JUDGMENT By the Court.—Heard learned Standing Counsel for the respondents-appellants and Sri Ram Mohan, learned Counsel for the respondent. 2. With the consent of the parties, this special appeal is being disposed of at this stage without calling for any counter affidavit specifically in view of the order proposed to be passed today. 3. This is an intra Court appeal against the judgment and order passed by the learned Single Judge dated 20th December, 2007, whereby the writ petition filed by the respondent has been allowed and the impugned notice dated 17th April, 2003 has been quashed holding that the petitioner is entitled to continue in service and to receive salary treating his date of birth as 31st May, 1995, it has also been provided that he would be entitled to his retiral benefits on that basis. State of U.P., not being satisfied by the direction so issued, has filed this appeal. 4. The brief facts necessary for deciding the special appeal are that the writ petitioner was initially appointed as a Tabulator on 7th February, 1967 in the Consolidation Department and subsequently he was granted promotions on next higher posts. While working as Lekhpal, he was retired treating his date of birth as 3rd December, 1943. This led to the filing of the writ petition No. 38857 of 2003, which has been allowed as indicated above. 5. The case of the petitioner was that on receipt of the notice of retirement, he came to know that his date of birth had been wrongly recorded as 3rd December, 1943 in place of 31st May, 1945 in his service book and on that basis the respondents were going to retire him after completion of 58 years’ service. He made an application on 13th October, 2001 before the District Deputy Director of Consolidation for correction of his date of birth as 31st May, 1945, as per the High School Certificate. On the directions of the District Deputy Director of Consolidation, a letter was written to the Settlement Officer Consolidation, Azamgarh on 22nd December, 2001 for clarification qua the date of birth of the petitioner as recorded in his service book. On the directions of the District Deputy Director of Consolidation, a letter was written to the Settlement Officer Consolidation, Azamgarh on 22nd December, 2001 for clarification qua the date of birth of the petitioner as recorded in his service book. After various verifications, the Settlement Officer Consolidation, Maharajganj submitted his report on 7th March, 2002 stating therein that the correct date of birth of the petitioner was 31st May, 1945 and he accordingly sent a letter to the Consolidation Commissioner U.P. Lucknow dated 16th August, 2002 for approval of the correction of the date of birth of the petitioner as 31st May, 1945 in place of 3rd December, 1943. Subsequently an order was passed by the Consolidation Commissioner, U.P. Lucknow dated 17th April, 2003. The Consolidation Commissioner took the view that date of birth of the petitioner-respondent as recorded in the service book is 3rd December, 1943 be accepted as correct date of birth. Against the said order of the Consolidation Commissioner, writ petition No. 38857 of 2003; Krishna Murari Lal v. State of U.P. and others. 6. The learned Single Judge summoned the original service book, G.P.F. Papers and the seniority list etc. vide order dated 14th August, 2007. The learned Single Judge after examination of records held that initially the date of birth of the petitioner was entered as 3rd December, 1943 in the service book, subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. The learned Single Judge while allowing the writ petition has observed as follows : “In pursuance thereof, the records have been produced and it transpires that though earlier his date of birth was entered as 3.12.1943 in the service book, subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. In the seniority list and also in the G.P.F. papers the same date of birth is reflected. It is also not disputed that the petitioner had appeared in the High School Examination prior to joining the service where his date of birth is also entered as 31.5.1945, therefore, the contention of the learned Standing Counsel that the petitioner is estopped from challenging his date of birth entered in the service record on the eve of his retirement, cannot be maintained. Once an incumbent had a High School certificate before joining the service, the said date of birth shall be taken to be final. The petitioner had no opportunity to challenge the entry because in all his papers including seniority list etc., the same date of birth as entered in his High School certificate was reflected and it is evident that the aforesaid anomaly has come to his notice only at the time of his retirement.” 7. The learned Counsel for the appellants challenging the order of the learned Single Judge contends that before the learned Single Judge it was stated by the State-authorities that the date of birth of the petitioner in the service book was 3rd December, 1943. The High School certificate of the year 1959 wherein the petitioner had failed, was not relevant. The appellants justify the order of Consolidation Commissioner contending that the date of birth of the petitioner recorded in the service book as 3rd December, 1943 has to be treated to be his correct date of birth. 8. Sri Ram Mohan, learned Counsel for the respondent-petitioner submits that date of birth which was mentioned in service book i.e. 3rd December, 1943 was corrected by red ink and initialled by the Settlement Officer of Consolidation and 31st May, 1945 was recorded in the service book, it was as per the date of birth as mentioned in the High School certificate. He submits that in all other relevant papers, his date of birth has been mentioned as 31st May, 1945. The learned Single Judge, after summoning and examining the same, found that the correct date of birth of the petitioner was 31st May, 1945. Therefore, the order of the Hon’ble Single Judge be not interfered with. 9. We have considered the submissions made by the learned Counsel for the parties and have perused the records. 10. The case of the appellant before the learned Single Judge as well as before the Consolidation Commissioner was that at the time of entry into service, his date of birth was recorded as 3rd December, 1943. The learned Single Judge has also recorded as a finding of fact that initially his date of birth was entered as 3.12.1943 in the service book and subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. Said finding of the learned Single Judge has been quoted above. 11. The learned Single Judge has also recorded as a finding of fact that initially his date of birth was entered as 3.12.1943 in the service book and subsequently it was corrected by red ink and initialled by the Settlement Officer of Consolidation. Said finding of the learned Single Judge has been quoted above. 11. We proceed with the appeal accepting the finding recorded by the learned Single Judge that date of birth of the petitioner was initially recorded as 3rd December, 1943, and that the same was subsequently corrected in red ink as 31st May, 1945. 12. For determining the date of birth of a Government servant, Rules have been framed, namely, U.P. Recruitment to Services Determination of Date of Birth Rules, 1974. 13. Rule-3 of Rules, 1974 reads as follows : “(3) The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a Government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into 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 superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.” 14. From the perusal of the said Rule-3, it is clear that date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination or where a Government servant has not passed any such examination as aforesaid, the date of birth recorded in his service at the time of his entry into Government service shall be deemed to be his correct date of birth. 15. The aforesaid rule clearly indicates that date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination or where a Government servant has not passed such examination, the date of birth recorded in his service at the time of his entry into Government service has to be treated as correct date of birth of the Government servant. In the facts of the present case, it is admitted on record that the petitioner-respondent has not passed the High School. 16. It is admitted to the parties that petitioner had appeared in High School examination in the year 1959, he failed. Rule-3 only refers to the High School or equivalent examination certificate, only where the Government servant has passed the examination. 17. Thus, the date of birth recorded in the certificate of the year 1959, when he had failed in the High School does not fall within Rule-3 and no benefit can be drawn by the petitioner on the basis thereof. According to the Rule-3 the date of birth of such a Government servant as recorded in the service book at the time of entry into service has to be treated to be the correct date of birth. Even if any correction was made in the date of birth by red ink to read as 31st May, 1945 by Settlement Officer of Consolidation, said change was unauthorised and contrary to the Statutory Rules. The Consolidation Commissioner has rightly taken the view that date of birth of the petitioner, which was initially entered into service i.e. 3rd December, 1943 has to be accepted. 18. The learned Single Judge has noticed that initially the date of birth of the petitioner was recorded as 3rd December, 1943 in his service book. An error has been committed in allowing the writ petition without considering the relevant statutory provisions of U.P. Recruitment to Services Determination of Date of Birth Rules, 1974, which are relevant and applicable qua determination of date of birth of a Government servant. 19. In view of the aforesaid, the judgment and order of the learned Single Judge allowing the writ petition filed by the petitioner cannot be legally sustained. We do not find any error in the order passed by the Consolidation Commissioner by which it was held that the date of birth of the petitioner-respondent shall be treated as 3rd December, 1943, as was initially entered in his service book. 20. In view of the aforesaid, we set aside the judgment and order passed by the learned Single Judge dated 20th December, 2007, we hold that the correct date of birth of the petitioner shall be treated as 3rd December, 1943. 20. In view of the aforesaid, we set aside the judgment and order passed by the learned Single Judge dated 20th December, 2007, we hold that the correct date of birth of the petitioner shall be treated as 3rd December, 1943. The appellant shall pay the post retiral benefits of the petitioner according to his date of birth as 3rd December, 1943. In view of the fact that the petitioner has continued to work till December, 2003, the salary if any already paid to him shall not be recovered. Post retiral benefits of the petitioner shall be fixed according to his date of birth as 3rd December, 1943 and the appellants shall take steps for finalizing the post retiral benefits of the petitioner accordingly, preferably within three months from the date a certified copy of this order is filed before the authority concerned. On the delayed payment of gratuity/retiral benefits, petitioner shall be entitled to 6% interest from the date, it was due till the date of actual payment. 21. The special appeal is allowed subject to the observations made above. ————