S. H. A. RAZA, J. ( 1 ) FACTUAL matrix, as set out in the writ petition, in short compass, is that in the year 1966, the petitioner was appointed on the post of Typist in the office of the Commissioner, Lucknow division. Lucknow. The mother of the petitioner expired in the year 1943 and his father remarried in the same year. The step mother of the petitioner, at the time of the admission of the petitioner, for the first time in Class V in Shia School, Lucknow, got recorded date of birth of the petitioner as 1. 7. 1937. In the year 1982, the petitioner came to know that his date of birth was wrongly recorded in the Scholar Register as well as in the service record. The petitioner obtained a certificate from the Municipal Board, Lucknow on 3. 3. 1983, according to which his date of birth was mentioned as 1. 7. 1942. ( 2 ) IT has been averred in the supplementary-affidavit that in the year 1983. the petitioner submitted a representation to the Commissioner. Lucknow Division, Lucknow, for the correction of his date of birth in the service record. The Commissioner forwarded the representation of the petitioner along with relevant documents to the Secretary, Government of U. P. , Revenue department. Lucknow, for passing appropriate orders. Even prior to that representation, the petitioner addressed a letter to the Commissioner to write a letter to Chief Medical Officer. Lucknow, to examine him and issue a certificate regarding the age of the petitioner. The Chief medical Officer examined the petitioner on 27. 9. 1984 and gave a certificate to the extent, that at the time of medical examination, the petitioner was aged about 42 years. ( 3 ) ON 1. 9. 1986. petitioner represented to the Secretary, Higher Secondary Education Board, u. P. , which was forwarded by the Commissioner, on 15. 9. 1986. In the said representation, the petitioner stated that the petitioner, who was working as Personal Assistant to the Commissioner, has applied for the correction of his date of birth entered into the High School Certificate. The commissioner also noted that the petitioner in support of his contention that his date of birth was wrongly recorded in the High School Certificate, has submitted strong evidence which appears to be practicable and reasonable. The commissioner also noted that the petitioner in support of his contention that his date of birth was wrongly recorded in the High School Certificate, has submitted strong evidence which appears to be practicable and reasonable. Hence, his application should be considered sympathetically and a decision be taken in that regard. ( 4 ) WHEN no reply was received from the State Government on the representation of the petitioner. which was forwarded by the Commissioner, wife of the petitioner approached the minister for Revenue, U. P. with a representation. The Minister for Revenue, Government of U. P. on 19. 11. 1989, recommended the case of the petitioner for correcting the date of birth, to the chief Minister of U. P. According to the petitioner, the Chief Minister approved the recommendation of the Minister for Revenue, Government of U. P. on 27. 11. 1989. The commissioner sent several letters to the U. P. Government regarding the correction of the date of birth of the petitioner. On 10. 1 1. 1983, the Commissioner again addressed a letter to the Revenue secretary, Government of U. P. , requesting the Secretary, to inform him about the decision taken by the Government. ( 5 ) IT was contended by the petitioner that when in spite of the orders passed by the Minister for revenue, Government of U. P. and the Chief Minister, Government of U. P. , no Government order was issued on the representation of the petitioner, on 27. 5. 1994, the petitioner filed a claim petition in U. P. Public Services Tribunal, Lucknow. Along with the claim petition, the petitioner annexed the following documents in support of his contention that his date of birth was 1. 7. 1942 instead of 1. 7. 1937 before the Tribunal : (1) A-1. Photocopy of certificate of the petitioners date of birth bearing 1. 7. 1942 issued from the nagar Mahapallka, Lucknow. (2) A-2. Photocopy of the petitioners representation addressed to the Commissioner. Lucknow division, Lucknow, along with a photo copy of certificate bearing the date of birth of petitioners father Sri Rahmat Ultah as 15. 8. 1927 issued from Judicial Department of the Secretariat, lucknow. (3) A-3. Photocopy of the letter from Commissioner, Lucknow Division, Lucknow, dated 7. 6. 1983 addressed to the Chief Medical Officer. Lucknow, asking to issue a actual date of birth certificate after proper medical examination. (4) A-4. 8. 1927 issued from Judicial Department of the Secretariat, lucknow. (3) A-3. Photocopy of the letter from Commissioner, Lucknow Division, Lucknow, dated 7. 6. 1983 addressed to the Chief Medical Officer. Lucknow, asking to issue a actual date of birth certificate after proper medical examination. (4) A-4. Photocopy of certificate of actual date of birth of the petitioner from the Chief Medical officer, Lucknow, as 42 years of age on 1984. (5) A-5. Photocopy of D. O. letter No. 987/adhisthan-88 dated 9. 9. 1988 from Commissioner, lucknow Division, Lucknow to the Special Secretary to Government-Appointment Department, u. P. Government. Lucknow, requesting for taking sympathetic consideration and issue favourable orders. (6) A-6. Photocopy of D. O. letter dated 7. 11. 1988 from Commissioner. Lucknow to the Revenue secretary requesting for issue of orders on the representation of the petitioner. (7) A-7. Photocopy of representation of Begum Shahnaz Sheen, petitioners wife addressed to the honble Revenue Minister. U. P. . Lucknow. (8) A-8. Photocopy of letter dated 10. 11. 1983 from Commissioner, Lucknow Division. Lucknow to the Revenue Secretary to Government of U. P. . Lucknow, for issue of orders on the representation of the petitioner. (9) A-9. Photocopy of rulings In 1990 (2) UPLBEC 905, decided by the Full Bench of the honble High Court Allahabad. ( 6 ) IN his representation to the Commissioner, which was annexed with the claim petition, the petitioner averred that her step mother got his date of birth recorded in the scholar register five years above the age of actual date of birth of the petitioner. In support of that contention, he asserted that the father of the petitioner was employed in the Legislative Department of the secretariat and according to the record kept in the Secretariat, he was born on 15. 8. 1927, while the date of birth of the petitioner, recorded as in the service book is 1. 7. 1937, meaning thereby, that there will be difference of only ten years, in between the age of the petitioner and his father. He asserted that the date of birth of the petitioner recorded in the Municipal record is 1. 7. 1942. 8. 1927, while the date of birth of the petitioner, recorded as in the service book is 1. 7. 1937, meaning thereby, that there will be difference of only ten years, in between the age of the petitioner and his father. He asserted that the date of birth of the petitioner recorded in the Municipal record is 1. 7. 1942. The petitioner further submitted that he was married in the year 1974 and at the time of preferring the representation, the age of his elder son was six years, while the age of his elder and younger son was 4 and 1 years respectively. The certificate issued by the Chief Medical officer, Lucknow, who examined the petitioner, dated 27. 9. 1984 discloses that the age of the petitioner was about 42 years on the date of examination. ( 7 ) IT was submitted that only two sons were born to the petitioners father. Petitioner is the elder son who was born on 1. 7. 1942 and younger step brother Sri Akhtar Hussain was born on 3. 1. 1947, who is now employed as Supply Inspector in Civil Supply Department of U. P. According to the gradation list of the Supply Inspectors containing the date of birth of the petitioners step brother is 3. 1. 1947. It was contended that the petitioners father Rahmat Ullah had only two sons and no other issue. The name of the petitioners step brother is Akhtar Husain. The birth certificate certifying the age of the male child of the petitioners father Rahmat Ullah on 1. 7. 1942 issued by the Municipal Authorities pertained to the petitioner and none else. ( 8 ) IN his claim petition before the Tribunal, the petitioner also annexed the letters, which were issued by the Commissioner of the Lucknow Division to the State Government. Besides the letter dated September 9, 1988, there is another letter dated September 9. 1988, in which the commissioner of the Division stated that the matter pertaining to the correction of age of his personal Assistant Maim Ullah has been pending in the Karmik Department. The Commissioner further stated, that Mr. Nairn Ullah in support of his contention had adduced strong evidence and keeping in view, it will be in the interest of justice that the justice should be done to the petitioner. Two other Commissioners, who succeeded the then Commissioners, also expressed the similar view. The Commissioner further stated, that Mr. Nairn Ullah in support of his contention had adduced strong evidence and keeping in view, it will be in the interest of justice that the justice should be done to the petitioner. Two other Commissioners, who succeeded the then Commissioners, also expressed the similar view. ( 9 ) ON November 7, 1988, the Commissioner again addressed a letter to the Revenue Secretary, government of U. P. , in which the Commissioner referred to the law laid down by Honble supreme Court in Surendra Singh v. Divisional Engineer, Telegraph, 1979 SLJ 660 wherein it was observed that where the Government servant had been persistently trying to get the entry in the service record corrected, the State was under a legal duty to consider his case and the plea that the date of birth could not be corrected at the fag end of service was misconceived. The commissioner suggested that before taking any decision in this regard, the Law Department may be consulted, so the petitioner may get complete justice. The Commissioner further approved the earlier recommendation made by his predecessor, and urged the Stale Government to consider the case of the petitioner sympathetically. Again on November 10, 1993 the Commissioner, referred to his earlier letters issued by the predecessor and requested the State Government to consider the representation of the petitioner in consonance with the recommendations and appropriate orders be passed and he should be informed accordingly. ( 10 ) IT was further averred in the claim petition that when in spite of several letters written by the commissioner no reply was received, the petitioners wife who is post graduate, approached the revenue Minister with a representation for redressal of the problems relating to the correction of the date of birth of the petitioner. The Revenue Minister on 19. 11. 1989, after giving patient hearing, summoned the concerned file of the petitioner in her presence and the Minister for revenue recommended the case of the petitioner to the Chief Minister for correction of the date of birth of the petitioner on the basis of the record, which were before him. ( 11 ) THE petitioners wife also sought an interview with the Chief Minister who was pleased to summon the file of the petitioner in her presence and approved the recommendation of the revenue Minister on 27. 11. 1989. in presence of the petitioners wife. ( 11 ) THE petitioners wife also sought an interview with the Chief Minister who was pleased to summon the file of the petitioner in her presence and approved the recommendation of the revenue Minister on 27. 11. 1989. in presence of the petitioners wife. She accordingly informed the Commissioner about the same, but no order of the State Government was communicated to the petitioner, ( 12 ) ACCORDING to the petitioner, the Government was duty bound to enforce the direction of" the chief Minister which the State Government failed to fulfil. The petitioner in his claim petition asserted that in view of the law laid down by Full Bench of the Allahabad High Court in 1990 (2) UPLBEC 905, a writ in the nature of mandamus to a private individual or Public Officer performing public duty, and subordinate to some higher authorities for enforcing the request of the superior officer which is in the nature of direction, can he issued. He also cited the pronouncement of the Division Bench decision of the Lucknow Bench in W. P. No. 124 (MB) of 1994. Pramod Shanker Shukla v. State of U. P. and Ors. where a direction was issued to comply with the orders issued by the superior officers. It was asserted that in similar circumstance, the state Government should comply with the direction of the Revenue Minister/ Chief Minister and issue a Government Order for correction of the date of birth of the petitioner, as the Secretary to the Government of U. P. . Revenue Department, is under legal obligation to enforce the directions of the Revenue Minister and the Chief Minister. ( 13 ) WHEN the claim petition was filed by the petitioner before Public Service Tribunal, from the side of the State Government, an objection was raised about the maintainability of the claim petition, wherein it was indicated that the recommendation made by the then Revenue minister/chief Minister is of no use as no final decision was taken by any authority regarding the correction of the date of birth in the service record of the petitioner, it was submitted that the petitioner has passed his High School examination and the age recorded in the High School certificate was also indicated in the service book of the petitioner as 1. 7. 1937. 7. 1937. which is not open to correction under U. P. Recruitment to Services (Determination of Date of Birth) Rules. 1974. particularly when the petitioner has also made his signatures and thumb impression on his service book. The petitioner cannot take any benefit of the alleged recommendations as no cause of action accrued to the petitioner. The recommendations cannot be termed as a final order passed by the State Government. Against the application for interim relief, which was claimed by the petitioner, opposite parties also filed objection before the Tribunal, wherein it was stated that in accordance with the date of birth entered into the service book, the petitioner was to retire, after attaining the age of 58 years, on 30. 6. 1995. Hence, no interim order can be passed and the claim petition can be disposed of finally after the exchange of the affidavit. It was again reiterated that the alleged recommendations made by the Revenue Minister and the Chief minister cannot be termed as an order of the State Government. In reply to the said objection, the petitioner submitted before the Public Services Tribunal that the Government counsel admitted before the Tribunal on 10. 11. 1994, the file contained the orders of the Chief Minister and he himself pointed out the place where the orders were on the record, hence only thing which remained to be done by the Secretary to the Government was to make the compliance of the orders of the Chief Minister, which was unnecessarily delayed. It was urged that the Tribunal may issue direction to the State Government for passing the orders in consonance with the orders of the Chief Minister. ( 14 ) ON 27. 1. 1995 the Public Services Tribunal admitted the claim petition and the opposite parties were directed to file the counter-affidavit within two weeks from the date of the order. It was also ordered that the petitioner may file rejoinder-affidavit within a week. The Tribunal, on the application for interim relief, passed the following order : "i find that even on the fact that his date of birth recorded in the service book as 1. 9. 1937. he would be retiring in the month of July, 1995. It was also ordered that the petitioner may file rejoinder-affidavit within a week. The Tribunal, on the application for interim relief, passed the following order : "i find that even on the fact that his date of birth recorded in the service book as 1. 9. 1937. he would be retiring in the month of July, 1995. Since the parties have desired for the expeditious disposal of the petition on merit, I am not inclined to allow the interim relief as claimed by the petitioner to the effect that he may be allowed to continue in the service till the date of his superannuation according to the date of birth as claimed by him. However, this prayer of the petitioner can be considered at subsequent stage if the delay in the disposal of the case is caused mainly by the acts of the opposite parties. "put up on 22. 2. 1995 for final hearing. Let records received in sealed cover be returned to the o. P. with a direction that it should be produced again at subsequent stage of hearing of the case. If so required. " ( 15 ) BUT, on 15. 5. 1995, the Tribunal, in view of the fact that a long date had been fixed in the case in the month of July, 1995, expressed a view that the balance of convenience was in favour of the petitioner for accepting his prayer for interim relief. It was directed that the authorities would not retire the petitioner on the date of his superannuation, on the basis of the date of birth as recorded in the service record. Accordingly, an order was issued by the State Government that till final decision of the claim petition, the petitioner will not be retired after attaining the age of 58 years in accordance with the date of birth entered into his service record. ( 16 ) IN the written statement/ counter-affidavit, which was filed on behalf of the opposite parties. It was contended that the case of the petitioner is not identical with the case of Bhagwan Din. In case of Bhagwan Din, there were some manipulations in the record of service for which he has filed writ petition in the Lucknow Bench of the Allahabad High Court and obtained an interim order from the High Court. It was contended that the case of the petitioner is not identical with the case of Bhagwan Din. In case of Bhagwan Din, there were some manipulations in the record of service for which he has filed writ petition in the Lucknow Bench of the Allahabad High Court and obtained an interim order from the High Court. Said Bhagwan Din continued to work under the orders of the High court till he wanted to remain in, on the basis of the date of birth which were earlier recorded. In the case of petitioner, there is no manipulation or cuttings in the entry of the date of birth as it was, in the case of Bhagwan Din. It was re-asserted that the date of birth recorded in the service book as well as in the High School Certificate is final for all practicable purposes and the alleged recommendations were not orders in the eye of law until and unless an order ts issued by the competent authority. But no order has ever been issued at any stage for correction of the date of birth of the petitioner as recorded in the High School Certificate and the service book of the petitioner. Ultimately, on 26. 7. 1995, the claim petition filed by the petitioner was dismissed. ( 17 ) THE Tribunal was of the view that although the department has not denied the fact that some recommendations were made by the Revenue Minister and the same was approved by the Chief minister in the absence of any authentication as provided under Article 161 (1) of the constitution, the recommendation is not the Government Order and the authorities are not obliged to obey it in view of the law laid down by Honble Supreme Court in Bashittar Singh v. State of Punjab and Anr. AIR 1963 SC 395 and State of Bihar v. Kripalu Shanker. AIR 1987 SC 1554. The Tribunal was, however, of the opinion that when the order of the Chief Minister or some higher dignitary is not obeyed by the subordinates, then the executive authorities are competent to deal with the matter and they need not go to the Court for getting it implemented for the reason that they are themselves competent and also know the ways to get their order executed. Referring the cases referred to, by the petitioner where the Allahabad High Court issued mandamus directing the junior officers to obey the command of their higher officers, the tribunal was of the view that none of the cases cited by the petitioner are applicable to the facts of the case. The Tribunal further observed that there is a difference in the jurisdiction of the tribunal and the High Court. The Tribunal exercises jurisdiction conferred by the Statute, while the High Court exercises extra-ordinary jurisdiction under Article 226 of the Constitution of india, so the Tribunal cannot issue direction to the State Government, which can be issued by the high Court, and it has to confine itself on the matters covered under Section 4 of the U. P. Services Tribunal Act, which are limited, as such the Tribunal had no jurisdiction to issue such direction. ( 18 ) WE have summoned the relevant file and the record pertaining to the petitioner. The office note dated 30. 10. 1989 at pages 23 and 24 mentions the fact that in the service book of the petitioner, on the basis of the High School Certificate, his date of birth is recorded as 1. 7. 1937. It also took notice of the certificate issued by the Municipal Corporation, according to which a male child was born to the petitioners father on 1. 7. 1942, as well as the certificate issued by the chief Medical Officer. But the most Important certificate was the record pertaining to the petitioners father, who was employed in the Secretariat Library, wherein his date of birth was recorded as 15. 8. 1927, meaning thereby, that the father of the petitioner was born in the year 1927 and according to the entries in the service book of the petitioner, the petitioner was born in the year 1937, which is astonishing as no son can be born from a father who was aged about ten years, hence while recording the date of birth of the petitioner in the service book, there appeared to be a mistake. ( 19 ) THE office note further indicated that wife of the petitioner had referred to various rulings of honble the Supreme Court, which has been concurred by the Law Department, hence keeping in view the opinion of the Law Department, it would be appropriate that 1980 Rules may be relaxed as far as the petitioner is concerned and it will be proper that the correction "be made" regarding the date of birth of the petitioner. The note further indicated that the Revenue Minister had sought the opinion of Law Department, which concurred with the view expressed by Honble supreme Court and that the Rule can be relaxed. ( 20 ) THE Joint Secretary, Revenue Department, approved the official noting of the department on 2. 11. 1989 and asked the department that the Revenue Minister be made aware of about the same and consent of the Karmik Department be obtained. ( 21 ) BUT, on 10. 11. 1989, the Special Secretary, Ministry for Revenue, in his note stated that in view of the opinion obtained by the Karmik Department, there existed no justification for the correction of the date of birth of the petitioner and his representation deserved to be rejected. ( 22 ) ON 19. 11. 1989, the then Revenue Minister agreed with the official noting of the Revenue department and the Joint Secretary. The then Revenue Minister in his note addressed to the chief Minister, stated that he agreed with official noting of the department at page 24 of the file and in view of the opinion of Law Department, there existed justification to relax the 1980 Rule by the Karmik Vlbhag. as far as the petitioner is concerned. On 27. 11. 1989, the Chief Minister by putting his signature approved the note of the Revenue Minister. ( 23 ) IT appears that in pursuance of the orders passed by the Revenue Minister and the Chief minister, which was received by the Revenue Secretary on 1. 12. 1989, no Government Order was issued, as the file, according to the note dated 11. 10. 1994, was not traceable as it remained dusted in the department and was traced out only on 11. 10. 1994. On 10-11. 12. 1989, no Government Order was issued, as the file, according to the note dated 11. 10. 1994, was not traceable as it remained dusted in the department and was traced out only on 11. 10. 1994. On 10-11. 1994, the Joint secretary took a volte face by indicating on the file that the representation of the petitioner should be rejected inasmuch as, there existed no provision in the Rules for the relaxation of the date of birth and only that date of birth would be accepted which is indicated in the service book, but the noting indicated that the orders were passed at page 27 of the file by the Secretary/ revenue Minister and the Chief Minister for relaxing the Rules as far as the petitioner is concerned and on 16. 10. 1995, the Joint Secretary. Revenue, indicated on the file that the Karmik department be directed to obtain the opinion of the Law Department of the Stale and the Law department opined that it would be appropriate to consider the matter as every public servant had a right to remain in service till he attained the age of superannuation. He also mentioned that the opinion of the Law Department finds place at pages 18 and 19 of the file and on 6. 6. 1989, the law secretary expressed the view that it is the right of public servant to remain in service till he attains the age of superannuations, hence in the case of the petitioner, the Rules can be relaxed in the interest of justice, to the case of the petitioner. Thereafter, the matter was again referred to karmik Department with the said note. The Joint Secretary referring to the orders passed by the revenue Secretary/revenue Minister and the Chief Minister, noted that as the file was misplaced, no action could be taken and, in the meantime, the petitioner filed a claim petition. But he expressed a view that there existed no provision in the Rules for the relaxation of the age, but the note further indicated that regarding relaxation of age the matter was placed before the cabinet and the Cabinet authorised the Chief Minister to take appropriate action, who had approved the opinion of the Revenue Secretary/revenue Minister. ( 24 ) IN view of the decision taken by the Cabinet, the file was again placed before the Chief minister. ( 24 ) IN view of the decision taken by the Cabinet, the file was again placed before the Chief minister. The Chief Secretary informed the Chief Minister that the Government has been contesting the claim of the petitioner before the Tribunal where the claim petition filed by the petitioner is pending, hence it would not be appropriate to take any decision in this matter. It was further indicated by the Chief Secretary that the Chief Minister had been made aware about the development and he agreed with the opinion expressed by the Chief Secretary. The noting further indicated that in view of the interim order passed by the Tribunal on 12. 5. 1995, the petitioner be not retired on the basis of the date of birth recorded in the service book but as the claim petition was dismissed on 26. 7. 1995, he was accordingly ordered to be retired with effect from 30. 6. 1995. ( 25 ) FROM the office note mentioned in page 49 of the file dated 19. 7. 1999, made by Deputy secretary (Finance), it transpires that treating the date of birth of the petitioner as 1. 7. 1937, the petitioner should have been retired in the year 1995 but due to pendency of the claim petition he was not retired in the year 1995 and he continued to work till 31. 1. 1998. Office of the commissioner was directed to prepare the pension papers of the petitioner and the matter was still pending in the Commissionerate. In these circumstances, whether it would be appropriate to grant him pension treating him to be retired on 31. 1. 1998. The Deputy Secretary stated that as the petitioner ought to have been retired in the year 1995 but he was allowed to continue till 31. 1. 1998, hence it may be considered as to whether such officers who were responsible for allowing the petitioner to continue in service, be made accountable for such a lapse. He submitted that in that regard, the opinion of the law department may be sought. 1. 1998, hence it may be considered as to whether such officers who were responsible for allowing the petitioner to continue in service, be made accountable for such a lapse. He submitted that in that regard, the opinion of the law department may be sought. ( 26 ) IT appears that after the dismissal of the claim petition, and even after filing of the writ petition, the petitioner again submitted the representation to the State Government staking a claim for correction of the date of birth in service book and relaxation of Rules in that regard and after various noting in the department, the matter was again referred to the law department. The special Secretary to Law Department on 7. 12. 1999, opined that the writ should be contested, because Honble the Supreme Court in Rama Swami v. Commissioner of Bombay Police, AIR 1997 SC 2055 : AIR 1997 SC 1986 and State of Orissa v. Ram Narain, AIR 1997 SC 2452 , has observed that after the lapse of considerable time, the date of birth cannot be corrected. Accordingly, the matter was closed. ( 27 ) IT is pertinent to mention here that the present writ petition was filed on 28. 7. 1995. The writ petition was admitted and a direction was issued to produce the relevant record containing the recommendations of the Chief Minister. Revenue Minister and the decision of the law department. The file containing the decision of the Cabinet. If any, may also be produced before the Court on the date of listing. The question of grant of interim relief shall be considered later on but the Court ordered that the post which was held by the petitioner shall not be filled till further order of the Court but it was left open to opposite parties to make any interim arrangement during that period. ( 28 ) IT is relevant to mention here that the entire record, except the minutes of the Cabinet which authorized the Chief Minister, to take a decision in the matter of the correction of the date of birth of the petitioner, and the relaxation of the Rules to that extent is concerned, was not produced before this Court as it was submitted that it was not traceable. ( 29 ) FROM the facts and circumstances of the cases, following points have emerged out in the present writ petition : (1) The petitioner is the eldest son of his father from his first wife, and according to birth certificate, which was produced before U. P. Public Services Tribunal, a male child was bom on 1. 7. 1942 to Rahmat Ullah, the father of the petitioner. (2) The only other son. who is younger to the petitioner was born on 3. 1. 1947 from the second wife of the petitioners father, as recorded in the gradation list of the Supply Officer where the younger brother of the petitioner (Akhtar Hussain) was employed, and, the father of the petitioner had only two sons and no other issue. (3) On the direction of the Commissioner, Lucknow Division, Lucknow, the Chief Medical officer examined the petitioner, who gave his opinion that on the date of the medical examination i. e. , 27. 9. 1984, the petitioner was aged about 42 years. (4) The date of birth of the petitioner was recorded at the behest of the petitioners step mother as 1. 7. 1937, as the mother of the petitioner had expired before his father married with another lady when the petitioner for the first time joined in Shia School, Lucknow, and the same date of birth finds mentioned in the High School Certificate. (5) The date of birth of the petitioner, recorded in the service of the petitioner. which he had signed, is 1. 7. 1937. (6) The father of the petitioner was employed in the legislative department of the Secretariat and according to his service record, he was born on 15. 8. 1927. (7) The Secretary. Law Department/ Legal Remembrancer, the Revenue Minister, the Chief minister. In pursuance of the Cabinet decision, asked for the relaxation of the 1980 Rule in the case of the petitioner. ( 30 ) IF the date of birth of the petitioner 1. 7. 1937 as recorded in the service book is accepted, as correct, then the difference between the date of birth of the petitioners father and the petitioner, will be only ten years. which is an impossibility as no child can be born to a person aged about ten years. ( 31 ) SEVERAL D. O. letters as indicated in the body of the judgment were addressed to the State government, by the Commissioner. which is an impossibility as no child can be born to a person aged about ten years. ( 31 ) SEVERAL D. O. letters as indicated in the body of the judgment were addressed to the State government, by the Commissioner. Lucknow Division, Lucknow, recommending the correction of the date of birth of the petitioner in the service record and the successive Divisional commissioner found that the date of birth of the petitioner recorded in the service book deserves to be corrected in view of the evidence adduced by the petitioner. ( 32 ) THE official noting on the departmental file produced before the Court reveals that the date of birth of the petitioner was wrongly recorded by a mistake. ( 33 ) THE Revenue Minister agreeing with the official noting of the Revenue Department after seeking opinion of the law department, which opined to relax 1980 Rules, was also of the view that the Rules be relaxed and the date of birth of the petitioner be corrected and forwarded the case of the petitioner to the Chief Minister. ( 34 ) THE Cabinet authorized the Chief Minister to take final decision. On 27. 11. 1989 the Chief minister approved the note of the Revenue Secretary as well as the Revenue Minister, but no government Order was issued till 11. 10-1994, for about five years, as the file was misplaced. ( 35 ) ON the same date, i. e. , 11. 10. 1994, the Joint Secretary suddenly and completely changed the entire stand of the State Government and suggested that there existed no provision in the Rules for the relaxation of the Rules and the date of birth entered into the service record should be treated as correct and no representation, for the correction of the date of birth, is maintainable. He opined that the representation should be rejected and the file be placed before the secretary/revenue Minister/chief Minister for their approval, but as the petitioner had filed the claim petition before the Tribunal, The Revenue Secretary directed that the file be summoned and one months time be asked for filing the counter-affidavit. He opined that the representation should be rejected and the file be placed before the secretary/revenue Minister/chief Minister for their approval, but as the petitioner had filed the claim petition before the Tribunal, The Revenue Secretary directed that the file be summoned and one months time be asked for filing the counter-affidavit. ( 36 ) ALTHOUGH the official file does not indicate that the file was ever produced before the revenue Minister or the Chief Minister for passing appropriate orders, but the Principal secretary to the Chief Minister indicated that the Chief Minister was in favour of the official note. The official noting indicated that as the petitioner had filed the claim petition, which is being pending and being contested, hence it would not be proper to take any decision in the matter. ( 37 ) THERE is nothing on the record to indicate that the earlier order passed by the Revenue secretary. Cabinet decision by means of which the Chief Minister was authorized to take a decision, and the order of the Chief Minister were rescinded. ( 38 ) ALTHOUGH, according to the date of birth entered into the service record, the petitioner ought to have been retired in the year 1995 but he was allowed to work in the Commissionerate till 31. 1. 1998. ( 39 ) TAKING a cue from the provisions of Article 166 of the Constitution of India, it was vehemently urged by learned standing counsel that Clause (1) of Article 166 required that all executive action of the State Government shall be expressed to be taken in the name of the governor, as no Government Order was issued, the Public Services Tribunal was justified in rejecting the claim of the petitioner. ( 40 ) THE Tribunal in its judgment indicated that although the prayer has been made for issuing of a direction to the opposite parties to implement the recommendation of the Revenue Minister and the Chief Minister, which the department has not denied. The recommendation is not the government Order and the authorities are not obliged to obey it, in view of the law laid down by honble Supreme Court in Bachfifttar Singh v. State of Punjab and Anr. AIR 1963 SC 395 . The recommendation is not the government Order and the authorities are not obliged to obey it, in view of the law laid down by honble Supreme Court in Bachfifttar Singh v. State of Punjab and Anr. AIR 1963 SC 395 . ( 41 ) IN Bachhittar Singh (supra) the Revenue Minister of erstwhile Pepsu Government expressed his opinion on the official record, which was denied by the State that Bachhittar Singh was a refugee and had a large family to support and his dismissal would be too harsh and that instead of dismissal, he should be reverted to the original post of Qanungo and also warned that if he does not behave properly in future, he will be dealt with severely. On the next date, the State of pepsu merged in the State of Punjab. The contention of Bachhittar Singh was that the remarks amounted to an order of the State Government, which were communicated to him by the revenue Minister. However, it was common ground that the aforesaid remarks/orders, whatever it may be, were not communicated efficiently to the appellant. In para 8 of the report, Honble supreme Court observed : "what the appellant calls an order of the State Government is. admittedly, not expressed to be in the name of the Governor. But with that point we shall deal later. What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government, i. e. . of the governor. " Honble Supreme Court, in that regard, referred to Rules 25 and 34 of the Rules of Business of the Government of Pepsu. Rule 34 required certain classes of cases to be submitted to the rajpramukh and the Chief Minister, before the issue of orders. But it was conceded during the course of the argument that a case of the kind before the Court did not fall within that Rule, meaning thereby, that the case of Bachhittar Singh was never submitted to Raj Pramukh and the chief Minister. In para 9 of the report, Honble Supreme Court expressed the view that the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say. In regard, to a particular matter, does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. At the bottom of para 10 of the report. Honble supreme Court observed that: thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it. it would be open to the Council of Ministers to consider the matter over and over against and. therefore, till its communication the order cannot be regarded as anything more than provisional in nature. " in para 12, column I, page 399 of the report, Honble Supreme Court observed that :"we, however, think that Clause (ii) (of Punjab Rules of Business) would certainly entitle the chief Minister to pass an order of the kind which he has made here. The question to be considered was whether though grave charges had been proved against an official, he should be removed from service forthwith or merely reduced in rank. That unquestionably raises a question of policy which would affect many cases and all the departments of the State. The Chief Minister would, therefore, have been within his rights to call up the file of his own accord and pass orders thereon. Of course, the Rule does not say that the Chief Minister would be entitled to pass orders but when it says that he is entitled to call for the file before the issue of orders it clearly implies that he has a right to interfere and make such orders as he thinks appropriate. Finally, there is clause (xix) which confers a wide discretion up on the Chief Minister to call for any file and deal with it himself. " In para 13 of the report, it was further observed that :"thus, the order passed by the Chief Minister, even though it is on a matter pertaining to the portfolio of the Revenue Minister, will be deemed to be an order of the Council of Minister. " In para 13 of the report, it was further observed that :"thus, the order passed by the Chief Minister, even though it is on a matter pertaining to the portfolio of the Revenue Minister, will be deemed to be an order of the Council of Minister. So deemed its contents would be the Chief Ministers advice to the Governor, for which the Council of Ministers would be collectively responsible. The action taken thereon in pursuance of Rule 8 of the Rules of Business made by the Governor under Article 166 (3) of the Constitution would then be the action of the Government. Here one of the Under Secretaries to the Government of punjab informed the appellant by his order dated May 1, 1957, that his representation had been considered and rejected, evidently by the State Government. This would show that the appropriate action had been taken under the relevant Rule. " it is, thus, evident that the opinion/order passed by the Revenue Minister was in independent capacity. It was not an order of either the Chief Minister/raj Pramukh. The case of Bachhittar singh was never taken up by the Council of Ministers. ( 42 ) IN !he present case, the Revenue Minister has clearly passed the order and referred the matter to the Chief Minister for relaxation of 1980 Rules. The Chief Minister placed the matters before the Council of Ministers. The Council of Ministers authorized the Chief Minister to take appropriate action and the Chief Minister passed the order for relaxation of 1980 Rules, but no government Order could be issued as the file was misplaced and remained dusted on the table of the officer for more than five years. When the file was traced out, the Joint Secretary made a volte face, as mentioned in the foregoing paragraph. Earlier the orders were passed by the revenue Minister to relax the Rules, the Council of Ministers authorized the Chief Minister to take a decision in the matter, and the order of the Chief Minister was never rescinded. The file only reveals that as no Government Order could be issued, as the petitioner had. in the meantime, filed the claim petition and the opinion of the officer was to contest the claim petition. The Principal Secretary of the Chief Minister verbally informed the Secretary to the Revenue department that the Chief Minister agreed with that opinion. The file only reveals that as no Government Order could be issued, as the petitioner had. in the meantime, filed the claim petition and the opinion of the officer was to contest the claim petition. The Principal Secretary of the Chief Minister verbally informed the Secretary to the Revenue department that the Chief Minister agreed with that opinion. ( 43 ) THE question which requires consideration by this Court is that as to whether the decision of the Revenue Minister, the Council of the Ministers and the Chief Minister could be frustrated or rescinded to in the manner indicated herein above. ( 44 ) ARTICLE 163 (1) of the Constitution of India provides that there will be a Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Although the Governor is the constitutional head of the executive, but he acts on the advice of the Council of Ministers, in exercise of his function. When the function is allocated by the rules of business, the decision of the Minister or other officers, empowered by those Rules becomes the decision of the Governor as held by Honble supreme Court in Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 . Article 166 (1) of the constitution only envisages that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This Clause relates to the cases where the executive action has to be expressed in the shape of formal order or notification. Every executive decision need not be as laid down under Article 166 (1), but when it lakes the form of an order, it has to comply with Article 166 (1 ). In State of Bihar v. Kripalu Shanker, AIR 1987 SC 1554, it was observed by Honble Supreme Court that a study of this article, therefore, makes it clear that the noting in a file gets culminated into an order affecting the right of parties only when it reached the head of the department and is expressed in the name of the Governor authenticated in the manner provided in Article 166 (2 ). ( 45 ) IN the present case, the controversy involved does not pertain to the question as to whether noting or the order passed by the Revenue Minister and the Chief Minister has been expressed in the name of the Governor authenticated in the manner provided under Article 166 (2 ). That situation never arose in the present case. The order of the Minister and the Chief Minister allowed to remain dusted on the desk of an official of the Secretariat. It was not sent to the head of the department to issue an order in term of Article 166 (1) of the Constitution of India. ( 46 ) THE main question which calls for consideration is as to whether the decision of a Minister in accordance with the rules of business, the decision of the Council of Ministers and the Chief minister can be frustrated, circumvented or allowed to lapse by the head of the department, who has to express an order in the name of the Governor. The Tribunal has taken a view that the recommendation in this case are not an order, so the opposite parties cannot be directed to implement it. The Tribunal also expressed the view that when the order of Honble the Chief minister or the higher dignitaries are not obeyed by the subordinate, then the executive authorities are competent to deal with the matter and they need not to go to the Court for getting it implemented for the reason that they, themselves, are competent and also know the ways to get their order executed. We have already dealt with the noting on the file, which reveals that the revenue Minister has passed an order to relax the 1980 Rules, forwarded the file to the Chief minister, who placed the matter before the Council of Ministers, which authorized the Chief minister to take appropriate action. The Chief Minister passed the order regarding relaxation of the Rules, hence it cannot be said that it was a mere recommendation, ( 47 ) THE Constitution of India envisaged Parliamentary system of the Government both at the union and the State level, which means that neither the President nor the Governor is to exercise executive functions. The Chief Minister passed the order regarding relaxation of the Rules, hence it cannot be said that it was a mere recommendation, ( 47 ) THE Constitution of India envisaged Parliamentary system of the Government both at the union and the State level, which means that neither the President nor the Governor is to exercise executive functions. He is the constitutional head of the Executive, and his powers are to be exercised on the advice of the Council of Ministers and through Ministers or other officers to whom the functions may be allocated according to the Rules of Business under Article 166 (3) of the Constitution of India, when a function is allocated by the Rules of Business, the decision of the Minister, Chief Minister or other officers empowered by the Rules of Business, becomes the decision of the Governor, it is, thus, the Council of Ministers, which exercises all executive functions, except those which exclusively fall within the domain of the President or the governor, in accordance with Constitution. ( 48 ) BEFORE the Tribunal the petitioner urged, that the Secretary be directed to issue the government Order in pursuance of the decision taken by the Revenue Minister and the Chief minister, but the Tribunal expressed its helplessness by stating that there existed a difference between the Tribunal and the Honble High Court. The Tribunal exercises the jurisdiction conferred by the Statute, namely, the public Services Tribunal Act, while Honble High Court exercises extra-ordinary jurisdiction under Article 226 of the Constitution of India, so the tribunal could not issue directions to the Government and it had to confine, itself, on the matter covered under Section 4 of the U. P. Public Services Tribunal Act, which are only limited, and as such, the petition had no force and was liable to be dismissed. ( 49 ) IN Tara Prasad Misra v. State of U. P. and Ors. ( 49 ) IN Tara Prasad Misra v. State of U. P. and Ors. (1990) 2 UPLBEC 905 IFB), which was relied by the petitioner, a question arose before the Full Bench, as to whether, in a situation, where on the representation against transfer on which the Minister for Health, Government of U. P. , wrote letter to the Chief Medical Officer to cancel the order of transfer, the Chief Medical Officer instead of cancelling the order of transfer, compelled the petitioner to join at the transferred place, the High Court can issue a writ in the nature of mandamus for the enforcement of direction/request. Two amongst three Honble Judges of this Court were of the view that the mandamus can be issued while another Honble Judge was of the view that the Chief Medical officer was the competent authority to pass the order of transfer or to cancel the same. Neither the Minister Incharge. nor the Additional Director had cancelled the order of transfer. What has been done was the only direction to the Chief Medical Officer to cancel the transfer order. That means that the authority competent to pass the order was the Chief Medical Officer transferring the petitioner, by means of a lawful order, hence in that situation, it would not, in view of the honble Judge, be expedient to enforce the order of the Additional Director and interfere in the lawful order of a competent authority. ( 50 ) THE question for consideration before the Full Bench was that when the Head of the department or the Minister, directed the subordinate authority or ask for compliance report, whether mandamus can be issued for complying with the said order. Referring to the decision of attorney General v. St. Inses, B. D. S. , (1961) 1qb 366 ; J. K. Raghupathy v. State of Andhra pradesh. AIR 1988 SC 1681 ; Audi Mukta Sadguru Shree Muktafee Vandas Swami Surarna jayanti Mohotsav Smarak Trust and Ors. v. R. V. Rudani and Ors. (1989) 2 UPLBEC 117 (SC) ; union of India v. K. P. Joseph, AIR 1973 SC 303 ; Sohan Lal v. Union of India, AIR 1957 SC 529 and Qammddin v. Rasul Baksh. AIR 1988 SC 1681 ; Audi Mukta Sadguru Shree Muktafee Vandas Swami Surarna jayanti Mohotsav Smarak Trust and Ors. v. R. V. Rudani and Ors. (1989) 2 UPLBEC 117 (SC) ; union of India v. K. P. Joseph, AIR 1973 SC 303 ; Sohan Lal v. Union of India, AIR 1957 SC 529 and Qammddin v. Rasul Baksh. 1989 17) LCD 534, it was observed that the writ in the nature of mandamus can be issued in the matter of public duty, which have not only been imposed by the Constitution but by the common law, custom and even contract. It was further held that if a Minister requires cancellation of a particular order, which order is not (sic)sacrosanct and can be cancelled or varied in some manner, the subordinate officer is bound to obey or carry out the same. If the Minister or Department has no power to get the order enforced, obviously it would not be possible for them to take action against the officer for insubordination. Even if action for insubordination can be taken against the order for non-compliance with the order so passed, but the order passed or direction given by the Superior Authority would even then remain ineffective and can only be ridiculed having serious repercussion of the functioning of the Government. . . ( 51 ) THE majority expressed the view that the mandamus can be issued to private individual as public officer performing public duty and subordinate to some higher authority for enforcing the request of superior officer which is in the nature of direction and will be in the nature of an administrative order. ( 52 ) WE are definitely of the view that even in administrative matters, writ in the nature of mandamus can be issued to subordinate officer, to carry out the direction of a superior authority. As stated in the foregoing paragraph, after the Revenue Minister and the Chief Minister has passed an order under the authority of the decision taken by the Council of the Ministers, it was incumbent upon the authorities concerned to issue an order as contemplated under Article 166 of the Constitution. As stated in the foregoing paragraph, after the Revenue Minister and the Chief Minister has passed an order under the authority of the decision taken by the Council of the Ministers, it was incumbent upon the authorities concerned to issue an order as contemplated under Article 166 of the Constitution. If the Joint Secretary or the Secretary were of the view that the decisions earlier taken required reconsideration, even after the lapse of five years, even then, it was incumbent upon them to refer the matter to the Revenue Minister and the Chief Minister, in view of the decision taken earlier by the Council of Ministers, it would have been appropriate for the Chief minister, if he was in disagreement with the earlier decision of the Council of Ministers, to have referred the matter to the Council of Ministers for reconsideration or passed an order rescinding the earlier decision taken by him. ( 53 ) AS we have pointed out that no such order exists on the official file. Only the Principal secretary of the Chief Minister conveyed to the authorities concerned that the Chief Minister is in agreement with the noting of the officer to contest the claim petition filed by the petitioner and not to relax the 1980 Rules. That verbal communication by the Principal Secretary to the Chief minister has no value, inasmuch as. earlier orders were passed by the Revenue Minister and the chief Minister, themselves. ( 54 ) NOW we advert to other question, as to whether the date of birth of a public servant can be altered or not. ( 55 ) IN this regard Rule 2 of the U. P. Recruitment to Services (Determination of Date of Birth)Rules. 1974, as amended vide Rule 1980, is relevant, which is reproduced as under : "2. ( 54 ) NOW we advert to other question, as to whether the date of birth of a public servant can be altered or not. ( 55 ) IN this regard Rule 2 of the U. P. Recruitment to Services (Determination of Date of Birth)Rules. 1974, as amended vide Rule 1980, is relevant, which is reproduced as under : "2. Determination of correct date of birth or age.--The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation to his service, including eligibility for promotion, super annuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. " ( 56 ) EVEN before coming into force of U. P. Recruitment (Determination of Date of Birth) Rules, 1974, as amended in 1980, there existed such a provision in the Government Orders that tn case rules pertaining to Government servant causes any hardship, the requirement of the Rule can be dispensed with. The Government Order No. 3977/ii/b/77/1954 is reproduced below : "where the State Government is satisfied that the operation of any Rule regulating the conditions of service of State Government servants, or any class of such Government servants, causes undue hardship in any particular case, it may, notwithstanding any thing contained in the Rules applicable to the case, by order dispense with or relax the requirements of that Rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. In this Rule, the expression "state Government servants means all persons whose conditions of service may be regulated by Rules made by the Government under the proviso to Article 309 of the Constitution. In this Rule, the expression "state Government servants means all persons whose conditions of service may be regulated by Rules made by the Government under the proviso to Article 309 of the Constitution. ( 57 ) A perusal of Rules, 1974 as amended in 1980, will indicate that it is presumptive in nature to the extent that if a person has passed High School examination, the date of birth or the age recorded in his service book, at the time of entry into the Government service, shall be deemed to be his date of birth or the age. But if a public servant has not passed any such examination or has passed such examination after joining the services, the date of birth or the age recorded in service book, at the time of his entry into the Government service, shall be deemed to be his correct date of birth or the age for all purposes and no application or the representation shall be entertained for correction of such date or the age. In any circumstances whatsoever. ( 58 ) IT is well-settled principle of interpretation of a statute, that the statue has to be read as a whole to find the real intention of the Legislature. In Sultana Begum v. Prem Chand Jam. (1997)1 SCC 373 , Honble Supreme Court was of the view that the Courts have to keep in mind that an interpretation which reduces one of the provisions as a "dead letter or useless lumber is not harmonious construction. In Mohan Singh and Ors. v. International Airport Authority of India and Ors. (1997) 9 SCC 132 . Honble Supreme Court observed : The scope and language of the statute and consideration of policy at times may. however, create exception showing that the Legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. . . . . . . . . . . Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. . . . . . . . . . . . . . . . . . . . . . Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. . . . . . . . . . . . It is the duty of the Court to try to gel at the real intention of the Legislature by carefully analyzing the whole scope of the Statute or Section or a phrase under consideration. " ( 59 ) RULE 2 of the aforementioned Rule, undoubtedly, put an embargo on the right of a public servant to make a representation for the correction or alteration of the date of birth or the age recorded in the High School certificate or in the service book, as the case may be, and attach finality to such an entry. The policy in the said Rule raises presumption of the correctness of the entry of the date of birth recorded in the High School certificate and in the service book of a public servant, but the question which requires consideration is whether it was intendment of the legislature to attach such finality where the entry regarding the date of birth or the age in the high School certificate or in the service book is either accidental or clerical in nature or on account of manipulation or as such which leads to an absurdity because the Rules have to be so interpreted reasonably which further the cause of justice. The answer to the question requires consideration in view of the law laid down by Honblc Supreme Court in State of Assam and anr. v. Daksha Prasad Deka and Ors. 1970 (3) SCC 624 , in which it was observed : "high Court was wrong in holding that there was any infringement of Article 311 12) of the constitution. The date of compulsory retirement under F. R. 56 (a) must be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate producer. But, in view of s. R. 8. Note which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of actual superannuation. But, in view of s. R. 8. Note which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of actual superannuation. It is not possible to agree with the view of the High Court that the date of actual superannuation within the meaning of S. R. 8. Note is the date of superannuation computed with reference to the claim made by the public servant and not with reference to the date as entered in the service record. If on a representation that he had attained the age of majority on the date on which he enters service it would not be open for him to contend that under the appropriate service Rules he could not have been admitted to the service but for the misrepresentation made by him. " ( 60 ) IN Jiwan Kishore v. Delhi Transport Corporation, AIR 1980 SC 1251 , where according to one record the date of birth of the petitioner was 1917 and according to another record 1927. In view of that discrepancy, the employer, the Delhi Transport Corporation appointed its Medical board to fix the age of the appellant and according to the assessment of the age by the Medical board, it was found that he was 51 on 13. 6. 1975. Considering the aforesaid facts and circumstances. Honble Supreme Court observed : "we see no reason to ignore this scientific fixation of age when we have records which are flagrantly conflicting. Therefore, we fix the age of the appellant in partial allowance of his appeal at 51 on 13. 6. 1975. This means he will retire at the age of 58 on 12. 6. 1982. We are not impressed with the suggestion that we could pre-fix the age at the 1st of January of the year of retirement as per relevant regulation. We are not going into its vires in this case as both sides agree that if the Court fixes the age as per the Medical Boards determination, they will accept and abide by it. On this footing we dispose of the appeal in partial allowance and set aside the order of retirement and further direct that appellant be continued in service with all the consequential benefits as a regular employee until 12. 6. 1982. On this footing we dispose of the appeal in partial allowance and set aside the order of retirement and further direct that appellant be continued in service with all the consequential benefits as a regular employee until 12. 6. 1982. " ( 61 ) IN the case of Government of Andhra Pradesh v. M. Hayagreev Sarma, (1990) 2 SCC 682 , where more or less similar Rules existed, Honble Supreme Court observed : "the object underlying Rule 4 is to avoid repeated applications by a Government employee for the correction of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been recorded in the service register in accordance with the Rules applicable to him and if that entry had become final under the Rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth. Rule 4 laid down a salutary principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984. Rules. Since the question of alteration of the respondents date of birth had been made on the basis of the school certificate and his application for alteration had already been rejected in 1968. he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules. It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act. 1886, as the question of correction of his date of birth had already been finally decided in 1968. " ( 62 ) IT appears that Note 5 to F. R. 56 (m) was incorporated in the year 1979, which provides for request to be made for correction of the date of birth within five years from the date of entry into service. " ( 62 ) IT appears that Note 5 to F. R. 56 (m) was incorporated in the year 1979, which provides for request to be made for correction of the date of birth within five years from the date of entry into service. In Union of India v. Harnam Singh, (1993) 2 SCC 162 , it was observed that : "it is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the Rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the Courts and Tribunals. It is nonetheless competent for the government to fix a time-limit, in the service Rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. A public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. A public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. Though Note 5 of F. R. 56 (m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into service but the intention of the rule-making authority in providing tile period of limitation for seeking the correction of the date of birth of the Government servant has to be examined which is to discourage stale claims and belated applications for alteration of date of birth recorded in the service-book at the lime of initial entry. It is the duty of the Courts and Tribunals to promote that intention by an intelligible and harmonious interpretation of the Rule rather that choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule-making authority to give unlimited time to seek correction of date of birth, after 1979, to those Government servants who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979. If a Government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non-suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of Government servant who applied for correction of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those Government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later that five years after the coming into force of the amendment in 1979. This view would be in consonance with the intention of the rule-making authority. This view would be in consonance with the intention of the rule-making authority. " ( 63 ) IN Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran, AIR 1993 sc 2647 , in para 6 of the report Honble Supreme Court observed : "so far as the facts of the present case are concerned, admittedly the respondent entered into the service of State Government as early as in the year 1958. He never questioned the entry in respect of his date of birth in his service register, till August. 1991, when he filed an application before the Tribunal for alteration of his date of birth from 9. 8. 1934 to 9. 8. 1936. This application was filed only about a year before his date of superannuation, mentioned in his service register. On 9. 9. 1992, an interim order was passed by the Tribunal, when the respondent had already superannuated with reference to the date of birth mentioned in the service register and ultimately by the impugned order, the Tribunal directed the appellant to alter his date of birth as 9. 8. 1936. While issuing such a direction, the Tribunal has taken into consideration, as to how many brothers the respondent has and what were the dates of their birth. Although the Tribunal has observed that the different dates of birth of the brothers of the respondent, indicate that "there is a great deal of confusion and incongruities regarding dates of birth of the various members of the applicants family. " Still on basis of a report of the Revenue Divisional Officer, submitted after oral Inquiry made from different persons, including the mother of the respondent, the Tribunal has come to the conclusion, that the date of birth of the respondent was 9. 8. 1936 instead of 9. 8. 1934. The Commissioner for Revenue Administration, had rejected the said report submitted by the Revenue Divisional Officer, but the Tribunal has accepted the said report for correction of date of birth of the respondent. If the date of birth of a public servant is corrected only on basis of a report submitted by a Revenue Officer after holding an inquiry, according to us, it will introduce uncertainty, in public services. This Court has repeatedly pointed out that correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. This Court has repeatedly pointed out that correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. Any such order must be passed on materials produced by the public servant from which the irresistible conclusion follows that the date of birth recorded in the service book was incorrect. While disposing of any such application, the Court or the Tribunal, has first to examine, whether the application has been made within the prescribed period under some Rule or administrative order. If there is no Rule or order prescribing any period, then the Court or Tribunal has to examine, why such application was not made within a reasonable time after joining the service. " ( 64 ) IN State of Tamil Nadu v. T. V. Venugopalan, (1994) 6 SCC 302 , It was observed by honble Supreme Court as under : ". . . . . . . . . . . . . . . It is well known that the service record would be opened after the Government servant enters the service and normally the entry in the service record would be countersigned by the government servant. The date of birth as entered in the school record. . . . . . . . . . . is the source material for making entry in the service record. ( 65 ) SIMILAR view was taken in State of Orissa and others v. Ramanath Patnaik, (1997) 5 SCC 181 , wherein it was observed : "when entry was made in the service record and when he was in service, he did not make any attempt to have the service record corrected. Therefore, any amount of evidence produced subsequently would be of no avail. The High Court, therefore, has committed manifest error of law in refusing to entertain the second appeal. " ( 66 ) IN Union of India v. Ram Sula Sharma, 1995 SCC (Lands) 605, Honble Supreme Court observed that the correction of the date of birth cannot be allowed at belated stage as it was not a case of variance into the dates of birth recorded in the service record vis-a-vis in service book. " ( 66 ) IN Union of India v. Ram Sula Sharma, 1995 SCC (Lands) 605, Honble Supreme Court observed that the correction of the date of birth cannot be allowed at belated stage as it was not a case of variance into the dates of birth recorded in the service record vis-a-vis in service book. In union of India v. Kantilal Hematram Pandya, 1995 SCC (Lands) 599 and Collector of Madras v. K. Rajamanickam, 1995 SCC (Lands) 414, Honble Supreme Court observed that the controversy regarding the date of birth was set at rest till-the employee reached the age of superannuation and such a request should not be allowed on the eve of retirement of a public servant, and such public servant cannot opt for altering the entry afler awakening from deep slumber. In visakhapatnam Dock Labour Board v. E. Atchanna, 1996 SCC (Lands) 526, Honble Supreme court held that by means of an interim order no relief to a public servant, who is going to retire, should be given particularly when public servant himself was guilty of having failed to make claim within reasonable time before the concerned authority. In Professor Mohd. Zameeruddin siddiqui v. Executive Council. Aligarh Muslim University, Allgarh, 1996 (1) ESC 289 (All), a division Bench of the High Court observed that the date of birth recorded in the service record at the time of recruitment in the service is final and the same cannot be changed, particularly at the time of retirement. It was further observed in para 27 of the report that if an employee has enjoyed a particular privilege and status on the basis of certain facts recorded at the time of entry in service, he shall not be entitled to get the same changed. ( 67 ) IN Union of India v. C. Rama Swamy and Ors. (1997) 4 SCC 647 . Honble Supreme Court observed : "effect of Rule 16a (2) is that at least as far as post-4th December, 1971, appointees are concerned, the question of the Central Government accepting any date of birth other than that indicated in the application for recruitment to the service does not arise. (1997) 4 SCC 647 . Honble Supreme Court observed : "effect of Rule 16a (2) is that at least as far as post-4th December, 1971, appointees are concerned, the question of the Central Government accepting any date of birth other than that indicated in the application for recruitment to the service does not arise. This implies that there would be no occasion for the Central Government to even entertain an application for alteration in the date of birth, as the Government is enjoined to accept only that date which is declared by such person in his application for recruitment. This is however, subject to limited circumstances under which correction can be effected under Rule 16a (4) where a bona fide clerical error has occurred in accepting date of birth under Rules 16a (2), and 16a (3 ). The date of birth as recorded in the service book, in the case of a pre 4th December, 1971, entrant and the date of birth as declared by an officer in the application for recruitment, in the case of post 4th December, 1971, entrant, has to be accepted as correct by the Central government and this can be altered only if it is established under Rule 16a (4) that there was a bona fide clerical mistake in accepting the date of birth. Bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. In the present case, the same date of birth which was mentioned by respondent in his application form, was also written in his service record. There is thus no clerical error. It is not possible to. accept the contention that production of birth certificate from Sub-Registrars Officer and horoscope which supports an employees claim for correction of entry regarding date of birth, should be treated as a bona fide clerical error. " ( 68 ) IN State of U. P. and Ors. v. Sharda Prasad, 2000 All LJ 1998. a Division Bench after looking into the original service book (Service Roll), Service Book, Pass Book and G. P. Fund account. Character Roll. " ( 68 ) IN State of U. P. and Ors. v. Sharda Prasad, 2000 All LJ 1998. a Division Bench after looking into the original service book (Service Roll), Service Book, Pass Book and G. P. Fund account. Character Roll. Printed application form, Form of verification of nomination, in which the date of birth of the public servant was entered, original horoscope and Copy of the certificate issued by the Head of the Department, observed : "in the above backdrop, one will appreciate that the Rules have to be interpreted pragmatically and which furthers the cause of justice. We. therefore, lean in favour of an interpretation which does not prohibit concerned authority from carrying out corrections purely accidental and clerical in nature which neither tend to alter the status nor corresponding obligations between the parties. In other words, if the correction is only to remove an obvious and apparent accidental mistake/slip. apparent absurdity as a consequence of interpolation or forgery in record (which is required to straighten the records to bring in line with other material on record) then it is not a change by correction of a nature which in real sense brings change in long settled factual position otherwise proved on record. " ( 69 ) IN Pifamber Dutt Senwal v. State of U. P. and Ors. 2000 All LJ 2341, the petitioner took a stand that the date of birth entered into the service book, was not correctly recorded. It was urged before the Division Bench that no application or representation should be entertained for correction, in any circumstances whatsoever, under the Rules. In the light of the aforesaid circumstances, the Division Bench observed : "the interpretation, as was drawn by the Officer Incharge, District Office. Uttar Kashi, perhaps, has arisen on a misreading of the relevant Rule and in the interpretation of it. When a Rule asserts that a certain state of affairs stood and were recorded, then, it shall be deemed and assumed to be correct. This process of presumption is based on the analysis that if there be a high School Certificate so presented at the time of entry into service, then, the date of birth recorded in it could be presumed as the correct date. This process of presumption is based on the analysis that if there be a high School Certificate so presented at the time of entry into service, then, the date of birth recorded in it could be presumed as the correct date. But, if such a certificate, i. e. High School or school Leaving is not available as an incumbent has not read at this level, then, the presumption is not available to be drawn. " It was further observed :"recording a date of birth or making an entry into the service book much after an incumbent entered service itself raises a presumption of doubt, in so far as present case is concerned, this court need not notice any other aspect on facts as the Officer Incharge, District Office. Uttar kashi, has come to the conclusion that the date of birth of petitioner appellant. Pitamber Dutt semwal has been incorrectly recorded in the service book much after the incumbent entered service. In the circumstances, the Court finds that the learned Judge, when he took too strict a view in not permitting a writ of certiorari to operate for correction of the service record, was in error. " It was also held :"the Rule is interpreted in light of the circumstances indicated by this Court. The Officer incharge. District Office, Uttar Kashi, has arrived at a correct conclusion on the basis of facts on record that the date of birth has been entered not at the time of entering service but later and that also incorrectly. In the circumstances, this Court needs to observe that the Rule permits correction of the change of date, given the facts and circumstances of each case. " the special appeal was accordingly allowed and the impugned orders were quashed and it was held that the date of retirement of the petitioner appellant will be as found by the Officer incharge. District Office, Uttar Kashi, in his report dated 15th April. 1996, Annexure-3 to the writ petition, that is to say, 6th July, 1942 and a certiorari was issued to correct the record accordingly. District Office, Uttar Kashi, in his report dated 15th April. 1996, Annexure-3 to the writ petition, that is to say, 6th July, 1942 and a certiorari was issued to correct the record accordingly. ( 70 ) IN G. M. Bharat Coking Coal Ltd. v. Shib Kumar Dushad, (2000) 8 SCC 696 , wherein Shib kumar Dushad raised a dispute regarding correctness of the date of birth entered in his service record after his joining the service, the management referred the matter to the Medical Board and accepted the determination of age of the employee by the Board in accordance with the procedure laid down under its instructions and in the light of the aforesaid facts and circumstances. Honble Supreme Court expressed the view that the High Courts Interference under Article 226 with the decision of the management was not called for. In that regard it was observed : "the date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters Courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. In a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the Courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the Court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such a situation cannot be commended for the reason that the Court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialize, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior. " ( 71 ) IT is, thus, evident that the ratio decidendi of all the aforesaid cases, cited in the foregoing paragraph, appears to be is that the burden is heavy on the employee who comes to the Court, with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of clinching nature. Rules, 1974 as amended in 1980 raises a presumption of the correctness of age entered into High School Certificate and the service record, but the presumption is rebuttable one and the record of service may be corrected on the basis of strong evidence. In the present case, the petitioner relied upon the date of his birth recorded in the Nagar Palika, Lucknow, which according to the certificate was 1. 7. 1942. His father was employed in the Legislative Department of the Secretariat, and according to the service record, his father was born on 15. 8. 1927. If the date of birth of the petitioner, i. e. , 1. 7. 1937 recorded in the High School Certificate, and the service book is accepted as correct, then the difference between the date of birth of the petitioner and his father will be only of ten years, which is an impossibility as no child can be born to a person aged about ten years. To salvage the controversy, the Commissioner of the Division, referred the petitioner to the Chief Medical Officer. Lucknow for his medical examination. According to the report of the Chief Medical Officer, the petitioner was about 42 years of age when he examined the petitioner on 27. 9. 1984. The Commissioner of the Division wrote several letters to the State Government to correct the date of birth of the petitioner in the service record. The Secretary. Lucknow for his medical examination. According to the report of the Chief Medical Officer, the petitioner was about 42 years of age when he examined the petitioner on 27. 9. 1984. The Commissioner of the Division wrote several letters to the State Government to correct the date of birth of the petitioner in the service record. The Secretary. Law Department/legal Remembrancer, when his opinion was sought by the State government, opined for relaxation of the Rules. 1974, which was amended in 1980. The revenue Minister, in his letter to the Chief Minister agreed with the official noting of the department and the opinion of the Law Department, by stating that there existed justification to relax the Rules, 1980. by Karmik Vibhag. The Chief Minister raised that matter in the Cabinet, which authorised him to take suitable action, The Chief Minister approved the note of the revenue Minister. The file was received by the Revenue Secretary on 1. 12. 1989 but the file was misplaced and no order could be issued. In the meanwhile, the petitioner has filed the claim petition before the Tribunal. Thereafter, for the first lime, the file saw the light of the day on 11. 10. 1994. Thereafter, the file with official noting, that the claim petition should be contested, was alleged to have been placed before the Chief Minister and the Chief Minister was informed that the Government had been contesting the claim of the petitioner before the Tribunal. Thereafter, the Chief Secretary told the officer concerned that the Chief Minister agreed with the opinion expressed by the Chief Secretary that the case be contested. The record does not indicate that the earlier decision of the Revenue Minister, the Cabinet decision, and the order of the Chief minister to relax the Rules was ever rescinded. Although, according to the date of birth entered into the service record, the petitioner ought to have been retired in the year 1995 but he was allowed to work in the Commis-sionerate of Lucknow Division. Lucknow till 31. 1. 1998. Although, according to the date of birth entered into the service record, the petitioner ought to have been retired in the year 1995 but he was allowed to work in the Commis-sionerate of Lucknow Division. Lucknow till 31. 1. 1998. ( 72 ) A writ in the nature of mandamus could be issued commanding the State of U. P. / Revenue secretary to comply with the decision of the Revenue Minister or the Chief Minister by issuing an executive order, but no useful purposes shall be served by issuing such a direction, as even according to the date of birth claimed by the petitioner, he would have retired on 30. 6. 2000. ( 73 ) FROM the side of the petitioner, clinching evidence was produced before the Tribunal, but the tribunal dismissed the claim petition of the petitioner for two reasons ; firstly that Rules, 1974 which was amended in 1980 attaches finality of the date of birth entered into the High School certificate and the service record, which cannot be corrected, and secondly that no direction can be issued by the Tribunal to the State Government to comply with the orders passed by the revenue Minister and the Chief Minister by issuing a Government Order. The petitioner has successfully rebutted the presumption arising from Rule 2 of the Rules, 1974, amended in the year 1980 by clinching evidence. The difference of ten years between the petitioner and his father, as recorded in the service book, will lead to an absurd proposition because a person of nine, or ten years of age cannot give birth to a child. The petitioner has corroborated his contention that he was born on 1. 7. 1942, with the original birth recorded in the Municipal Board and the Medical Certificate issued by the Chief Medical Officer. The Commissioner of the division, being convinced that the date of birth of the petitioner recorded in the service record was incorrect, repeatedly wrote to the State Government for the correction of his date of birth, which found favour with the law department when it was consulted for by the Revenue Minister and the Chief Minister. ( 74 ) ACCORDING to the date of birth entered into the High School Certificate, the petitioner could be retired on 30. 6. 1995. ( 74 ) ACCORDING to the date of birth entered into the High School Certificate, the petitioner could be retired on 30. 6. 1995. According to him, he came to know about the incorrect entry in the service record in the year 1983 and for the first time, he represented for the correction of his date of birth in the same year, i. e. , twelve years before he could have been retired on the basis of the entry regarding the date of birth entered into his service record. It is not a case where the petitioner has staked a claim for correction of his date of birth in the service record when he was going to retire from service. Besides the above, the Rules, 1974, as amended in the year 1980, does not provide any specific period for making such a representation for correction of the date of birth. ( 75 ) IT has been held in Amrik Singh and Ors. v. Union of India and Ors. AIR 1980 SC 1447 , that if there was any administrative lapse, the concerned employee could not be victimized. Then the central Government has power under Rule 3 of the All India Services (Condition of service-Residuary Matters) Rules. 1960, to relax Rules and Regulations, which was done in the instant case by passing appropriate order. It was further observed : "rule 3 is not arbitrary. The Rule contains guidelines. Government must be satisfied, not subjectively but objectively, that any Rule or Regulation affecting the conditions of service of the member of the All India Services causes undue hardship, then the iniquitous consequence thereof may be relieved against by relaxation of the concerned Rules or Regulations. There must be undue hardship and, further the relaxation must promote the dealing with the case "in a just and equitable manner". These are perfectly sensible guidelines. What is more, there is implicit in the Rule, the compliance with natural justice so that nobody may be adversely affected even by administrative action without a hearing. There is nothing unreasonable, capricious or deprecatory of the rights of anyone in this residuary power vested in the Central Government. " ( 76 ) AS we have indicated hereinabove, there exists Government Order that if the Rule causes hardship to a public servant, the Rule can be relaxed. ( 77 ) EVEN according to the date of birth, i. e. 1. " ( 76 ) AS we have indicated hereinabove, there exists Government Order that if the Rule causes hardship to a public servant, the Rule can be relaxed. ( 77 ) EVEN according to the date of birth, i. e. 1. 7. 1942, which the petitioner claims to be true, he would have been retired on 30. 6. 2000, so the question of his reinstatement does not arise, but we are of the view that the petitioner will be entitled for his salary/emoluments along with other allowances till 30. 6. 2000 when he would have attained the age of superannuation after completing 58 years of service, treating his date of birth as 1. 7. 1942. ( 78 ) IN view of what we have indicated, hereinabove, writ petition succeeds and is allowed. A writ in the nature of certiorari is issued quashing the order dated 26. 7. 1995 passed by U. P. Public services Tribunal, Lucknow, in Claim Petition No. 1063 of 1995 contained in Annexure-18 to the writ petition. Similarly, the order dated 28. 7. 1995 passed by the Commissioner, Lucknow division, Lucknow, contained in Annexure-19 to the writ petition as well as the Government order No. 892/i-IV-95-26584/94 dated July 31, 1994, addressed to the Commissioner contained in Annexure-20 to the writ petition, are also quashed. A writ in the nature of mandamus is issued commanding the opposite parties to pay to the petitioner his salary/ emoluments and other allowances treating his date of birth as 1. 7. 1942 till he attained the age of superannuation accordingly, and fix his pension and pay to him, his post retiral benefits within three months. However, in the circumstances of the case, there will be no order as to costs. .