(Vanney Singh Vs. The State of Rajasthan & Ors.) S.B. Civil Writ Petition No.914/1995 Dated : 05.03.2008 HON'BLE MR. JUSTICE SANGEET LODHA Mr. Anil Vyas, for the petitioner. Mr. B.L. Tiwari, Additional Government Counsel, for the respondents. 1. In this writ petition, the petitioner a member of Rajasthan Police Subordinate Service has assailed validity of impugned order Annexure-3 whereby he was sought to be retired from service w.e.f. 31.3.95 on attaining age of superannuation. 2. The background facts giving rise to present writ petition may be summarised thus : The petitioner had entered the service on 22.10.55 on being appointed on the post of Constable. During his service tenure, he was accorded promotion on the post of Head Constable, Assistant Sub Inspector and then on the post of Sub Inspector. At the time of his entry into services, his date of birth was recorded as 19.3.37, accordingly vide order Annexure-3, he was sought to be retired from service on 31.3.95 on attaining age of superannuation i.e. 58 years. However, on 15.1.95 i.e. just 2½ months before the date of superannuation, the petitioner served the respondents with a notice for demand of justice through his counsel contending that his correct date of birth is 19.3.39 as recorded in his school leaving certificate issued by Government School, Barmer, therefore, his date of birth wrongly entered in the service record as 19.3.37 deserves to be corrected. However, the claim of the petitioner for correction of date of birth has not been accepted by the respondents and accordingly he stands retired from service on attaining age of superannuation w.e.f. 31.3.95. Precisely, the submission of the petitioner is that at the time of recruitment his date of birth was recorded by the appointing authority at his discretion ignoring the school certificate showing the date of birth as 19.3.39, therefore, his date of birth recorded in the service record incorrectly deserves to be rectified. It is contended that in case of similarly situated person Shri Poonjraj Singh, the date of birth has been changed by the respondents in pursuance of direction issued by this Court, therefore, the petitioner cannot be treated differently. 3. The respondents in their counter have seriously disputed the case set out by the petitioner. It is submitted that the date of birth of the petitioner in his service record has been entered on the basis of information supplied by the petitioner himself and not arbitrarily by the officials concerned. The respondents have asserted that in the year 1974, duplicate service book was supplied to the petitioner wherein, his date of birth was recorded as 19.3.37, however, he never questioned its correctness at the relevant time. It is further submitted that on 3.2.87 the petitioner was again given a duplicate service book wherein his date of birth was entered as 19.3.37 but even thereafter he never raised any objection except by way of notice for demand of justice dated 15.1.95 served through his counsel, just 2 ½ months before the date of his retirement. That apart, it is submitted that at the time of entering into service the petitioner was examined by the Doctor and in the medical report submitted at the time of his appointment, his age was shown to be 18 years which bears the thumb impression of the petitioner as well. It is denied by the respondents that the Poonjraj Singh and the petitioner are the similarly situated. 4. It is contended by the learned counsel that the date of birth of the petitioner recorded in his school leaving certificate is conclusive, therefore, the respondents were under an obligation to correct the petitioner's date of birth in the service record accordingly. It is reiterated by the learned counsel that in the matter of Shri Poonjraj Singh, a similarly situated person, the respondents have corrected his date of birth, therefore, the petitioner cannot be picked up for a different treatment being given. However, the learned counsel has not been able to establish as to how on facts, the petitioner's case is identical with that of Shri Poonjraj Singh. 5. Per contra, the learned Additional Government Counsel contended that in the matter of correction of the date of birth, each case has to be examined on the basis of its own facts. The learned counsel while reiterating the stand taken in counter to the writ petition submitted that in view of the provisions of Rule 8 of the Rajasthan Service Rules, 1951, the petitioner's representation for correction of the date of birth entered in the service record cannot be entertained. The learned counsel submits that the date of birth entered in the service record of the petitioner was well within his knowledge, therefore, if it was incorrectly recorded, then, the petitioner could have made an appropriate representation for correction of the entry on the earliest possible occasion. The learned counsel urged that the representation made by the petitioner just 2 ½ months before attaining the age of superannuation by itself shows lack of bonafide. The learned counsel submitted that application for correction of the date of birth must be made within the time fixed by the rule, and in absence of such rule within the reasonable time, the application made at the fag end of service career, cannot be entertained. In this regard, the learned counsel has relied on decisions of the Hon'ble Supreme Court in the matters of State of U.P. Vs. Shivnarain Upadhyaya (AIR 2005 SC 4192) and State of Gujarat & Ors Vs. Vali Mohmed Dosabhai Sindhi (AIR 2006 SC 2735). 6. I have heard the learned counsels, perused the record and have considered the rival submissions. 7. It is not in dispute that at the time of entry in service the date of birth of the petitioner in his service record was entered as 19.3.37. The assertions made by the respondents in their reply that in the service book of the petitioner, duplicate copy whereof was supplied to him twice over in the year 1974 and 1987, his date of birth was duly entered as 19.3.37 only is not controverted by the petitioner by filing any counter. It is not the case of the petitioner that the factum of the entry of his date of birth as 19.3.37 was not within his knowledge. There is absolutely no explanation on record that if the date of birth of the petitioner recorded in his service book was not correct then what prevented him in making an appropriate representation for correction thereof on the earliest available occasion. 8. At this stage it will be appropriate to refer the decisions of the Hon'ble Supreme Court in the matters of Shivnarain Upadhyaya's case and Vali Mohmed Dosabhai Sindhi's case (supra) relied upon by the learned Additional Government Counsel. In Shivnarain Upadhyaya's case the Hon'ble Supreme Court has observed that "An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only 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 irreparable 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 the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any direction is issued or declaration made, 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 within at least a reasonable time. 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 about the wrong recording of his date of birth, in his service book." In the matter of Vali Mohmed Dosabhai Sindhi's case after considering various earlier decisions, the Hon'ble Supreme Court has observed that "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 within at least a reasonable time. 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 about 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 date of birth in the service book." 9. Thus, in view of the position of law settled by the Apex Court as above, in my considered opinion, the respondents have committed no error whatsoever in rejecting the representation made by the petitioner for correction of his date of birth in service record, at the verge of his retirement. The petitioner has not been able to make out any case as to how he is similarly situate qua Shri Poonjraj Singh, whose date of birth said to have been corrected by the respondents on representation being made by him in pursuance of direction issued by this Court. That apart, on the facts and in the circumstances of the case noticed above, this Court is of the opinion that the representation made by the petitioner for correction of his date of birth at the fag end of his service career notwithstanding full knowledge about the date of birth recorded in his service record for all these years, does not appear to be bonafide. 10. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J.