1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.3163 OF 2009 Vinayak s/o Bhukkan Marathe .. Petitioner Versus The State of Maharashtra through Secretary, Education Department, Mantralaya, Mumbai and others .. Respondents Shri V.D.Sapkal, Advocate for petitioner Shri K.B.Choudhari, AGP for respondent No.1 Shri D.S.Bagul, Advocate for respondent No.2 CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 4th August 2009 PER COURT : 1. This is a petition under Article 226 of the Constitution of India by which the petitioner prays for issuing a writ for quashing and setting aside the impugned order dated 5.5.2009 and the impugned notice dated 5.5.2009 annexed to the petition at Exh.”F” and “E”, respectively. 2. Such of the facts as are necessary for the decision of this petition may be stated thus : The petitioner was appointed as a Primary Teacher in the Zilla Parishad on 12.11.1973 after having cleared the requisite 2 qualification of S.S.C.,D.Ed. The date of appointment of the petitioner is 12.11.1973. A service book accordingly came to be prepared and the date of birth which was recorded in the service book was 1.6.1957. Thereafter the impugned notice came to be issued to the petitioner as well as the impugned order by which the petitioner was informed that his correct date of birth was 1.6.1951 instead of 1.6.1957 as was recorded in the service book. 3. The petitioner thus being aggrieved by the said impugned order and the impugned notice has filed the present petition. By virtue of the impugned order the petitioner was to be retired on 31.5.2009 on having attained the age of superannuation. By virtue of the order passed by the learned Vacation Judge on 26.5.2009, ad-interim relief in terms of prayer clause (C) came to be granted. By virtue of the aforesaid relief the petitioner is continued in service beyond the alleged date of retirement. 4. Shri Sapkal, learned Counsel for the petitioner has urged before us that the respondents have sought the correction of the date of birth of the petitioner at an extremely belated stage and the provisions of Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 are applicable to the employees as well as the employer and no correction in the date of birth could be done after lapse of period of five years which is specified in the said rules. It is also urged before us that no enquiry in this behalf had been conducted and the 3 petitioner was not given an opportunity of hearing before the correction in the date of birth of the petitioner is said to be effected. Shri Bagul, learned Counsel for respondent No.2 has urged before us for dismissal of the petition on the ground that the provisions of Rule 38 of the said Rules do not apply in respect of the correction of the date of birth and particularly, the period of limitation to the employer. Assuming that the said rule applies, the said rule envisaged an exception i.e. where the date of birth is required to be corrected on account of either a clerical error or on account of a bona fide mistake. It is urged before us that the Officer recording the entries in the service book had obviously incorrectly recorded 1.6.1957 as the date of birth of the petitioner whereas the said date i.e. 1.6.1957 is the date on which the petitioner took admission in the school. In the light of that, therefore, it is urged before us that there is no merit in the petition and therefore, petition may be dismissed. 5. Undisputedly, the date of birth of the petitioner is 1.6.1951. It is clearly true that the petitioner had not practiced any fraud nor had he misled the respondents. The petitioner at the time of preparation of service book had produced the necessary certificate on the basis of which the entries of date of birth as 1.6.1957 came to be recorded. Since the date of birth of the petitioner is 1.6.1951, the recording of the date of birth as 1.6.1957 is a mistake. This fact can be ascertained by perusal of the certificate i.e. date of birth of the petitioner i.e. 1.6.1951 and date of joining the school i.e. 1.6.1957. The Officer effecting the entries in the 4 service book obviously committed a mistake and recorded the date of birth of the petitioner as 1.6.1957. The petitioner also does not dispute before us that his date of birth is 1.6.1951 and, therefore, he has attained the age of retiremement on 31.5.2009. By virtue of an interim order of this Court, the petitioner is continued in service. 6. Turning to a submission advanced before us by Shri Sapkal that the provisions of Rule 38 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981 are squarely applicable in their rigour. According to us we need not dilate much on this aspect. Assuming that the said rule thus applies, yet an exception is carved out in the said rule which provides for correction of the record in the event the date of birth is incorrectly recorded on account of a clerical error or on account of a bona fide mistake. The date of borth of the petitioner has obviously been recorded as 1.6.1957 instead of 1.6.1951. The petitioner also does not dispute that his date of birth is 1.6.1951. In the light of that, according to us, petitioner can not be permitted to derive any advantage on the basis of a mistake in recording his date of birth. 7. The petitioner has placed reliance on the Judgment of the Division Bench of this Court in Ranjana Lau Salakar Vs. State of Maharashtra & Ors. 2007 (5) ALL MR 302 and Adhikrao Mahadeo Patil vs. Chief Executive Officer cum Vice President of MHADA, Bombay and others, 2008 (6) Mh.L.J.505 According to us, the ratio laid 5 down in the aforesaid judgments is inapplicable to the facts of the present case. In the aforesaid judgments, the employee therein had submitted an application for correction of his date of birth while on the verge of retirement. In that light of the matter, therefore, the Division Bench found that the petitioner therein had not made out any case for correction of the date of birth. The ratio laid down in the aforesaid judgments, therefore, is inapplicable to the present case. 8. Having considered the rival submissions, according to us no case for interference is made out by the petitioner and the petition deserves to be dismissed. The petitioner is continued in employment though having attained date of superannuation. We, therefore, direct that the services rendered by the petitioner after having attained the superannuation till today shall not be reckoned for the purpose of calculating the pension. The pension of the petitioner would be calculated only on the basis of service rendered by the petitioner till attaining the date of superannuation. 9. The petition being sans merit is, therefore, dismissed with no order as to costs. ( A.V.POTDAR, J.) ( P.V.HARDAS, J.) vvr/3163.09wp 6