SHIV DAYAL J.
(1.) THIS is a petition under Article 226 of the Constitution for a writ of mandamus requiring the Central Government to decide an appeal preferred by the petitioner for the determination of his age.
(2.) THE petitioner was employed as a Sepoy on October 25, 1929 He was given Emergency Commission on June 13, 1941, and Regular Commission in 1946. At the time of his entry in service, he gave his date of birth as November 5, 1912. THE petitioner's case is that his father died in his early childhood and his mother being a Pardanashin and uneducated lady, one of his relations, Sardar Ishwarsingh, had got him admitted to a primary school at Nawashahar, district Jullundur, on November 5, 1920 Sardar Ishwarsingh gave out the petitioner's age to be about 8 years and the school authorities entered his date of birth as November 5, 1912, (exactly 8 years preceding the date of his admission). THE same date was accordingly entered in his Matriculation certificate.
On the basis of the Ministry of Defence letter dated September 30, 1957, Army Order No. 410 was issued on August 2, 1958, by the Army Head quarters. The order prescribed the procedure to be adopted for correction of date of birth of military officers. It required certain documents to be filed in support of the application for correction of age. It is not disputed before us that that order applied to the petitioner.
On April 11, 1959, the petitioner submitted an application for correction of his date of birth. He produced an extract from the Municipal Birth Register, which showed the date of his birth as May 10, 1915. The petitioner contends that he also moved the Punjab University for making the correction in the Matriculation certificate, but the University refused to do so. He then filed a civil suit on July 14, 1962, in which a decree was passed on September 19, 1962, declaring the petitioner's date of birth to be May 10, 1915, and a mandatory injunction was issued to the University to give effect to the said declaration. In compliance with the mandatory injunction and in accordance with the decree, the University corrected the certificate. All this happened during the pendency of the verification proceeding.
(3.) BY a communication dated October 24, 1962 (annexure F), the petitioner's head quarters, were informed that the Government had not accepted his date of birth as May 10, 1915. The relevant portion may be reproduced here:-
"In his application for the grant of Emergency Commission Brig. GURDIAL SINGH gave his date of birth as 5th November 1912. This date is based on the entry in his original matriculation certificate and has been acted upon as his correct date of birth for all official purposes. Application for change of date of birth of officers are not normally entertained unless made within a reasonable time of commencement of service and no requests for change of date of birth made about the time of superannuation are entertainable Brig. GURDIAL SINGH was commissioned in the year 1940, but it was not until recently that he took steps to have the entry regarding his date of birth amended in his matriculation certificate. In the circumstances, the Government have not accepted his date of birth as 10 May 1915 and he will retire with effect from 5 November 1962, as already ordered."
The petitioner's contention is that this order is discriminatory. He filed in this Court a statement (annexure G to show that the age of three Brigadiers were altered as follows:
Army List 1964 Page 32 Date of birth corrected after retirement. This is not controverted in the return filed by the respondents. It is clear from the above statement that in three similar cases, age was in fact corrected. Thus discrimination is established.
The petitioner filed an appeal on October 25, 1962. The petitioner was informed by letter dated December 18, 1962 (annexure K) from the officiating Military Secretary that his appeal was dismissed. The letter reads thus:-
"To Lt. Col. GURDIAL SINGH (Retd.), No. 5. The Mall, JULLUNDUR CANTT. Subject :- CHANGE IN THE DATE OF BIRTH. Your statutory appeal dated 25 October 1962 forwarded through Head Quarter Western Command has been examined by the Government. In your application for emergency Commission, you had given your date of birth as November 1912 and this date is the same as given in your matriculation certificate originally. Inasmuch as your date of birth has been changed in your matriculation certificate only a month before the date of your retirement. The previous decision was taken after careful consideration of all the facts relating to your case and the Government do not see any reasons to change it. Brig. Offg. MILITARY SECRETARY."