JUDGMENT : J.J. Munir, J. 1. Parties have exchanged affidavits. 2. Admit. 3. Heard Mr. Surendra Kumar Chaubey, learned Counsel for the petitioner and Mr. Sanjeev Singh, learned Counsel appearing on behalf of respondent Nos.3 and 4. Learned Standing Counsel has been heard on behalf of respondent Nos.1 and 2. 4. This writ petition challenges the order dated 03.10.2022 jointly passed by the Chairman and the Executive Officer of the Nagar Palika Parishad, Kairana, District Shamli, compulsorily retiring the petitioner from service as a Safai Nayak; or at least purporting to do so. 5. The case of petitioner is that he was appointed to the post of a Safai Karmi after his father resigned from the employ of Nagar Palika. The petitioner was appointed vide letter of appointment dated 4.12.1991. He has worked for a long period of time to the satisfaction of his employers and was never subjected to any disciplinary action. It is the petitioner's case that at the time of his appointment, he was required to submit his age and fitness certificates. The petitioner appeared before the Executive Officer of the Nagar Palika way back in the year 1991 and produced his Transfer Certificate relating to Class VII from the school that he had last attended. The Executive Officer asked the petitioner to appear before the Chief Medical Officer for the purpose of determination of his age. The Chief Medical Officer, by a Certificate dated 23.12.1991, that is on record as Annexure No.2, opined the petitioner to be aged about 25 years. In the year 2010, there was a complaint about the petitioner's age and he was required to submit an explanation. The petitioner submitted his explanation on 18.06.2010, wherein he mentioned the facts that had transpired at the time of his appointment. The petitioner submitted an explanation stating therein that he did not play any fraud, but the Chief Executive Officer at the time of his appointment asked him to go to the Chief Medical Officer for a medical examination to estimate his age. The petitioner further said that he would have no objection if his date of birth is determined according to his transfer certificate relating to Class VII. The petitioner's reply dated 18.06.2010 is on record. 6. The petitioner further said that he would have no objection if his date of birth is determined according to his transfer certificate relating to Class VII. The petitioner's reply dated 18.06.2010 is on record. 6. Acting upon the complaint that was before the Nagar Palika in the year 2010, the Executive Officer sought guidance of the Assistant Director, Local Bodies, who opined by his Memo No.462 dated 20.09.2011 that under the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974 (for short ‘the Rules of 1974’), whatever age of the employee had been entered in the service-book at the time of his appointment was immutable and could not be changed. No representation or objection to the recorded date of birth can be entertained. After the aforesaid guidance by the Assistant Director Local Bodies, proceedings against the petitioner were dropped. Now, a complaint has been made by one Deepak Kumar Chandra against the petitioner by approaching the Minister in the concerned Department reiterating the complaint about petitioner's date of birth. In this regard, a show cause notice was issued to the petitioner on 16.09.2022. The petitioner submitted a reply to the show cause with the specific assertion that the complaint has been made on account of animosity. The petitioner had never concealed his date of birth, but his plea based on the pre-High School date of birth was not accepted by the Nagar Palika. It was also pointed out that on an earlier occasion when the same question arose, after the guidance on the issue by the Assistant Director, Local Bodies, the matter was dropped and the petitioner’s date of birth in his service-book was regarded as one that could not be changed. 7. By the impugned order dated 03.10.2022, jointly signed by the Chairman and the Executive Officer of the Nagar Palika Parishad, the petitioner's date of birth, on the basis of his Transfer Certificate from Class VII has been considered to be his correct date of birth, and further, taking note of the fact that the petitioner's younger brother has retired from service, it was held that the petitioner had deliberately not produced the T.C. that he held at the time of his appointment and got his age lesser than what it is recorded on the basis of medical opinion secured from the Chief Medical Officer. It is also recorded that a Transfer Certificate was produced by the petitioner when he sought promotion to the post of Safai Nayak. Now, the Nagar Palika has accepted his date of birth based on the Transfer Certificate from the school relating to his Class VII acknowledging his date of birth as 07.01.1961 instead of 23.12.1966 recorded in his service-book. On that basis, the Nagar Palika, acting through the two Authorities above mentioned, have passed an order queerly described as an order of ‘compulsory retirement’ from service with a direction that all salary drawn by the petitioner after the age of superannuation reckoned from his date of birth going by his T.C. i.e. 07.01.1961, be recovered. 8. Mr. Surendra Kumar Chaubey, learned Counsel for the petitioner has assailed the order impugned, and amongst other things, submitted that the date of birth once entered in the service-book cannot be changed. He submits that whatever date of birth is recorded in the service-book is binding not only upon employee but also upon the employer as well. Just as the employee cannot later on produce evidence about his correct date of birth, the employer also cannot act on complaints or fish out evidence about the employee's date of birth and alter the employee's recorded date of birth in the service record to his disadvantage. The Rule about the immutability of date of birth recorded in the service record, according to the learned Counsel for the petitioner, works both ways, that is to say, for the employer and employee. 9. Mr. Sanjeev Singh, Advocate appearing for the Nagar Palika, on the other hand, states that though it is trite law that the date of birth recorded in the service record is not to be altered, but in a case where the employee has played fraud, nothing prevents the employer from correcting the date of birth. He submits that there is an admission by the petitioner that his date of birth recorded in the transfer certificate from his school relating to Class VII is 07.06.1961 and not what is entered in the service record on the basis of medical examination done by the Chief Medical Officer. According to Mr. Sanjeev Singh, there is absolutely no impediment in a case of this kind where there is patent fraud and also an acceptance on the petitioner's part for a correction of his date of birth. Mr. According to Mr. Sanjeev Singh, there is absolutely no impediment in a case of this kind where there is patent fraud and also an acceptance on the petitioner's part for a correction of his date of birth. Mr. Sanjeev Singh, however, accepts that the order impugned should not have been characterized as one of compulsory retirement. It is an order declaring the petitioner to have retired upon attaining the age of superannuation and asking him to go home. 10. Upon hearing learned Counsel for the parties, this Court finds that there is no denying the fact that the petitioner's date of birth admittedly recorded in his transfer certificate relating to Class VII is 07.01.1961. However, at the time of the petitioner's appointment, he was sent for his medical examination to determine his age to the Chief Medical Officer. The Chief Medical Officer determined his age estimating it to be 25 years and on that basis, the petitioner's date of birth in his service-book has been recorded as 23.12.1966 i.e. the date of birth which is recorded in the petitioner's service-book way back on 15.07.1992. Now, the question is: Can the petitioner's age recorded in his transfer certificate relating to Class VII be looked into in order to hold an old entry relating to his age in the service-book wrong; or one based on fraud in this regard? The Rules of 1974 are a short statutory instrument and read as under:- “GOVERNMENT OF UTTAR PRADESH NIYUKTI ANUBHAG (4) In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of notification no. 41/2/69 Niyukti (4), dated May 28, 1974; No. 41/2/69-Niyukti (4) May 28, 1974 In exercise of the powers under the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules: Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974. 1. Short title and commencement:-(1) These rules may be called the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974(2) They shall come into force at once. 2. 1. Short title and commencement:-(1) These rules may be called the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974(2) They shall come into force at once. 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, or where 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 correct-ion of such date or age in any circumstances whatsoever. 3. Overriding effect.–These rules shall have effect, notwithstanding anything contrary contained in the relevant service rules or orders. By order, GHULAM HUSAIN, Ayukt Evam Sachiv.” 11. By the first amendment to the Rules made in the year 1980, it was provided 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, 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].” 12. Apparently, the first amendment does not apply to the petitioner's case because he never passed his High School either before or during service. When the petitioner entered service, he was not a matriculate and had not passed his High School or an equivalent examination. Apparently, the first amendment does not apply to the petitioner's case because he never passed his High School either before or during service. When the petitioner entered service, he was not a matriculate and had not passed his High School or an equivalent examination. A perusal of Rule 2 of the Rules of 1974 makes it pellucid that all that is relevant for the purpose of recording a government servant's date of birth is his High School Certificate or a certificate of an equivalent examination and in a case, where the government servant has not passed any such examination, the date of birth or age recorded in his service-book at the time of entry into service shall be deemed to be correct. A perusal of the Rules of 1974 would show that any certificate from an educational institutions below the Grade of High School is not at all relevant to determine a government servant's age. It is perhaps for this reason that when the petitioner appeared before the Appointing Authority at the time of appointment, and as he says, produced his transfer certificate, he was directed to appear for his medical examination before the Chief Medical Officer. Apparently, when any school certification below the High School or an equivalent examination is not relevant to determine the employee's age, the Appointing Authority would not have looked into a transfer certificate relating to Class VII. These are circumstances which show that what the petitioner asserts is correct. Even if it was incorrect, the transfer certificate relating to Class VII is not at all relevant to determine the petitioner's age. Now, what remains relevant about the petitioner's age is the entry at the time of his appointment recorded in the service-book and nothing else. The said entry is immutable and cannot be imperilled by sundry complaints from busy bodies, or may be sworn enemies. A government servant's age of retirement cannot be subjected to perpetual uncertainty on account of disgruntled complainants questioning his date of birth and laying complaints to the Appointing Authority, saying that the government servant's recorded date of birth in the service record is incorrect. If that were permitted, it would introduce a pernicious uncertainty about the tenure of government servants and much affect their efficiency. 13. If that were permitted, it would introduce a pernicious uncertainty about the tenure of government servants and much affect their efficiency. 13. Quite apart, Rule 3 of Rules of 1974 indicate that the said Rule gives the 1974 Rules overriding effect over any other service rules or orders. Therefore, what Rule 2 provides has to be given its fullest effect. The result is that the petitioner's date of birth recorded in his service-book cannot be questioned. It cannot be questioned by the petitioner; and likewise, it cannot be questioned by the employers as well. This Court, therefore, is of opinion that the impugned order dated 03.10.2022 is manifestly illegal and without jurisdiction. 14. The view that this Court takes is buttressed by the opinion of a Division Bench of this Court in Mohan Singh v. U.P. Rajya Vidyut Utpadan Ltd. and others, 2012 SCC OnLine All 28, where Rule 2 of the Rules of 1974 concerning a change to the recorded date of birth in the service-book by a non-matriculate was considered by their Lordships. In Mohan Singh (supra), it was held: “12. From a perusal of the above Rule, it transpires that if a person enters into service after passing the High School examination, then the date of birth recorded in the High School certificate shall be deemed to be his correct date of birth. However, in case, the employee has entered into service before passing the High School examination, then the date of birth recorded in the service book shall be deemed to be his correct date of birth. The said Rule also provides that no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. Thus, in relation to correction of date of birth, a legal fiction has been made which means that the date of birth recorded in either of the circumstances referred to under Rule 2 of the Rules of 1974 shall be deemed to be correct for all purposes particularly for the purpose of determining the age of retirement. The effect of deeming provision/legal fiction has been considered time and again. The effect of deeming provision/legal fiction has been considered time and again. The Apex Court in the case of Sant Lal Gupta v. Modern Co-operative Group Housing Society Ltd., (2010) 13 SCC 336 , has observed as under: “…..It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist.…” 13. Further reference may be made to the decision of the Apex Court in Manorey alias Manohar v. Board of Revenue (U.P.), 2003 (51) ALR 341 (SC). 14. Taking note of the dictum of the Apex Court as well as Rule 2 of the Rules of 1974, it is abundantly clear that if a person has entered into service without passing the High School examination, then the date of birth recorded in his service book shall be deemed to be correct and in case the employee has entered into service after passing the High School examination, the date of birth recorded in the High School certificate shall be deemed to be correct.” 15. In the result, this petition succeeds and is allowed with costs. The impugned order dated 3.10.2022, jointly passed by the Chairman and the Executive Officer of the Nagar Palika Parishad, Kairana, District Shamli is hereby quashed. 16. The petitioner shall be reinstated in service forthwith and permitted to continue on the basis of his date of birth recorded in his service-book. He shall be paid all arrears of salary which have remained unpaid during this period of time within a month. Regular payment of salary shall be resumed forthwith. 17. Let this order be communicated to the Chariman of Nagar Palika Parishad, Kairana, Shamli and the Executive Officer of the Nagar Palika Parishad, Kairana, Shamli by the Registrar (Compliance).