KESHOTE, J. - (1.) HEARD the learned counsel for the petitioner.
(2.) THE petitioner in this petition under Article 226 of the Constitution is attempting to do indirectly what it is not permissible to do directly. The petitioner is exhibiting and presented himself to be very smart person in the matter. What he thought which clearly borne out from this petition as if the court may not know his modus operanti and conduct of this petitioner. Secondly the petitioner has filed this petition as if the court may not known of the law on the point raised in this petition laid down by the Apex Court from time to time. This petition is nothing but only an attempt on the part of the petitioner to abuse the process of the court. The petitioner is working as Office Assistant in the Directorate of State Insurance and Provident Fund Department, Jaipur. As per his service record and Secondary School Examination Certificate his date of birth is 4. 5. 1944. The petitioner has not produced with the petition the copy of the secondary school examination certificate nor he disclosed in which year he has passed this examination, but it is undisputed that in this certificate 4. 5. 44 is his date of birth. On the basis of this educational qualification the petitioner was entered in the Government service and rightly in his service recorded 4. 5. 44 is recorded his date of birth. It is not in dispute that the petitioner counter signed his this recorded date of birth in his service book. This is recorded on the basis of his own document i. e. secondary school examination certificate.
(3.) THE petitioner is not given out his date of entry in the service, however from his application which is submitted to the Secretary, Board of Secondary Education, Rajasthan, Ajmer it is borne out that he passed his secondary school examination in the year 1965. From the petition one thing is clear that he has never disputed at any time from the date of his entry in the service till day regarding the correctness of the entry in service book of his date of birth. On the basis of his date of birth recorded in his service book on which there is no dispute raised by him, he has to be retired accordingly and he shall retire in the month of May, 2002. THE petitioner to give the longer period to his service, he has adopted this course to apply to the Board for correction of date of birth recorded in his Secondary School Examination certificate which he passed in the year 1965. For this he filed this application Annexure-2. Along with his this application he enclosed the copy of the school leaving certificate Annexure-1. This certificate was obtained by him on 13. 4. 2001. THE application aforestated filed by the petitioner was came to be rejected by the Board under its communication dated 5. 5. 2001 on the ground that after five years of the passing of the secondary school examination no prayer for amendment in the date of birth can be considered. This request has been made by the petitioner for correction of his date of birth in the certificate after about more than 35 years of passing of the examination. THE petitioner has adopted this course knowingly well that it is the settled law that at the fag end of the retirement of the employee from services no such application for correction of date of birth recorded in the service record can be entertained by the Court. He also knows very well that for the correction of the date of birth recorded in his service book the employee is to make application within a reasonable time. In this case the petitioner has not made any application for correction this alleged error in the date of birth to the department. THE petitioner knowing all these facts has adopted this course and in case where the Board would have corrected his date of birth in his certificate naturally he has to make use of it for correction of his recorded date of birth in the service book. This is nothing but only acting cleverly and smartly by the petitioner and to make attempt to get a thing done indirectly which would not have been permissible directly. Be that it may I do not find any illegality in the order of Board not to entertain the application made by the petitioner after 35 years of passing of his secondary school examination for correction of his recorded date of birth. This petition is not only wholly misconceived, misplaced and ill-advised but an attempt by the petitioner to abuse the process of the court. THE whole purpose and object of this exercise which the petitioner has undertaken is to postpone his date of retirement i. e. to indirectly get the correction in his date of birth recorded in the service book. This has been undisputedly recorded on the basis of his own document. THE correctness of this document has not been challenged by the petitioner in the department till day. This is the document on which the petitioner got his entry in the service. On the basis of this document rightly his date of birth has been recorded his service book as 4. 5. 44. This has undisputedly been also counter signed by the petitioner. For all these years he has not disputed this entry. He has not made any application for correction of his recorded date of birth in the service till day in department. When on the basis of his own document entry of his date of birth is made otherwise also it is not permissible to the petitioner to apply and pray for the correction of the same. THEre is catena of decisions of the Hon'ble Supreme Court giving out the guidelines for the employees and the officers regarding their prayer for the correction of date of birth recorded in the service book. THE reference may have to the decision in case of Secretary and Commissioner, Home Department and others vs. R. Kirubakaran (1 ). In this case their Lordships of the Supreme Court in para No. 7 held as under:- "an application for correction of the date of birth should not be dealt with by the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irresparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. THE applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. THE court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant success, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior. " In case of Commissioner of Police, Bombay and another vs. Bhagwan V. Lahane (2), their Lordships of Supreme Court in para No. 6 of the judgment observed as under:- "it is not in dispute that the respondent had produced Secondary School Leaving Certificate which contains his date of birth as 12. 11. 48. One of the instructions indicates that his own statement or that of a parent, guardian, friend or relative on the date of entry in service and also the School Leaving Certificate, Secondary School Certificate Examination, Matriculation Certificate or University Certificate, is the relevant document for that purpose. The respondent, admittedly, filed his Secondary School Leaving Certificate at the time of entry into service on the basis of which his date of birth was reflec- ted in the service register as 12. 11. 48. The respondent ought to have produced the reliable material to show that the date of birth mentioned in the School Leaving Certificate was incorrect. No such material was produced by him. The extract from the birth register produced by him along with his representation being inconsistent with the School Leaving Certificate produced by him earlier, he ought to have proved to the satisfaction of the competent authority that he was given a name before or soon after his birth and that his name was entered in the birth register at the time of registration of his birth. Ordinarily, a child is not given a name before birth and in the entry in the birth register only six, viz. male or female would be mentioned. After naming ceremony, the name is given. It is, therefore, highly doubtful if the parents of the respondent who were villagers and illiterate had named the appellant either before or on the day of his birth. The explanation given now on behalf of the respondent that his elder brother, who was named Bhagwan, was born on 12. 11. 49 and died on 26. 11. 49 and, therefore, his date of birth cannot be 12. 11. 1948 is also not convincing. His further explanation that as his elder brother died, his parents thought of calling him by the same name is also not believable. Moreover, if that was so, his parents would not have com- mitted a mistake in giving his date of birth to the school authorities even though they were illiterate. It appears that he got the entry in the birth register corrected, then obtained a copy of it and produced the same before the authority. Once it was found to be doubtful, the authorities were right in not correcting his date of birth in the service book. Admittedly, the School Leaving Certificate was produced by the respondent and the entry in the service book was made on the basis of the date of birth mentioned therein. As he failed to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, the Tribunal ought not to have directed the appellant to correct the same. " In case of Burn Standard Co. Ltd. & Ors. vs. Shri Dinabandhu Majumdar & Anr. (3), their Lordships of the Supreme Court have observed in para Nos. 8, 9 & 10 of the judgment as under:- "8. The importance of the date of birth of an employee given to his employer and accepted as correct by the latter and entered in the `service and Leave Record' of the former, cannot be underestimated. That is so for the reason that the employee's service with the employer has to be necessarily regulated according to such date of birth. Therefore, when a person is taken into service on appointment, he would be required by his employer to declare his correct date of birth and support the same by production of appropriate certificates or documents, if any. Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared aged or dates of birth. When, on the basis of such declaration made or certificates produced by the employee an entry is made of his date of birth in his `service and Leave Record' to be opened, that will amount to acceptance by the employer of such date of birth, as correct, be it the Government or its instrumentality. When such entry is made in Service Record of the employee the only way in which employer, Government or its instrumentality can get over such entry, because of subsequent disclosures as to its incorrectness, is to hold an inquiry into the matter by affording an opportunity to the employee concerned to have his say in the matter. But when once the employer, the Government or the instrumentality concerned accepts the date of birth of an employee as declared by him and supported by certificates or documents produced by him and allow him to enter into its service and continue on such basis, is it open to such employee to claim that the date of birth declared and authenticated by him was incorrect and, therefore, the employer, be it the Government or its instrumentality, should correct his date of birth in his `service and Leave Record' according to what he claims to be true and if the Government or its instrumentality concerned refused to accept such claim, can the High Court in exercise of its discretionary extraordinary writ jurisdiction entertain a writ application, to consider the merit of such claim? 9. No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbids correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction. If that be the legal position can it be said that it is open to a High Court in exercise of its extra-ordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his `service-Record' at the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his `service and Leave Record' and continue him in service beyond the date of his normal retirement, is the question. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party. But, the question is that if an employee of the Government or its instrumentality, who is at the fag end of his service and due for retirement from his service shortly, according to his date of birth found in his `service and Leave Record' files a writ application before the High Court and invokes its writ jurisdiction for correction of such date of birth with a view to continue in service beyond the normal period of his retirement, will it be appropriate for the High Court to entertain such application to enquire into disputed facts pertaining to his date of birth for correcting it and extend his period of service? 10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an under encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due Extra-ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to date of birth accepted by their employers, placing reliance on the so called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the high Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his `service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, certain a writ application/petition filed by an employee of the Government of its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his `service and Leave Record' or Service Register with the avowel object of continuing in service beyond the normal period of his retirement. " ;