ADHIKRAO MAHADEO PATIL Vs. CHIEF EXECUTIVE OFFICER

JUDGEMENT

(1.) On 22nd December, 1965 the petitioner was appointed as clerk. His date of birth was recorded as per school record presented by him as 1st June, 1940. For the first time the petitioner applied for correction of his date of birth in his service record on 29th August, 1989, i.e. after 24 years of entering into service. In 1994 the Government issued a Circular laying down guidelines for correction in the date of birth in the service record. The petitioner made another representation after the said Circular on 5th January, 1995 seeking correction of his death of birth. This was rejected. Therefore, he has filed this writ petition seeking correction of his date of birth in his service record. He wants his date of birth to be declared as 11th June, 1942 and evidence according to him was some birth extract issued by Mamlatdar, Patan on 6th October, 1965. It may be noted here that the petitioner joined service on 22nd December, 1965 and on his own showing he was in possession of the extract issued by the Mamlatdar on that date, as it was issued to him two months prior to his appointment. Therefore, there is no doubt that the petitioner, according to him, knew before joining the service that his date of birth was incorrectly recorded in his school leaving certificate and also in his service record. He was holding a General Accounts Officer s post at the time he filed the writ petition. So it can also be safely presumed that he knew the consequences. The petitioner moved an application for the first time after 24 years seeking correction of his date of birth. The issues raised in this writ petition are covered by number of judgments of the Supreme Court.

(2.) Before going to those judgments, it may also be pertinent to have a glance at the Rules governing the procedure with respect to recording of date of birth in the service record. Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, (for short "Civil Services Rules"), lays down the procedure under subrule (2). SubRule (2) of Rule 38 lays down, "while recording the date of birth, the following procedure should be followed". SubRule 2(a) of Rule 38 lays down, "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." All other SubRules except subrule (f) are not necessary for the present controversy. SubRule (f) lays down, "When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed, unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error"". There is an instruction also, which lays down, "Normally, no application for alteration of the entry regarding date of birth as recorded in the service book or service roll of a Government servant should be entertained after a period of five years commencing from the date of his entry in Government service." Thereafter, there is another instruction which lays down procedure in case the date of birth is to be changed. SubRule (f) of Rule 38(2) clears any room for doubt that once date of birth is recorded in terms of Rule 38(2)(a), it cannot be altered except for two reasons. The two reasons having been explained in Rule 38(2)(f) that (1) the entry was made due to want of care on the part of a person other than the person who wants his date of birth to be changed OR (2) if there is a clerical error. In our view, therefore, even if an application was made within five years of entering into service, the entry could not have been changed, on the basis of any evidence a person may have with him except for the reasons mentioned in Rule 38(2)(f) of the Civil Services Rules. On this short ground only this writ petition can be dismissed as admittedly the petitioner was in possession of his birth extract issued by the Mamlatdar, which he wants to rely now, before entering into service, but he did not make any representation for change of his date of birth for 24 years after entering into service.

(3.) The Judgments of the Supreme Court are many which cover such a controversy. However, we will refer to a few. In Union of India v/s Harnam Singh, reported in (1993) 2 SCC 162, there was a delay of five years for alteration. The Rules had been amended as in the present case and the Rule which was being interpreted by the Supreme Court was para materia with the present Rule. The Rule before the Supreme Court was, if, (a) a request in this regard is made within five years of his entry into Government service; (b) it is clearly established that a genuine bona fide mistake has occurred, and (c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government Service. The petitioner s Counsel submitted that since the amendment was carried in the year 1994 he could apply within five years of the amendment. The same argument was made before the Supreme Court. But the Supreme Court held, "It was obvious that the request for correction of date of birth is required to be made by the Government servant within five years of his entry into the Government service and his date of birth may be corrected, if it is established that a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service. The argument was made that the amendment had been carried in the year 1979 and therefore the five years period was to be calculated from the date of amendment. This argument was rejected by the Supreme Court in para 12 of the judgment. The Supreme Court in this case relied on the case of New India Insurance Co. Ltd. v/s Smt. Shanti Misra, reported in (1975) 2 SCC 840. In paragraph 15 the Supreme Court also held, "In the instant case the date of birth recorded at the time of entry of the respondent into service as May 20, 1934 had continued to exist, unchallenged between 1956 and September, 1991, for almost three and a half decades. The respondent had the occasion to see his servicebook on numerous occasions. He signed the servicebook at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen." In the present case, we presume that the date of birth of the petitioner as recorded in his servicebook was also reflected in other documents like seniority list. This case is worst than the case that was before the Supreme Court. As according to the petitioner himself, he was in possession of the birth extract which showed his date of birth 11th June, 1942 before he entered into service.