1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO.6376 OF 2010 IN SECOND APPEAL (ST.) NO.12391 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders CORAM: P.R.BORKAR, J. Date : April 29, 2010 1. Heard Shri V.R.Sonwalkar, Advocate for the applicant. 2. Notice to Respondents. Shri T.S. Lodhe Patil learned A.G.P. waives notice for Respondent No.1 and Shri S.K.Barlota, Advocate waives notice for Respondent No.2. 3. This is an application for stay of the order passed by the Extra Joint Adhoc District Judge, Jalna, in R.C.A. No.178 of 2009 decided on 19.12.2009, thereby reversing the judgment of the Civil Judge, 2 Senior Division, Jalna in R.C.S. 264 of 2009 decided on 15.10.2009 dismissing the said suit. 4. The first appellate court not only reversed the finding of the trial court, but it also gave declaration the the birth date of the plaintiff-respondent No.2 be treated as 25.10.1956 in stead of 5.5.1952. Thereafter mandatory directions were given to Respondent-authority to carry out necessary correction in the record in respect of birth date of the plaintiff. It is this order which is sought to be stayed. 5. Learned Advocates of the parties have stated before me that in support of averments of the plaintiff-respondent No.2 that his true date of birth is 25.10.1956 and not 5.5.1952 which is mentioned in the service record, the only evidence is in the form of oral evidence led before the trial 3 court. It is stated that there is evidence of Respondent No.2-Plaintiff Rangnath, his mother and his cousin brother. There is also voters' card produced to show that the date of birth of the plaintiff is 25.10.1956. 6. Shri Sonwalkar, learned Counsel for the applicant relied upon two authorities. The first is Aurangabad District Central Co-operative Bank Ltd vs. Damodar Raoji Jadhav 2007 (Supp.) Bom.C.R. 678, wherein this court has taken a view that where Respondent was to retire on superannuation on the last day of August 2006, application was moved by the petitioner in the year 2000 for correction of date of birth from 3.8.1948 to 3.4.1950. The Respondent produced certificate issued by Tahsil Office but relief was not granted. However, on the basis of affidavit that his date of birth was 3.4.1950, the Industrial court 4 granted the relief directing to treat the birth date of the Respondent to be 3.4.1050. It is held that the persons holding office in public employment cannot be permitted to change the date of birth at the fag end of service career. 7. In Burn Standard Company Limited vs. Dinabandhu Majumdar 1995 (4) SCC 175 it is held that where the date of birth declared by an employee at the time of appointment is accepted by the employer it would be imprudent on the part of the High Court to allow interim relief to such employee for continuance in the service. 8. In the present case, suit was filed on 11.8.2009 for declaration and change of birth date. Admittedly, plaintiff-present respondent No.2 is to retire on 31.5.2010. In my opinion, rulings cited apply to the facts of the case and at the fag end of 5 service change in the date of birth cannot be allowed. 9. In the circumstances, application for stay is allowed. Stay granted in terms of prayer clause (A) of the application. Application is accordingly, disposed of. 10. Parties to act on the copy of the order duly authenticated by the court sheristedar. pnd/ca6376.10 (P.R.BORKAR, J.)