaintiff, he produced his Birth Certificate on 1-10-1935 when he joined the Private Department of the erstwhile State of Baroda. On the strength of the said Birth Certificate, his birth date was noted in the records of the then Baroda State as 17-10-1916, and he was given the service book by the said State. Initially on the basis of the Birth Certificate date 22-10-1916 was entered in the second service book, but that was a mistake because 22-10-1916 was the date when the information was given to the officer who maintained the Register of Births and Deaths and, therefore, that date was corrected to 17-10-1916. Initially on the basis of the Birth Certificate date 22-10-1916 was entered in the second service book, but that was a mistake because 22-10-1916 was the date when the information was given to the officer who maintained the Register of Births and Deaths and, therefore, that date was corrected to 17-10-1916. Since his services were transferred to the bilingual state of Bombay on the merger of the State of Baroda, he continued to be in service of the Bombay State and thereafter on bifurcation of the State of Bombay, his services were allocated to the State of Gujarat. His second service book (described by the learned trial Judge in his judgment as `the duplicate service book') was returned to him in year 1966. According to the plaintiff he had no knowledge that in the service book which was in possession of the State Government the date of his birth mentioned was 6-9-1914, and the same was not changed in year 1935 when he produced his Birth Certificate before the concerned officer of the Private Department of the erstwhile Bombay State, it is further contended by the plaintiff that during his tenure as a Police Constable and thereafter as Police Sub-Inspector and Police Inspector, gradation lists were published from time to time by the respective State Governments. At that time the age of superannuation was 55 years, and in the column showing the date of superannuation, it was notified that he was due to retire on 17-10-1971. He has further contended that when he received the intimation from the Accountant General's Office that he was completing 58 years of age on 6-9-1972, he for the first time came to know that there was some discrepancy or fallacy in respect of his birth date. He, therefore, made a representation to the office of the Accountant General stating that his Birth date is 17-10-1916, and he is due to retire not in 1972 but in 1974. 3. The plaintiff appears to have produced some evidence to convince the office of the Accountant General. The plaintiff has very strongly relied upon the letter dated 2-4-1973, Ex. He, therefore, made a representation to the office of the Accountant General stating that his Birth date is 17-10-1916, and he is due to retire not in 1972 but in 1974. 3. The plaintiff appears to have produced some evidence to convince the office of the Accountant General. The plaintiff has very strongly relied upon the letter dated 2-4-1973, Ex. 23, written by the office of the Senior Deputy Accountant General, Gujarat, to the Under Secretary to the Government of Gujarat, the material portion of which reads : "The date of Birth of Shri Sandhu as recorded in the records of this office is 6-9-1914 as already intimated to the inspector General of Police as well as to Government. Accordingly that date was reported by this office as the date of superannuation and he was made to retire on 6-9-1972 on reaching the age of superannuation. The Accountant General, Ahmedabad, has, however, since intimated that Shri Sandhu should retire from service on 17-10-1974 only (taking his date of birth as 17-10-1916) as verified from his original Service Book. I shall be thankful if you can kindly arrange for a verification of the correct date of birth of Shri Sandhu and intimate us the correct position. His original Service Book may also please be sent to this office for verification." (Emphasis supplied). In support of his contention the plaintiff has also produced the second service book at Ex. 27, written and maintained by the concerned authority of the then State of Baroda. The said service book shows the date of birth of the plaintiff as 22-10-1916, and thereafter figure `22' is scored off by pencil and below it figure `17' is written (i.e. 17-10-1916). This service book appears to have been prepared and maintained on and from 29/30-11-1935 by Kapdi Jamdar Khata, as seen from the last two pages of the said Service Book. It was written and maintained by the authority of the then Baroda State, and it bears the signatures of the concerned officers from time to time. This is not a duplicate Service Book, as has been observed by the learned trial Judge. From column No. 7 of the said Service Book Ex. 27, it appears that the date of commencement of service written is 1-10-1935. This Service Book does not refer to anything in regard to the previous service of the plaintiff or his previous Service Book. From column No. 7 of the said Service Book Ex. 27, it appears that the date of commencement of service written is 1-10-1935. This Service Book does not refer to anything in regard to the previous service of the plaintiff or his previous Service Book. 4. The State Government (respondent-defendant) has filed its written statement at Ex. 10, and has in general denied the statements made by the plaintiff. In para 5 of the written statement it is contended that the Doctor had certified the plaintiff to be 20 years old when the plaintiff appeared before the Medical Officer, and on the strength of the said medical opinion, the birth date of the plaintiff was reasonably calculated and arrived at as 6-9-1914 in absence of any reliable documentary evidence about the birth date. 5. The learned trial Judge has dismissed the suit of the plaintiff mainly on two grounds, viz. (1) At the time of recruitment the plaintiff himself had supplied the information about his age so that he could be recruited and, therefore, he is not entitled to resile from that position, and (2) The plaintiff himself had tried to get his date of birth changed to 15-11-1918 on the strength of his matriculation examination certificate, and since his demand was not accepted, he did not pursue the matter further. In view of this, the learned trial Judge came to the conclusion that the plaintiff has failed to prove that his Birth Date as 6-10-1914 was inserted by somebody in his service book by mischief or mistake and, therefore, the birth date 6-10-1914 noted in the service book must prevail for the purpose of superannuation. Being aggrieved by the said findings of the learned trial Judge, the plaintiff has filed this appeal. 6. Miss A. A. Mehta (for Mr. H. B. Shah), learned Advocate for the appellant-plaintiff, has raised the following contentions : (1) The Birth Date appears to have been subsequently recorded in the first Service Book without the knowledge of the plaintiff on the basis of the Medical Certificate, and the State is not able to prove that the said date was entered in the Service Book with the consent or to the knowledge of the plaintiff. (2) The Second Service Book Ex. (2) The Second Service Book Ex. 27, is also the Service Book written and maintained by the then Baroda State after the first Service Book and, therefore, if the birth date 22/17-10-1916 is written, it necessarily follows that the date first written was cancelled and the correct date based upon the Birth Certificate was entered by the Baroda State subsequently, and that is binding to the defendant-State. (3-4) The defendant-State has failed to establish that the plaintiff had the knowledge till he received the communication from the office of the Accountant General that his birth date was not 17-10-1916 but was 6-9-1914. (5) The defendant-State has not examined any witness to substantiate its case and, therefore, the case of the plaintiff remains un-controverted, and in the circumstances adverse inference must be drawn against the defendant-State. 7. The first question that requires to be considered is, what is the date of birth of the plaintiff. It is, no doubt, true that the first Service Book mentions the date of birth of the plaintiff as 6-9-1914, which is admittedly based on the fact that the same was written by deducting 20 years from the date of his recruitment in service in the then Baroda State, and according to the written statement of the defendant-State it is based upon the medical opinion. No medical certificate has been produced by the State Government nor the service book mentions that there was any such medical certificate issued by the Doctor. Mr. M. H. Kadri, learned Assistant Government Pleader, appearing for the respondent-State has vehementaly contended that the plaintiff himself has admitted this fact, and for that he relies on the following averments made by the plaintiff in para 2 of the plaint : When the plaintiff came to Baroda, for joining he had not with him birth certificate. The doctor had, therefore, noted him to be 20 years old and that was a note made in his service book meant for a constable." No doubt, there is an averment that at the relevant time the plaintiff appeared to be 20 years old to the Doctor, but the plaintiff has not admitted that there was any such certificate issued by the doctor, or that his date of birth was recorded as 6-9-1914 in his service book. If we closely refer to the plaintiffs deposition Ex. If we closely refer to the plaintiffs deposition Ex. 39, in para 3 he has stated that he joined the service on 6-9-1934, and at that time he had not produced the Birth Certificate as it was not with him. He has further stated that his service book of 1934 is not produced. In 1935 he was transferred to the Personal Staff of the Maharaja. A new service book was kept there. His age, when he joined, was written as 20 years in service record without asking him. His birth date was not written at that time. He had produced his birth date certificate in Huzur Personal Department and his birth date was recorded as 17-10-1916. He has in terms stated that his birth date was so recorded on 1-10-1935 in the record, and that formerly the birth date 22-10-1916 was written, but as that was the date of information and the correct date of birth was 17-10-1916, necessary correction was made in the service book. Unfortunately, there is no effective cross-examination on this point. 8. Plaintiff has also examined as his witness one Khanderao Amratrao Shinde at Ex. 62, who was also at the relevant time serving in the Personal Private Department of the then Baroda State. This witness Khanderao has stated that the plaintiff was transferred from the Police Department to the Personal Private Department, and in that Personal Department service book was kept afresh. This witness was serving as barnishi Clerk. He was shown the service book of the plaintiff, and he identified the hand writings of the officers who made entries therein. 9. Though the State Government has not examined any witness, tenor of the cross-examination of the plaintiff and his witness does not suggest that Service Book Ex. 27 is not a genuine document. Mr. Kadri, learned Assistant Government Pleader, does not challenge the Service Book Ex. 27, which appears to have been written afresh, and the birth date mentioned therein, recorded on the basis of the Birth Certificate produced by the plaintiff in year 1935. 10. In this case there are two service books of the same person (i.e. the plaintiff). First Service Book, Ex. 60, appears to have been produced subsequently by application dated 24-4-1975 Ex. 58, along with list of documents Ex. 59. 10. In this case there are two service books of the same person (i.e. the plaintiff). First Service Book, Ex. 60, appears to have been produced subsequently by application dated 24-4-1975 Ex. 58, along with list of documents Ex. 59. On the said list the Advocate for the plaintiff has made the following remarks : The date on the service book is written afterwards and by some unknown person. We do not admit the same. The rest of the service book may be exhibited." The said service book (Ex. 60) is completely in torn condition and is also not readable. A piece of the said service book regarding the birth date is shown to me by Mr. Kadri, which shows the date of birth as 6-9-1914. Looking to the said piece of the Service Book, it appears to me that the initial portion is written with black ink and in broad lines by one person, and the portion mentioning the date of birth is written with different ink in thin lines by some other person. The year is written in English and other particulars are written in Hindi. The date of superannuation is written in red ink in English by a third person. The date is not obviously admitted by the plaintiff. No question is asked to him regarding it, nor the same was shown to him. No witness is examined by the defendant-State to prove as to who had written the date or whether the said date was written at that very time or subsequently. It appears to me that when the plaintiff was recruited on 6-9-1934 all the particulars were written, but since he had no Birth Certificate with him at that time, his age was treated as 20 years and thereafter the date might have been written subsequently after some consultation with higher officers. However, there is no evidence to this effect and, therefore, there is a probability that the plaintiff might not be in the know that his birth date is written as 6-9-1914 taking his age to be 20 years on the date of his recruitment. It is an admitted position that that date is not based upon any document, but is merely based on the opinion of the doctor. 11. It is an admitted position that that date is not based upon any document, but is merely based on the opinion of the doctor. 11. Assuming for the sake of argument that originally the birth date was written as 6-9-1914, the plaintiff has a right to get it changed by production of material document, and in fact he had produced the material document, that is, the Birth Certificate, on 1-10-1935, and relying upon the said Certificate the then Baroda State initially entered the plaintiff's birth date in his service book as 22-10-1916, and then corrected it as 17-10-1916. If there are two service books, and the Birth Date in the former is written on the basis of information and in the later on the basis of the Birth Certificate, in my opinion, the subsequent service book is the only document which can be relied upon by the Court. The birth date mentioned in Service Book Ex. 27 is based upon the actual documentary evidence in accordance with rule 171 of the Bombay Civil Service Rules, and unless it has been shown that the date of birth entered in the said Service Book was entered through mistake or fraudulently, the defendant-State cannot deny the plaintiff to rely upon the date of his birth noted in his Service Book Ex. 27 on the basis of the Birth Certificate produced by him at the relevant time. It is, therefore, not necessary to decide whether the Birth date of the plaintiff in the former Service Book was written simultaneously or subsequently, because in both the cases it has lost its importance by admission of the then State of Baroda that the birth date of the plaintiff was 17-10-1916 and not 6-9-1914. 12. Apart from the aforesaid evidence, there is also other evidence which indicates that the State of Bombay and the State of Gujarat have not only accepted that 17-10-1916 is the birth date of the plaintiff, but they have also fixed the date of retirement of the plaintiff in all the gradation lists which have been published with effect from 1-1-1950 till the plaintiff retired. These Gradation Lists have been produced and exhibited at Ex. 20. It is with effect from 1-1-1950. At serial No. 51 on page 269 of the Gradation List of State Officers Absorbed as Police Sub-Inspectors, name of the plaintiff is shown. These Gradation Lists have been produced and exhibited at Ex. 20. It is with effect from 1-1-1950. At serial No. 51 on page 269 of the Gradation List of State Officers Absorbed as Police Sub-Inspectors, name of the plaintiff is shown. His date of attaining the age of 55 years is shown as 17-10-1971, i.e. his Birth Date is taken as 17-10-1916. At Ex. 28 Gradation List as on 1-1-1951 is produced, and therein at serial No. 46 name of the plaintiff appears. In this list also his date of attaining 55 years is shown as 17-10-1971. Similar is the position in Gradation Lists Exs. 29,30, 31,32, 33,35 and 36. All these are the Gradation Lists published by the Officers of the erstwhile State of Bombay. Then there is Gradation List Ex. 37 showing the position as on 1-1-1962. In this list the name of plaintiff is shown at serial number 70. It is public had by the State of Gujarat. The date of attaining retirement shown therein is 7-10-1971. In Ex. 37, there are also extracts of two other Gradation Lists published by the Gujarat Government showing the position on 1-1-1968 and 1-1-1971. Therein also the date of attaining the age of 55 years by the plaintiff is shown as 7-10-1971. No doubt, there is some discrepancy regarding the date of attaining 55 years of age; instead of 17-10-1971 it is mentioned as 7-10-1971. But that makes a little difference. Why this date has been shown in the gradation lists right from 1950 to 1971 is not explained by the defendant-State in its written statement. On the contrary, it has been stated in para 10 of the written-statement that the date of birth stated in the lists of the Public State Officers could not outweigh and nullify the original birth date recorded in the original service book and could not be treated as incorrect merely because some other subsequent records might show different dates. In my opinion, this is hardly an answer. Civil Lists and Gradation Lists are important documents which show that till year 1971 the Officers who prepared the said lists have relied upon the second service book Ex. 27, and not the first service book Ex. 60. In my opinion, this is hardly an answer. Civil Lists and Gradation Lists are important documents which show that till year 1971 the Officers who prepared the said lists have relied upon the second service book Ex. 27, and not the first service book Ex. 60. The plaintiff has also produced the Insurance Certificate issued by the Insurance Corporation run by the State, and from that also it appears that the date 22-10-1916 was changed to 17-10-1916 as the birth date of the plaintiff. 13. The most important circumstance in favour of the plaintiff is that the plaintiff was never aware of his birth date recorded in the first Service Book. The learned trial Judge has relied upon the signature in column 8 of the first Service Book. But that is explained by Miss Mehta by saying that when the plaintiff was recruited on 6-9-1934, his signature was taken because he could not give the exact date of his birth, but subsequently without the knowledge of the plaintiff, irrational date has been noted, either on the opinion of the doctor, or by the officer concerned without consultation with the plaintiff. I think, there is much substance in this say of Miss Mehta. Plaintiff is not asked any question in his cross-examination in this behalf. He has not admitted his birth date mentioned in the First Service Book. He has categorically stated in his deposition that he was never informed that his birth date recorded in the first service book was 6-9-1914. In para 27 of his cross-examination he has stated : It is not true that my birth date was stated to be and written as 6-9-1914 when I first joined service". In para 32 he has stated : ...... It is not true that my birth date was originally entered as 6-9-1914 in my service book. I was not knowing that my birth date in A. G.'s office was as 6-9-1914." In para 34 he has stated : ......I received the duplicate service book Ex. 27 in 1966." This statement of the plaintiff that he received the Service Book Ex. 27 in 1966 from the State Government is brought out in his cross-examination. It is, therefore, evident that since the plaintiff had no knowledge regarding his birth date entered in the first service book, and when he was supplied the second service book Ex. 27 in 1966." This statement of the plaintiff that he received the Service Book Ex. 27 in 1966 from the State Government is brought out in his cross-examination. It is, therefore, evident that since the plaintiff had no knowledge regarding his birth date entered in the first service book, and when he was supplied the second service book Ex. 27 in year 1966 which contained the correct birth date, and when consistently the gradation lists mentioned his date of attaining 55 years of age on the basis of that birth date, he had no reason or occasion to make any representation or application to the State Government. 14. There is also one factual aspect that escaped the notice of the learned Trial Judge. The plaintiff in para 36 of his deposition has stated that he had two brothers. He was younger one. His elder brother was 2 to 2½ years elder than him. Therefore, the Birth Certificate which has been produced by the plaintiff cannot be that of his brother who is elder in age. 15. In the instant case, the defendant-State has not examined any witness. The decision of the State Government and the Inspector General of Police rejecting the representation of the plaintiff mentions no reason and, therefore, it is not possible to know as to how the authorities arrived at this conclusion. Since no officer has stepped into the witness-box either to prove the original birth date of the plaintiff or to explain the date mentioned in the gradation lists published from time to time by both the Governments, viz. the Bombay State and the Gujarat State, it can be assumed that there was no answer with the defendant-State and, therefore, this is a fit case where adverse inference should be drawn. 16. The learned trial Judge has relied upon the statement made by the plaintiff before the recruiting authority that he was 20 years old to enable him to be recruited as a Constable. No doubt, the plaintiff had the motive to give the wrong age. But the plaintiff has stated that the recruitment age was 18 years, and on 6-9-1934 he was running 18th year of his age. The plaintiff could have stated that he was more than 18 years. But as we know, in small villages till the occasion arises, nobody bothers about the real date of birth. But the plaintiff has stated that the recruitment age was 18 years, and on 6-9-1934 he was running 18th year of his age. The plaintiff could have stated that he was more than 18 years. But as we know, in small villages till the occasion arises, nobody bothers about the real date of birth. The plaintiff might have been told by his parents that he was 20 years old and he might have possibly made that statement. However, that does not mean that the plaintiff should be estopped from producing his Birth Certificate showing his correct age. It could have been possible for the then Baroda State, when he mentioned his incorrect age, to take departmental proceedings against him and remove him from service, if they so desired. But the Baroda State had accepted his Birth Certificate and his birth date as 22/17-10-1916. Therefore, from this mis-representation of the plaintiff for the purpose of being recruited has no effect on the validity of the claim of the plaintiff. 17. The second point which appealed to the learned trial Judge was that the plaintiff himself tried to get his birth date changed to 15-11-1918 on the basis of his matriculation examination certificate, and realising his difficulty, he did not persue the same further. No doubt, the plaintiff had tried to get benefit of his birth date mentioned in his Matriculation Examination Certificate, but since he did not persue the same any further, such a circumstance cannot dis-entitle him from not putting forth his claim on the basis of his birth-date accepted by the defendant-State till 1971. The State has not produced the application of the plaintiff whether he wanted to change the date from 17-10-1916 or from 6-9-1914. Had that application been produced by the State Government, it would have been helpful in deciding the merits of the case. The defendant-State has merely relied upon the admission of the plaintiff that he did make such application. 18. The observation of the learned trial Judge that the plaintiff has failed to prove that his birth date 6-9-1914 was inserted by somebody in his service book by mischief or mistake, is also not justified. It is the case of the plaintiff that he never knew that Government had recorded his birth date as 6-9-1914, because his new service book Ex. It is the case of the plaintiff that he never knew that Government had recorded his birth date as 6-9-1914, because his new service book Ex. 27, contained the correct date and thereafter in the gradation lists published from time to time correct date was mentioned by the Government Service Book Ex. 60 was produced subsequently. It was not shown to the plaintiff during his deposition. The contents of that service book have not been admitted by the plaintiff. The piece of that service book regarding the birth date of the plaintiff shown to me definitely creates some suspicion, and it is possible that that date might have been entered subsequently by mistake. Medical Certificate is also not produced by the defendant-State, so much so, that even no witness is examined. In these circumstances, the learned trial Judge was not justified in saying that the plaintiff has failed to prove the birth date. In my opinion, the birth date of the plaintiff recorded in Service Book Ex. 27 in year 1935 by the then State of Baroda being based upon the Birth Certificate produced by the plaintiff, and thereafter consistently the respective Governments having accepted that birth date to be correct by showing his date of retirement in year 1971 in the Gradation lists (as the age of superannuation at that time was 55 years), burden was on the defendant-State to show that the date of birth of the plaintiff was not 17-10-1916 but was 6-9-1914. On the other hand, the plaintiff has led sufficient evidence to show that his correct birth date was 17-10-1916 and, therefore, he was entitled to be continued in service till 16-10-1974 (i.e. till he completed 58 years of age), and the decision of the defendant-State to retire him two years earlier is obviously arbitrary, illegal and void. In view of the aforesaid findings, the decision of the learned trial Judge will have to be set aside and the suit of the plaintiff will have to be decreed. 19. Since the plaintiff has already reached the age of superannuation, it is not possible to reinstate him in service and, therefore, he is entitled to all the benefits of service as if he was in actual service till the date of his superannuation, i.e. 16-10-1974. The plaintiff will, therefore, be entitled to all the salary and wages and other benefits available to him. 20. The plaintiff will, therefore, be entitled to all the salary and wages and other benefits available to him. 20. Practically there is no dispute so far as the amount of Rs. 13,949/- mentioned by the plaintiff in para 22 of the plaint is concerned. This amount consists of salary with D.A., etc. The plaintiff will, therefore, be entitled to the said amount. 21. Since the plaintiff has not claimed any interest from the date of accrual of service till the date of the suit, question of awarding him interest on the aforesaid amount does not arise. However, the plaintiff being entitled to a decree in respect of the accrued salary, etc., which has been wrongly retained by the defendant-State, he will be entitled to interest on that amount at least from the date of the suit till payment. 22. Mr. Kadri, learned Assistant Government Pleader for the defendant-State, submits that the plaintiff has also received pensionary benefits, and if he is found to be entitled to the emoluments, whatever amount received by him by way of pension be deducted. I think there is substance in this contention of Mr. Kadri. Miss Mehta has not objected to this contention of Mr. Kadri. However, we have no figure before us regarding the pension received by the plaintiff, and he having been considered to be in service, he w ill be entitled to the amount of salary, etc. claimed by him in the suit. If the defendant- State has given him pension wrongly, it may recover the same from the plaintiff in accordance with the rules. 23. In the result, the appeal is allowed. The judgment and order of the trial Court are set aside, and it is directed that a decree for Rs. 13,949/- be drawn in favour of the appellant-plaintiff with interest at the rate of 6 per cent, per annum from the date of the suit till payment. The respondent-defendant-State to bear the costs of the appellant plaintiff all throughout. Appeal allowed.