S.B. Wad, J.
(1) The petitioner is an illiterate person but knows to sign his signatures in Hindi. On 13-6-1949 he applied to the Superintendent, Kilokri, .Sewage Pumping Station under Delhi Joint Water and Sewage Board, for appointment as Beldar. The application was made in Hindi. Its translation reads as follows :
'HAVINGlearnt that there is a vacant post of Beldar I most respectfully pray that you may consider my poverty and appoint me to the said post.'
On the same date he was appointed as a Beldar. The office endorsement to that effect is made on the application itself. It may be noted that there was no prescribed application form. The application in Hindi is written by somebody else and is signed by the petitioner. Three months after his appointment a service full in the prescribed form was prepared. A service roll is; required to be maintained for inferior servants for whom no service books are maintained. In the prescribed form against the column 'date of birth of Christian Era as nearly as can be ascertained' '16th June, 1982' was written in figures and in words. In 1951 the then Superintendent, Sewage Disposal Works, Delhi, E.A. Marfatia addressed a letter in a proforma to the Sub-Asstt. Surgeon, Jangpura Dispensary, Jangpura, Delhi, staling that the petitioner was an employee of the Delhi Joint Water and. Sewage Board, New Delhi, and directing the petitioner to appear before the Sub-Assistant Surgeon ' for favor of examination and certifying date of his birth by Christian era as nearly as can be ascertained.' On the same letter in the proforma endorsement, Sub-Assistant Surgeon recorded 'I do hereby certify that I examined Ram Dev of Sewage Disposal Works. His date of birth by Christian era as nearly as can be ascertained is June 1927.' This certificate of the Sub-Assistant Surgeon, Jangpura was received by the said Superintendent of the Sewage Disposal Works on 15-6-1951. On September 29, 1977 the petitioner informed the Superintending Engineer, Kilokri Pumping Station that his date of birth has been wrongly recorded in the seniority list of Class IT- employees. He contended that instead of 1927 the year of birth is shown as 1922. He further stated that according to the medical examination report referred to above the year of his birth is 1927 and that the said certificate was in the service book of the petitioner. He requested for the correction of the year of birth. This, and the subsequent representations to the higher authorities, were turned down. On 6-4-1981 he was called upon to produce birth certificate from Municipal Committee or School Leaving Certificate or a certificate of any hospital. This was in response to the further repre sentation made by him to the Chief Project Officer and Maintenance Engineer, Water Supply and Sewage Disposal Undertaking, Municipal Corporation of Delhi. It is a matter of common knowledge that the functions of the said Board were taken over by the Municipal Corporation of Delhi as the successor to the said Board and the petitioner had become an employee of the Municipal Corporation of Delhi. In reply to the said letter the petitioner informed that he relied on the medical certificate which was already on the service records and it was sufficient proof in regard to his age. He also enclosed a photostate copy of the certificates. On 25-8-1981 the request for correctionichange of birth was rejected by the Administrative Officer, Water Supply and Sewage Disposal Undertaking of the Municipal Corporation of Delhi. (Annexure'J'). The petitioner served a legal notice as he was not getting any relief. On 9-3-1982 he was informed by the respondents that he was due for retirement on 30-6-1982 (Annexure 'L'). The retirement age is sixty year for the category of employees to which the petitioner belongs. The petitioner has challenged the legality of the orders dated 25-84981, 9-3-82, 7-7-80 and 19-9-79 (Annexures J', 'L', 'F & 'D'), and has prayed for quashing the said orders. He has further asked for a declaration that the year of his birth is 1927 and not 1922. After the admission of the petition the court did not grant the stay of the operation of the order of retirement on 30-6-1982 but expedited the hearing of the writ petition itself.
(2) The counsel for the petitioner contends that normally a school leaving certificate or a metriculation is accepted as a good evidence for determining the date of birth but the petitioner has never gone to school and, thereforee, he could not produce any such certificate. The petitioner's application for appointment is one line application wherein he has not stated his date of bir.th. No doubt the petitioner had signed the service roll in which his year of birth was shown as 1922 but the submission of the counsel is that more importance cannot be attached to the said signature of the petitioner regarding the correctness of the year of birth as the petitioner is an illiterate person. The respondents have not denied in the counter-affidavit that the petitioner is not an illiterate person but have merely stated that for want of knowledge nothing can be said about the said assertion. The counsel them contends that it was practice to send an employee for medical examination for ascertainment of the date of birth as' nearly as possible, where no other evidence was available. The counsel argues that his date of birth was so ascertained in 1951 and the medical certificate was on the record of the respondents. It is then stated that in spite of the medical certificate | on record the year of birth was not corrected. He relies |on the decision reported in Jiwan Kishore v. Delhi Transport Corporation and another, 1980 (2) S.L.R. 513 wherein it has been held that the examination by a Doctor |Medical Practitioner is a most scientific method of asicertaining the date of birth. He relies on the decision of the High Court of Himachal Pradesh reported in Shri Nanak' Chand Vaidya v. State of Himachal Pradesh and others, 1976 (1) S.L.R. 402 and submits that he has a statutory right to continue in the employment till the completion of 60 years and the right cannot be taken away by any administrative instructions. The statutory right cannot be denied for delay in the request for correction|change of date of birth.
(3) The counsel for the respondents assails the said submissions. He contends that according to the Government instructions the entry of the date of birth in the service roll is final and can be changed only in exceptional circumstances. The representation for the change has to be made beyond five years from the date of the superannuation. The petitioner had moved the authorities within five years of his date of superannuation calculated on the basis of the birth of year being 1922. He relies upon Ministry of Home Affairs O.M. No. F. 911!71-Ests.(A) dated 17-11-1962, administrative instructions of the Municipal Corporation of Delhi No. 41/B.E.S.(M). dated 18-6-1969 and Rule 79(2) of the General Financial Rules, 1976. The counsel also submits that a character certiflicate was issued to the petitioner in 1959 on his own request in which his date of birth, as recorded, in the service roll was mentioned. He strongly submits that the petitioner was confirmed and promoted on the basis of the original date of birth but the petitioner did not make any rep'resentation till 1977 against the original date of birth shown in the service roll. He was, thereforee, stopped from raising the question when his retirement was nearing . As for the medical certificate the counter affidavit of the respondents asserted : 'The petitioner was only sent to the Medical Officer for his medical check up and to get a certificate of medical fitness. The doctor can only give his opinion as to the approximate age of the person examined by him, but he cannot ascertain the date of birth of the person examined by him. Certificate of a doctor regarding his age is only an opinion and cannot be considered to be authentic for the actual date of birth of a person. In the instant case, the date of birth had already been recorded on the basis as disclosed by the petitioner at the time of starting the service book. All contentions contrary to what is recorded in the service book are after-thought and motivated. No reliance can be placed on the certificate relied upon by the petitioner.' The genuiness of the medical certificate was, however, not doubted in the counter affidavit. At the time of the hearing, however, the counsel for the respondent argued that there was no date at the ^ top of the letter, nor was the name of the petitioner mentioned. The letter| certificate did 'not bear any outward number, nor was there any seal of the office. He also contends that the certificate was not by the Board of Doctors but by a single Doctor and cannot be relied upon. He then submits that the Doctor has not stated any reasons and such a medical certificate is not reliable. He has relied upon Moti Lal v. Emperor : AIR1939All701 . Nathu and another v. Emperor, A.T.R. 1931 Lah 401 and Laimayum Tonjou Singh v. Manipur Administration. Air 1962 Man 5. He distinguishes the Supreme Court judgment reported in 1980 (2) S.L.R. 513 on the ground that the medical examination in the said decision was done by the Board of Doctors and also on the ground that the Supreme Court decision was virtually a consent order. The counsel for the petitioner has repudiated the respondents' submission regarding the genuineness of the medical certificate. He submits that the medical certificate was issued in 1951 and the Government's own omissions in regard to the date or office number or seal cannot be utilised by the respondents for challenging the genuineness of the said certificate after 30 years. This was prohibited by Section 90 of the Evidence Act.
(4) For appreciating the submissions of the parties, the relevant provisions of law and administrative instructions may now be noted. Rule 79 of the General Financial Rules reads as follows:
'79.Date of Birth. (1) Every person newly appointed to a service or a post under Government shall at the time of the appointment declare the date of birth by the Christian era with as far as possible confirmatory documentary evidence such as a metriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date shall be given. (2). The actual date or the assumed date determined under Rules 80 shall be recorded in the history of service, service book or any other record that may be kept in respect of the Government servant's service under Government and, once recorded, it cannot be altered. except in the case of a clerical error, without the previous orders of a Department of the Central Government or an Administrator.'
O.M. No. F. 9Ul71-Ests.(A) dated 17-11-1962 of the Ministry of Home Affairs reads as follows:
'REQUESTSfor alteration of date of birth should not be entertained after the preparation of the service books of the Government servants concerned, and in any event not later than the completion of the probation period or declaration of quasi-permanacy, whichever is earlier. The date of birth may, however, be altered at a later stage by a competent authority if that authdrity is satisfied that a bonafide clerical mistake has been committed and that it should be rectified. Efforts should, however, be made to settle the matter withim the period stated above.'
Circular No. 41lGES(P). dated 18th June, 1969 of the Municipal Corporation of Delhi (General Establishment Section): Circular It has been observed that requests are being received by the administration from the Municipal employees for alteration of their date of birth at the fag end of their service. especially when the employee concerned is to be retired in the immediate near future. In certain cases, the employees concerned were subjected to a Medical Board for the assessment or their date of birth in similar circumstances. The procedure is not only incorrect, but is also contrary to the provisions of Gfr 79 and 80, This apart from being dangerous practice tend to create encouragement amongst the affected employees the habit of manouvering to false and concocted grounds with the simple object of being retamed in. his service further It is once again emphasised that request for alteration of date of birth should not be entertained after the preparation of service book of the employee concerned and in any case not later than the completion of probation period or declaration of Quasi Permanency, whichever be earlier. The date of birth may, however, be altered at a later stage under order of an officer not below the status of Deputy Commissioner provided that the officer is satisfied that a bonafide clerical mistake had been committed and it should be rectified. No requests for alteration of date of birth will be entertained within 5 years of the date of retirement of the employee concerned. These instructions will be rigidly observed by heads of department and any departure from these instructions would be viewed seriously. These instructions will also be applicable to the persons of Delhi Water Supply & Sewage Disposal Undertaking. Sd|- (J.N. SINGH) COMMISSIONER.'
(5) Rule 79(2) enjoins that once a date of birth is recorded in the service book it cannot be altered except in case of a clerical error without the previous orders of the department. The 1962 O.M. 0f the Ministry of Home Affairs clarified that if there was any bonafide clerical mistake it can be corrected at a subsequent stage. But in other cases, it is probation that the corrections cannot be made beyond the period of probation or declaration of quasi permanency. The 1969 circular of Municipal Corporation prohibited the practice of ascertainment of the date of birth by medical examination. It also laid down that no request for alteration of the date of birth would be entertained within live years of the date of rerirementt of the employee concerned. The question of the limitation of time for correction of the date of birth as laid down by the 1962 O.M. came for direct determination by the Division Bench of the Himachal Pradesh High Court in Shri Nanak Chand Vaidya v. State of Himachal Pradesh and others, 1976 (1) S.L.R. 402. The Division Bench held .that the said O.M. was ultra vires. The reasons were as follows:.
'AGovernment servant is entitled to show that the entry made in his service record does not reresent his true date of birth. That is a right which flows from his light to continue in service until he reaches the age of superannuation. He is entitled to show that the record entry, which determines the date on which he attains the age of superannuation, does not reflect the true position and that on its misleading basis he is liable to be retired before he in fact attains the age of superannuation. Shortly put, the erroneous entry will abridge the period during which he is entitled to continue in service. thereforee, involved in his right to continue in service is his right to show that the recorded entry of his date of birth is erroneous. If on application made by the Government servant, the Government finds that there is substance in the claim it is bound to give effect to the claim and alter the relevant entry in the service record. If the entry is found to be erroneous it must, in all fairness to the Government servant, be corrected. When such application should be entertained is a matter relating to procedure. A provision determaining when the application should be entertained has the effect of limiting the exercise of the right of the Government servant to show that the recorded entry is erroneous. Such limit can be imposed only by a provision having the force of law. If does not have the force of law and is merely an executive direction without sanction of law, it cannot affect the exercise of the Government servant's right to show that the recorded entry is erroneous. Now, the Government of India decision, on which the respondents rely, does not have the status of a statutory rule, and, thereforee, cannot defeat the legal right of the Government servant metioned above. So far as it affects the determination of the rule date of birth it must be considered ultra virus for the reasons set out above.'
(6) The court further held that the right of the petitioner to continue in the service until he truly reaches the age of superannuation places an obligation on the Government to determine his true date of birth unless such an enquiry is barred by law by any provision having the force of law. The relavant portion of the 1969 circular is exactly similar to the said O.M. Following the decision of the D.B. of Himachal Pradesh High Court the same has to be held ultra vires. The 1969 circular further provides that no request for alteration of date of birth will be entertained within five years of the date of retirement of the employee concerned. The said five years period would have started in June, 1977 for the petitioner but he made the representation in September, 1977. The counsel for the respondents argues that the petitioner falls withim the mischief of the said circular. The submission cannot be accepted. The 1969 circular is only an administrative circular and does not have the force of law. The petitioner had a stutory right to continue in the service up to the age of sixty. The limitation of five years imposed by 1969 circular is ultra virus and bad in law as no administrative circular can take away the right given to the petitioner by law. The Division Bench. judgment referred to above applies equally to this part of 1969 circular. The respondent submissions in regard to the finality of the date of birth mentioned in the service roll and the delay in making the representation against the same are, thereforee, rejected.
(7) The first part of the 1969 circular of the Municipal Corporation of Delhi acknowledge the practice of ascertainment of the date of birth by medical examination. Even assuming that the circular oft 18-6-1969 can be acted upon, it will have only prospective operation and not retrospective operation. The medical certificate in favor of the petitioner was issued as early a' 1951. The effect of the said circular will have, thereforee, be examined on the basis of the practice then prevalent, ln Jiwan Kishore v. Delhi Transport Corpn. & Anr. 1980 (2) S.L.R. 513 the Supreme Court held .that the assesstment of the age by the medical board, being a scientific fixation of age, is to be preferred where the other evidence is flagrantly conflicting. What respect I hold that the same principle applies where no other evidence is available to determine the correct date of birth by an employee. Medical examination is no doubt a scientific method for deciding the age in absence of any other evidence. The petitioner is an illiterate person and, thereforee. no certificate could have been produced from the school. He was unable to produce any certificate from the hospital or from the municipal authorities. The petitioner's claim for the change of the date of birth is not rejected by the Corporation On the ground that 'the petitioner has deliberately failed to produce the hospital certificate or the certificate from the municipal authorities. Again his claim is not rejected on the ground that the medical certificate is not genuine. The rtspondent have stated in the counter-affidavit that the petitioner was sent for the general medical check up and the certificate was received from the Assistant Surgeon on 15-6-1951 beadring the initials of the Superintendent. Sewage Disposal Works. The fact that the petitioner was sent to the Medical Officer is admitted by the respondent. The signature of?' the Medical Officer is not doubted by the respondents. So also the initials of the Superintendent receiving the Medical certificate is not doubted. In face , these submissions in the counter-affidavit, the oral arguments advanced by the counsel for the respondents, suspecting the genuineness of the document, cannot be accepted. I have quoted the proforma of the certificate earlier. This is in two parts. The first part is a letter addressed to the Medical Officer and the second part is the certificate of the Medical Officer. In the first part the Medical Officer was requested to certify the date of birth 'as nearly as can be ascertained'. This is the exact form in which the entry in the service roll is required to be made. The Medical Officer has not stated the actual date but has only given the month and year and that also 'as nearly as can be ascertained'. It may also be noted that the said Medical Certificate is a document more than 30 years old. Considering all the evidence and the circumstances, I am of the opinion that the Medical Certificate is genuine and its contents are correct.
(8) It is true, as stated by the counsel for the respondents, that no reasons are stated by the Medical Officer in support of his report. But it must be remembered that the certificate was called by the respondents themselves in a proforma which does not require any reasons to be stated. Counsel for the respondent has referred to some criminal cases where it is held that a medical officer should state the reasons. These are not the cases of the ascertainment of the date of birth 'as nearly as can be ascertained.' The requirements of criminal law in cases like kidnapping are quite different. I do not find any relevance of the said cases here.
(9) The counsel for the respondents has relied upon the certificate of character issued to the petitioner in 1959 in which the date mentioned in die service roll is stated. He also cites the circumstances such as confirmation and promotions of the petitioner on the basis of the said date. He emphatically submits that these facts operate, as an estoppel because before 1977 he did not make any complaint about the said date of birth. The petitioner is an illiterate person. It cannot be presumed that the said facts would show a deliberate and intelligent acquiesence in the date of birth as contended by the respondents. The confirmation and seniority do not depend on the age of an employee or the date of birth. They are decided on the basis of date of joining the service. It cannot thereforee be said that the petitioner has derived any advantage in matters of confirmation or seniority by virtue of the date mentioned in the service roll. A similar plea was turned down in the D.B. judgment of the Himachal Pradesh High Court. mentioned above.
(10) I have already held that the medical certificate, which from the beginning, is in the file of the service roll is not a fake or forged document. But, since the date in the medical certificate was not acted upon and the petitioner made the grievance 26 years after the date of the said certificate, I am of the opinion that some further evidence is advisable in the matter. Although I have held that no period of limitation can be laid down by an executive order, one cannot overlook the object behind the said executive orders. Attempts to change date of birth on the eve of retirement are even made by the people who occupy much higher and senior .position in public life. Prevention of this mal-practice is a laudable object. I would, thereforee, direct that the respondents should appoint a medical board of three Doctors for examining the petitioner again. The Board should report as to whether they find any infirmity in the date of birth recorded in the medical certificate, namely, June 1927. In case the Board differs from the said Medical Certificate it should record the reasons for doing so and the tests carried out by the Board for arriving at their conclusion. Within one month from the receipt of the report from the Board, the respondents shall take their decision and communicate the same to the petitioner. Since there is no other evidence, the petitioner has relied only on the medical certificate. Reexamination of the issue by the board of three Doctors and the requirements of stating reason should also satisfy the requirement of the respondents in matters of ascertainment of the date of birth. Ascertained of date of birth through medical examination was recognised practice in 1951. The present direction would be in keeping with the said practice. The Supreme Court has held that medical examination by Board is a more scientific method. In arriving at a final decision, the respondents will have due consideration to this observation of the Supreme Court.
(11) The impugned orders of the respondents are, thereforee, set aside with the direction for re-examination of the issue through a Medical Board. The petition is allowed with these directions. There shall be no order as to costs.