Asthana, J.:— The plaintiff appellant Smt. Kamla Jaiswal was serving in the year 1969 as Assistant Attendance Officer in the Education Department of the Nagar-Mahapalika of Allahabad. She had joined service in the then Municipal Board of Allahabad as an English teacher in the year 1932 or 1933. When she was originally employed she was only a certificate holder of passing Vernacular Final Examination. In 1935 she passed the Admission Examination of the Banaras Hindu University which is recognised as equivalent to the High School Examination of the U.P Board of High School and Intermediate Education. She was then promoted and it appears she passed further higher examinations and obtained Master's Degree of the University and eventually came to occupy comparatively senior posts in the department. By a letter dated 10-4-1969 received by her on 11-4-1969 she was informed that having attained the age of superannuation she was retired from service. She protested and made representations to the appropriate authorities of the Mahapalika bringing to their notice that according to the date of birth entered in her Admission Examination certificate as 6-4-1915 she was entitled to remain in service till 6-4-1975 on which date she would have attained the age of sixty years which is the prescribed age of retirement of the Mahapalika's servants. Her representations proved fruitless. She then instituted the suit giving rise to this appeal against the Nagar Mahapalika, Allahabad, in the court of the Civil Judge for a declaration that the order dated 10-4-1969 communicated to her on 11-4-1969 of the Administrator of the Nagar Mahapalika was ultra vires, illegal and ineffective and invalid in law, being in violation of the principles of natural justice and as such the plaintiff legally and factually continued and would be deemed to have continued in her post as Assistant Attendance Officer of the Girls section of the Education Department of the Nagar Mahapalika. Further relief for injunction was sought restraining the defendant for superannuating the plaintiff till 6-4-1975 and from interfering with her work as Assistant Attendance Officer in the Girls Section. The cause of action as pleaded in the plaint was substantially based on Rule 47 of the U.P Nagar Mahapalika Sewa Niyamawali 1962 which required that for the purpose of retirement of a Mahapalika servant the date of birth as recorded in the High School Examination certificate or in the certificate of an examination recognised by Government as equivalent to that, will be the determining factor. It was pleaded that the defendant was bound by the rule and having acted in the breach of the mandatory rule the order retiring her on the alleged superannuation was void and ineffective. It is, I think, unnecessary to mention here other facts pleaded as nothing substantial will turn on them in this appeal.

2. The suit was contested on behalf of the Nagar Mahapalika mainly on the ground that the plaintiff when she joined the service of the then Municipal Board of Allahabad in 1932 had declared her date of birth as 6-4-1909 and her attempt in 1965 to have the date of birth changed to 6-4-1915 proved futile as the then Mukhya Nagar Adhikari had rejected her request for making correction in her service record and thereafter she did not take up the matter to higher authorities. It was pleaded that she was bound by her declaration and it was open to the defendant to retire her she having attained the age of superannuation on 6-4-1969. This was then the main defence.

3. The learned Civil Judge dismissed the plaintiff's suit on the finding that she had attained the age of sixty years on 6-4-1969 and was rightly retired from service by the Nagar Mahapalika. The learned Judge was greatly influenced by his finding that she had herself given a declaration of her age in 1932 when she joined service that her date of birth was 6-4-1909 and subsequently she did not move the higher authorities when her prayer for correction of her age was rejected by the Mukhya Nagar Adhikari and she reconciled to it. It appears from the judgment of the learned Judge that he thought that the Rule 47 of the U.P Nagar Mahapalika Sewa Niyamawali 1962 as amended in 1965 did not have the effect of making the date of birth as entered in the Admission Examination certificate of the Banaras Hindu University as final and conclusive evidence and it was always open to the Nagar Mahapalika to superannuate her on the basis of the date of birth recorded in the Service-Book. It may, however, be mentioned that the Service Book of the plaintiff was not produced in evidence as it appears to be the common case of the parties that the plaintiff's Service Book has been lost. The learned Judge drew an inference against the plaintiff as she kept herself away from the witness-box despite repeated application having been made on behalf of the defendant calling her for examination. The learned Judge also drew an inference against her from the declaration made by her of her age as twenty five years in a form which was filed in 1938 as also from her letter dated 8-2-1965 by which she requested for the correction of her age in her service record from 6-4-1909 to 6-4-1915.

4. On appeal by the plaintiff the learned Additional District Judge did not endorse the finding recorded by the learned Civil Judge on the factum of the alleged declaration of her date of birth by the plaintiff as 6-4-1909 when she originally joined service of the then Municipal Board, Allahabad. The learned Judge further found that it was not proved from the evidence on record that her request for correction of her age in 1965 was ever refused by the Mukhya Nagar Adhikari and at any rate she was never informed of that fact. The learned Judge of the lower appellate court, however, dismissed the appeal on taking the view that the non-compliance of Rule 47 of the Nagar Mahapalika Sewa Niyamawali by the defendant amounted to a wrongful dismissal of the plaintiff from service for which she was entitled in law to damages but not for the declaration sought in the suit. The learned Judge relied on the decision of the Supreme Court in the case of Executive Committee of U.P State Warehousing Corporation v. C.K Tyagi 1969 2 SCC 838. From the judgment and decree of the learned Additional District Judge the plaintiff has now come up in second appeal to this Court.

5. Sri Sripat Narain Singh, learned counsel appearing for the plaintiff appellant, contended that the ratio of the decision of the Supreme Court in the case of Executive Committee of U.P State Warehousing Corporation v. C.K Tyagi has been misunderstood and misapplied by the learned Judge of the court below to the facts and circumstances of the instant case and the so-called order of superannuation being in the teeth of the statutory rules was null and void entitling the plaintiff to obtain the relief of declaration and injunction from the Civil Court as that order prejudiced her civil rights. The submission was that the defendant had no option but to determine the age of superannuation of the plaintiff on the basis of the date of birth furnished by the Admission Examination Certificate of the plaintiff which was 6-4-1915.

6. There is no doubt in my mind that if the plaintiff is otherwise entitled in law to obtain the relief of declaration from the Civil Court, then the only criterion available for determination of her age of superannuation to the Mahapalika authorities would be the date of birth as given in the Admission Examination Certificate of the plaintiff. Rule 47 of the Sewa Niyamawali of the Mahapalika, worded as it is, leaves the appropriate authority no choice once the evidence of the date of birth of the Mahapalika servant is furnished by a High School certificate or by a certificate of an examination recognised by the U.P Government as equivalent to it. I am unable to agree with the contention of Sri N.D Pant, learned counsel for the respondent Nagar Mahapalika, that Rule 47 of the Sewa Niyamawali furnishes only a guiding principle and does not bar the determination of the age of superannuation on other conclusive evidence on the service record of the Mahapalika's servant. Sri Pant strenuously contended that the plaintiff having joined the service of the then Municipal Board, subsequently merged into the Nagar Mahapalika, on having made a declaration on 6-4-1909 as her date of birth which was entered in her service record, will be bound by it and she cannot be permitted to go behind it and claim to have her age of superannuation determined on the basis of the certificate of Admission Examination of the Banaras Hindu University which came into existence later.

7. I must first clear some confusion of fact in which Sri Pant seems to have fallen. I find no legal evidence on record of any declaration made by the plaintiff on 6-4-1909 as her date of birth when she entered service in 1932 or 1933 in the erstwhile Municipal Board. As observed above it is the common case of the parties that the Service Book of the plaintiff kept by the Nagar Mahapalika has been lost. Merely from the letter of the plaintiff dated 8-2-1965 (Ext. A.4) on record, no such declaration can be read. That letter which is in Hindu simply says that the writer of the letter had come to know that in her Service Book her date of birth is entered as 6-4-1909 but in fact her date of birth is 6-4-1915 as mentioned in her High School Certificate and it is prayed that necessary correction be made in the Service Book. I cannot spell out, even by stretching the language of the said letter, any admission on the part of the plaintiff that she had made a declaration of her date of birth as 6-4-1909 which led to the entry of that date in her Service Book. I do not find any substance in the argument of Sri Pant that the plaintiff should have appeared in the witness-box for furnishing some explanation and she having failed, the legitimate inference followed that it was on her declaration that the date of birth was mentioned in the Service Book as 6-4-1909. I think it was for the defendant to establish that the date of birth as mentioned in the Service Book was on the basis of declaration made by the plaintiff when she joined service. A mere request for correction of the date of birth in the Service Book will not lead to the necessary inference or conclusion that the date of birth sought to be corrected was entered as a result of the declaration of the servant. A reference was also made by Sri Pant to Ext. A.3 on record which admittedly was the form filled by the plaintiff some-time in 1938 wherein she mentioned her age as twenty five years. The declaration of age as twenty five years in 1938 by the plaintiff cannot be said to be inconsistent with the year of her birth being 1915, on the other hand such a declaration would be more inconsistent with the year of birth being 1909. Ext. A-3 therefore is not a document which militates against the case of the plaintiff. Sri Pant then hesitatingly referred to Ext. A-7 which purports to be a copy of the order of Sri G.S Gupta, the then Nagar Mahapalika Mukhya Adhikari bearing date 24-2-1965 rejecting the prayer of the plaintiff for correction of her age in the Service Book. Since this document has not been relied upon by the learned Judge of the lower appellate court, for good reason I think, as it has not been legally proved to be the copy of the original order, it cannot be resuscitated in second appeal. Thus on the record as it stands 6-4-1915 is the date of the birth of the plaintiff mentioned in her Admission Examination Certificate Ext. 1 on record. As against it there is no other declaration of any different date as the date of her birth by the plaintiff. There does appear some declaration of her age in years and months by the plaintiff in Ext. A.5 which is a true certified copy of the counter-foil of the certificate of Vernacular Lower Middle Examination for girls of March and April 1924 relating to the plaintiff. There is an entry in this certificate to the effect age declared by the candidate at the time of the examination 15 years 3 months”. Certainly Ext. A-5 takes the year of the birth of the plaintiff to 1909. How far a declaration made by the plaintiff in her minority will be binding on her is a matter on which I need not express any opinion. The only use to which the declaration in Ext. A-5 could be put by the defendant is that it estopped the plaintiff from claiming 1915 as the year of birth. But as a matter of law the defendant cannot rely on Ext. A-5 to sustain a plea of estoppel as by declaring her age as fifteen years three months before the examination authorities of the Vernacular Middle Examination for Girls in 1924, the plaintiff was not seeking any advantage or benefit from the Mahapalika. Had Mahapalika proved a declaration of her age by the plaintiff when she joined service certainly an estoppel would have arisen. My attention has not been drawn to any rule of service requiring the declaration of age by a person when he first joins service of the Mahapalika or when he first joins the service of the erstwhile Municipal Board. The mere mention in her original application Ext. A-1 by the plaintiff that she had passed the Vernacular Middle Examination for Girls in 1924 will not amount to a declaration of age by her. It is unfortunate that the Service Book of the plaintiff has been lost. In so far as the instant case is concerned, it is the Mahapalika who has to suffer for its negligence and fault. A court of law cannot be persuaded, howsoever a hard case it be, to sustain any finding or record any finding without legal evidence.

8. The crucial question then that remains to be considered is whether the declaration of her age by the plaintiff as fifteen years three months in 1924 will supersede the evidence furnished by the date of birth as entered in the Admission Examination Certificate for the purpose of determination of her age of supernuation. Rule 47 of the Sewa Niyamawali of the Mahapalika as amended in 1965 deals with retention and retirement of the servants of the Mahapalika. Sub-rule (1) fixes the age of retirement from service of all servants of the Mahapalika below the age of sixty years on June 30, 1964 or appointed thereafter as sixty years. Sub-rule (7) then provides for the determination of the age of supernuation. It will be useful to quote it in full:—

“For the purpose of this rule, the age of a servant shall be determined with reference to his date of birth as recorded in the High School Examination certificate or in the certificate of an examination recognised by Government as equivalent thereto or if there is no such certificate, with reference to his date of birth as recorded in the Hindustani Final Examination or Junior High School Examination or as entered in the scholar's register of any institution recognised by Government. Where there is no such authentic record of the age of a servant or where the servant has not studied in any recognised institution it would be permissible to examine other reliable documentary evidence, such as entries in the Service Book, certified copy of the entry in the birth register, the affidavit of the parent or guardian, the production of the horoscope or such other record or the production of a medical certificate by the Civil Surgeon of the District. The decision of the appointing authority as to the correct age of a servant shall be final.”

9. Even a cursory perusal of Sub-rule (7) will show that it has provided for a selective scheme tending to a preferential elimination of the various criterias one by one for determining the age. It is not possible, therefore, considering the scheme of the provision not to give to the word “shall” used in the first sentence mandatary force. If I were to accept the interpretation of Sri Pant that the word “shall” can be read as “may”, then the scheme of the provision would be frustrated. The intention is manifest that the appointing authority whose decision under the Sub-rule as to the age of the servant has been given finality is to proceed on distinct and certain criterias. Firstly, the appointing authority has to see whether there is any High School Examination certificate or certificate of an equivalent examination recognised by the Government containing the date of birth. Once such a certificate is available containing the date of birth of the servant the age will have to be determined by the appointing authority on its basis. The other alternative criterias thereafter mentioned as second or third choice will not come into play. They will stand eliminated. How can then it be said that if a High School certificate or an equivalent examination certificate is furnished mentioning the date of birth, even then it would be open to the appointing authority to adopt other criterias for determining the age of supernuation? It is clear from the language of the second sentence of the provision, “where there is no such authentic record of the age of a servant………. it would be permissible to examine other reliable documentary evidence.” I think Sri Singh for the plaintiff appellant is on strong ground in urging that the scheme of Sub-rule (7) does not leave any option with the appointing authority but to determine the age of the servant on the basis of the High School or equivalent examination certificate furnished by him.

10. It was then urged by Sri Pant for the defendant respondent that the Sub-rule will not leave the appointing authority powerless to reject the High School or equivalent certificate as spurious or forged and then take recourse to other documentary evidence for determining the age of supernuation of a servant. For the purpose of this appeal this argument is nothing but hypothetical and I need not examine its validity as I do not find either in the pleadings of the Mahapalika or in the evidence stage at the trial any attempt having been made by the Mahapalika to establish that Ext. 1 was spurious or forged document. Even so I think it is not open to the appointing authority of the plaintiff or to any other officer duly authorised under the law to attack the genuineness of the certificate in the civil court, when the Administrator of the Nagar Mahapalika as the appointing authority did not examine the genuiness of the certificate while exercising his power under Sub-rule (7) and reject it on that ground. He has not done so. Even if he intended to do so, he ought to have afforded an opportunity to the plaintiff and hear her before rejecting the certificate. In the case of State of Orissa v. Dr. (Miss) Binapani Dei A.I.R 1967 S.C 1269. the Supreme Court held that where administrative orders which involved civil consequences are passed they must be passed consistently with the rules of natural justice. Sub-rule (7) is a rule empowering the appointing authority to take a final decision as to the age of retirement of the servant. Assuming it to be merely an administrative order, a decision adverse to the servant by the appointing authority would involve civil consequences. Therefore, the appointing authority will be under a duty to afford a hearing to the servant concerned before he takes an adverse decision against him under the said rule. It is the case of the plaintiff, which is not controverted by the defendant tint she was not afforded any opportunity of explanation or of hearing before the impugned order retiring her was served upon her, though on the record there was the Admission Examination certificate of the Banaras Hindu University furnished by her mentioning her date of birth as 6-4-1915. How and why it was ignored by the defendant is not explained by any evidence beyond what is hinted in the pleadings in the written statement and a mere pleading is not evidence in a case and cannot be asked upon unless admitted by the adversory. The lower appellate court rejected the evidence of Smt. Sarla Sharma, an employee of the Education Department of the Girls Section of the Mahapalika who appeared as a witness to prove certain document.

11. It was lastly suggested by Sri Pant that in the circumstances of the instant case the court ought not to exercise its discretion in favour of the plaintiff as she came for an equitable relief of declaration as her conduct had not been above board, she having taken undue advantage by inflating her age when joining service and then by deflating her age when the time came to leave service. I have no hesitation in saying that I would not refuse to exercise my discretion in favour of the plaintiff though I do condemn such a conduct by any public servant but unfortunately that seems to be a thing of frequent occurrence. Even in the highest offices of this land there have been instances where such moves have been made by public servants with success. To blame this school teacher for such a conduct and to deprive her of a relief would not, in the circumstances, be just. Even if she can be held to be guilty of the conduct attributed to her by the learned counsel for the defendant respondent, she deserves to be reprieved. This alone should not be a ground to deprive her of her due under the law.

12. The last question that remains to be considered is whether the ratio of the decision in the case of Executive Committee of U.P State Warehousing Corporation v. C.K Tyagi is attracted to the facts and circumstances of the instant case. In that case the Supreme Court had to consider the matter of a servant of the Warehousing Corporation of Uttar Pradesh incorporated under an Act of the legislature. In exercise of the powers under the Act the Warehousing Corporation had made certain Regulations by which the procedure for disciplinary enquiry against its servants was provided for. Tyagi was dismissed from service on certain charges. It was found that the enquiry officer had not followed the procedure laid down by the Regulation. It is in that context that the Supreme Court held that the mere breach of Regulation will not amount to a breach of statutory law or rule confering a duty and a dismissal in the breach of the Regulations would be nothing but wrongful dismissal entitling the aggrieved servant to damages for breach of contract of service. In the case before the Supreme Court no question of lack of power or improper exercise of jurisdiction while exercising the power was raised. In the instant case the attack is on the propriety of the exercise of the power and it was urged that the appointing authority had no jurisdiction to determine the age of the plaintiff on the basis of some supposed declaration made by her when she joined service in 1932 or 1933. Thus the attack is on the exercise of the power to superannuate. It is clear that the superannuation is in the breach of Sub-rule (7). The appointing authority had no power to superannuate the plaintiff on the ground that she had made some declaration of her age at an earlier stage and ignore the statutory provision of determining the age on the basis of the date of birth furnished by the Admission Examination Certificate. The ratio of the decision of the case Executive Committee of U.P State Warehouring Corporation v. C.K Tyagi therefore is not attracted to the facts and circumstances of the instant case. The learned Judge of the lower appellate court was in error in throwing out the suit of the plaintiff by wrongly relying on the decision of the Supreme Court.

13. The result is that this appeal is allowed, the judgment and decree of the court below is set aside and the plaintiff's suit is decreed for reliefs (a) and (b) as prayed for in the plaint with costs throughout.

Appeal allowed.