LAKSHMANAN, CJ. - (1.) THIS writ petition was filed by the petitioner, a Judicial Officer in the Rajasthan Judicial Service, to make necessary correction in the date of birth of the petitioner from 10. 4. 1943 to 3. 10. 1944. Alternatively, it is prayed that the second respondent, Rajasthan High Court, be directed to reconsider and review the whole matter and allow the change in the date of birth and thereafter the same may be referred to the State Government with comments/recommendation for taking a final decision in the matter.
(2.) ACCORDING to the petitioner he belongs to a rustic and illiterate family having meagre source of livelihood. His parents are illiterate. They were not conversant with the Rules and regulations. It is his further case that due to financial crisis the petitioner's parents could not get the horoscope cast from an Astrologer at the time of petitioner's birth or thereafter. The correct date of birth i. e. 3. 10. 1944 was recorded in petitioner's primary, middle and secondary level school leaving certificates issued by the competent authorities. However as per service records in the Judiciary the date of birth of the petitioner has been entered as 10. 4. 1943. The following is the further explanation for the incorrect date of birth entry: ``it is further relevant to mention here that after passing the Secondary Examination, which was conducted by the School Authorities and considered to be equivalent to Xth Class at the relevant time, petitioner's father failed to get him admitted into the Higher Secondary Class well in time. Finding admission being closed to Higher Secondary Class, his father got petitioner's examination Form filled-up for High School Examination, 1961 as a private candidate. Unfortunately, at the time of filling up this Examination Form, due to inadvertance, his date of birth was filled in as 10. 04. 1943 erroneously instead of his correct date of birth of 3. 10. 1944. This blunder resulted due to want of horoscope, copy of Transfer Certificate or any other relevant document/certificate readily available at the time of filling-up the High School Examination Form as a private candidate. It is in this fact-situation that a wrong date of birth was shown in the High School Examination Certificate, 1961; a true and exact copy of which is being submitted herewith and marked as Annexure 4. '' It is submitted that he made an application for correction in his date of birth from 10. 4. 1943 to 3. 10. 1994 within the limitation prescribed under Rule 7 (1) of the Rajasthan Service Rules, 1951 which provides that no claim and request for condonation, pay fixation, change in emoluments, correction in date of birth, change in service history etc. will be entertained by the Government unless such claims had been made three years prior to the due date of retirement. The petitioner made a representation dated 30. 11. 92. After a lapse of one year the petitioner received a letter dated 20. 1. 95 along with a copy of the report of the District and Sessions Judge, Pratapgarh directing the petitioner to submit his clarification on certain discrepancies/points raised in the report. In response to the said letter the petitioner submitted his clarification in detail vide his letter dated 15. 3. 1995. However, his representation was rejected without giving opportunity to the petitioner to plead and prove his case. The petitioner thereafter moved a review petition dated 17. 1. 98 with a prayer to reconsider and review the whole matter and allow the change in date of birth. The petitioner received a letter from the Registrar General dated 2. 3. 98 informing him that the application submitted by him had been filed. According to the petitioner there cannot be even an iota of suspicion that the claim of the petitioner is false and that the State Govt. is only the competent authority under the Rules for taking appropriate decision in the matter and the case of the petitioner has not been referred to forwarded to the State Government. A reply to the writ petition was filed by the State of Rajasthan stating that the writ petition is not maintainable as it has not been preceded by service of a notice and hence the writ petition being pre-mature is liable to be dismissed. It is also submitted that the writ petition raises disputed questions of fact which cannot be gone into in a petition filed under Article 226 of the Constitution of India. It is specifically stated that in the certificate of Secondary School Examination and Service Records the date of birth of the petitioner is shown as 10. 4. 1943 and it is only the correct date of birth of the petitioner. A reply affidavit was also filed by the Registrar General of the High Court stating that the relevant document for the date of birth is High School Certificate and the contention made in the writ petition are disputed questions of fact and the same cannot be examined in the extra ordinary jurisdiction of this Court. A rejoinder to the reply by the Registrar of this Court was also filed. We have heard the arguments of Shri K. K. Shah for the petitioner, Shri R. P. Dave for the High Court and Shri B. S. Bhati for the State of Rajasthan.
(3.) WE have perused the entire pleadings and the annexures filed. In our opinion, it is no more res integra that the date of birth once recorded in the Service-Book cannot be sought to be changed and this position is more than clear from the provisions of Rule 8 (2) (a) and 8 (2) (b) of the Rajasthan Service Rules, 1951. Rule 8 (2) (a) and 8 (2) (b) (i) of the said Rules read as under:- ``8 (2) (a) -In relation to a person already in the service of the Govt. on 1. 1. 79, the date of birth as recorded in the Service Book/service Roll shall be accepted by the State Govt. as date of birth of such person irrespective of the basis or authority on which it was entered. The date of birth so recorded and accepted shall not be changed subsequently on the basis of High Secondary/higher Secondary School Certificate or in the first certificate issued by any Board of Education etc. irrespective of whether it is advantageous to him or not. (b) (i) -In relation to a person appointed on or after 1. 1. 79 the age of a Government servant for the purpose of this Rule shall be determined with reference to the date of birth entered in the High Secondary/higher Secondary School Certificate or in the first certificate issued by any Board of Education where the minimum qualification prescribed for the post under Govt. is Matriculation or Secondary or Higher Secondary or any other diploma or certificate recognised and declared by the Government equivalent thereto and above. '' In the present case the petitioner was appointed on 31. 12. 1981 and therefore, Rule 8 (2) (b) (i) has application in his case as that his age shall be determined with reference to the date of birth entered in the certificate at the time of appointment. In this view of the matter it is clear that the petitioner is not entitled for any relief under the equitable jurisdiction of this Court under Article 226 of the Constitution of India. It is not in dispute that in the certificate of High School and the Service Record the date of birth of the petitioner is shown as 10. 4. 1943. Rule 8 (2) (b) (i) clearly provides that the person who was in the State Service on or after 1. 1. 79, his date of birth as recorded in the Service Book/service Roll shall only be accepted by the State Government irrespective of its basis and once recorded, the date of birth in the aforesaid manner shall not be subject to any amendment or correction even on the basis of certificates of Middle/higher Middle School or Education Board whether such changes are beneficial to such employee or not. The law on the subject is very much clear and hence the case put forward by the petitioner has no merits. Annex. R/2 is the notification dated 25. 11. 95 issued by the Finance Department which makes the position clear. In Annexure R/2 it is clearly provided that according to the provisions of the Rules of 1951 such matters should only be reviewed by the Administrative Heads and accordingly while exercising their powers, decision should be taken by them. Therefore, such matters, in our opinion, are not required to be sent to the Finance Department. In the instant case, the claim of the petitioner runs contrary to the provisions as contained in Annex. R/1 and, therefore, in our opinion, he is not entitled for any relief. It it submitted on behalf of the second respondent that on the report of the Additional District Judge, comments were called from the petitioner which were again sent to the District Judge and the District Judge in turn had submitted his comments vide his letter dated November 17, 1995. The matter was thoroughly examined and the then Hon'ble Chief Justice had taken the decision for not making any change in the date of birth of the petitioner already recorded and accordingly communication dated 10. 12. 1996 (Annex. 9) was sent to the petitioner through the District Judge, Udaipur. It is also to be noticed that the petitioner's representation was considered and on the report of the Additional District Judge, petitioner's comments were also called and thereafter the same was thoroughly scrutinised and decision was taken not to make any change in the date of birth which was also communicated to the petitioner. Since a final decision had already been taken on 10. 12. 1996 itself, the review petition was rightly filed. In our opinion, no Judicial Officer or other employees of the Service can claim a right of correction of date of birth and entertainment of such writ applications for correction of date of birth. It will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications with the sole object of preventing their retirement when due. The Supreme Court has held that extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution of India is not meant to make employees of the Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so called newly found material. In the instant case the petitioner has joined the Rajasthan Judicial Service on 3. 1. 1982. He is in service for about 18 years with no objection whatsoever raised as to his date of birth accepted by the employer as correct. However the petitioner came forward with the writ petition in the year 1999 seeking correction of his date of birth in his Service Records at the fag end of his service, who is due to retire on superannuation on 30. 4. 2001. The very conduct of non registering an objection for all these years should be a sufficient reason for this Court not to entertain the writ application on the ground of acquiescence and laches. Moreover, we are also not inclined to exercise our discretionary jurisdiction since the petitioner had waited to file the writ petition till the year 1999 to get the date of birth corrected by availing of the extra ordinary jurisdiction of this Court. In the present case the petitioner while seeking employment agreed with the terms and conditions on which employment was offered. The date of birth as stated by him was entered in the Service Records. This apart the revision of his date of birth now would upset the promotional chances of others in the Judicial Service who may be waiting for their promotion on the basis that the incumbent who would retire on the given date opening up promotional avenues for others. Permitting a change at this juncture in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning and will also upset the legitimate expectation of other Officers who are waiting in the queue hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. Any direction for correction of the date of birth of the petitioner concerned has a chain reaction, inasmuch as others waiting for years below him for the respective promotions are also affected in this process. In the instant case the onus which is on the petitioner to prove about the wrong recording of his date of birth in his Service Book has not been duly discharged. In our opinion, the date of birth should be determined on the basis of the Service Record and not on what the petitioner claims to be his date of birth. ;