KANTILAL ATMARAM PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition is filed under Article 226 of the Constitution of India for correcting the date of birth of the petitioner as 1-3-1938 or 28-2-1938 in the service record and to calculate the year of Superannuation of the service on the basis of the said date of birth.

(2.) The petitioner was selected as a clerk on the basis of his having passed the Secondary School Examination and at the time of selection, he was required to produce the secondary school examination certificate. The certificate issued by the Secondary School Certificate Examination Board, dated 1st July, 1957 shows the petitioner's birth date 28-2-1937, and on the basis of the same, the said date was recorded as his birth date in his service record. The petitioner after having passed the Lower Revenue Qualifying Examination was promoted as Deputy Mamlatdar in the year 1980. It is the case of petitioner that in the year 1990, the petitioner checked his birth date in the school leaving certificate and realised that instead of 28-2-1938 in the secondary school certificate his date of birth was shown as 28-2-1937. The petitioner, therefore, obtained the certified copy from the birth Register of Sidhpur taluka. In the birth register he found that his date of birth is shown as 1st March, 1938. Having confirmed that the petitioner was born on 1-3-1938 and his year of birth was 1938 and not 1937, the petitioner by his application dated 9-11-1990 addressed to the Collector, Mehsana, pointed out the descripancy in the birth date and requested to correct the birth date in his service record. As the petitioner did not receive any reply, again on 9-3-1992 he addressed a communication to the Collector, Mehsana and made similar request. Alongwith the said application, the petitioner sent the copies of all the certificates. The Collector by his letter dated 22-4-1992, asked the petitioner to inform whether he made any application to correct his birth date earlier and as to why he did not point out the said mistake for a long period of time. By his communication dated 14th July, 1992, the petitioner pointed out that he had not looked into the Government record and therefore, as and when the mistake come to his notice he immediately pointed out the same to the Collector, Mehsana. By communication dated 27-12-1993 addressed to the petitioner by the Collector, the petitioner was informed that he should immediately apply the information which was asked for in the earlier letter dated 19-3-1993. The petitioner by his letter dated 2-3-1994 addressed to the Collector pointed out that he had not received the communication dated 19-3-1993 and requested to send the copies thereof. There is one more letter dated 9-3-1994 addressed to the petitioner by the Collector, Mehsana asking the petitioner to send the information regarding his date of birth with the documents viz; (1) The School Leaving Certificate; (2) Extract from the Birth Register. It was also pointed out that normally date of birth in the SSC certificate and the School Leaving Certificate should be the same. He was therefore asked to explain as to how the aforesaid difference crept in. The petitioner was also asked to explain why he made the application at a belated stage. The petitioner by his communication dated 23-3-1994 addressed to the Collector, Mehsana sent the original extract from the Birth Register and the School Leaving Certificate. He also pointed out that there seems to be typing mistake in the SSC Certificate which was shown as 28-2-1937 instead of 28-2-1938. It is further pointed out that from the birth register, it is clear that the date shown is 1-3-1938 and, therefore, the year of 1938 as year of his birth. The petitioner further pointed out that as the time of retirement came nearer, he tried to think about his pension and at that time he realised the mistake in the service record. It appears that all the informations sent by the petitioner were sent to the State of Gujarat, Revenue Department for necessary correction in the service record of the petitioner. However, by the communication dated 21-5-1994 addressed to the Collector, Mehsana by the Section Officer of the Revenue Department of the State of Gujarat it was pointed out that the request of the petitioner cannot be accepted as it is not in accordance with the Government policy. The petitioner has challenged the said decision in the present petition.

(3.) Perusing the correspondence on record, it appears that the petitioner for the first time on 9-11-1990 requested the Collector, Mehsana to correct the date of birth in the service record and from that date onwards up to 23-3-1994 there is exchange of communications between the petitioner and the authorities. It also appears from the correspondence that the authorities have rejected the request of the petitioner to change the birth date on the ground that the request of the petitioner is at unbelated stage. Therefore, the short question which arises for consideration is whether in such circumstances, authorities can correct the date of birth? Rule 171 of the Bombay Civil Services Rules is relevant for our purpose, which reads as under: "Sec. 171 : In the service book every step in a Government servant's official life, including temporary and officiating promotions of all kinds, increments and transfer, and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to departmental orders, pay bills and leave statements, and attested by the head of the office. If the Government servant is himself the head of an office the attestation should be made by his immediate superior. Officiating and temporary service and leave taken prior to first substantive appointment to a permanent post should also be recorded in the service book and duly attested after verification. The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on. In the case of as Government servant, the year of whose birth is known but not the date, the 1st July should be treated as the date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth. In the case of a Government servant who is only able to state his approximately age, and who appears to the attesting authority to be of that age, the date of birth should be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. When the date, month and year of birth of a Government servant of not known, and he is unable to state his approximate age, the age by appearance as stated in the medical certificate of fitness, in the form prescribed in Rule 11 should be taken as correct, he being assumed to have completed that age on the dates the certificate is given, and his date of birth reduced accordingly. When once an entry of age or date of birth has been made in a service book, no alteration of the entry should afterward be allowed, unless it is known, that the entry was due to want of care on the post of some persons other than individual in question or is an obvious clerical error. Request made for alteration of date of birth should not be entertained after the preparation of the service book of the Government servants concerned and in any events, not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period, such request should not be entertained after the completion of five years' continuous service. The date of birth may, however be permitted to be altered at a later stage if the Government is satisfied that a bona fide clerical mistake has been committed and that it should be rectified. Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book which are obviously clerical. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a competent authority." Reading the said rule, it is clear that the Government servant has a right of correction of entry either on the ground of apparent clerical mistake or on any other grounds including the ground of want of care on the part of the present respondents for making the entries. The rule nowhere provides for any limitation for making certain application for correction of entries.