THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1646 OF 2002 DATED FEBRUARY, 2011 BETWEEN Bank of India, represented by Chairman & Managing Director, Head Officer, Express Towers, Nairman Point, Mumbai and Others. …Appellants And T.N.Ramakrishna (Died) and others. …Respondents THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1646 OF 2002 J U D G M E N T (Per Sri Justice Sanjay Kumar) Writ Petition No.846 of 1992 was allowed by a learned Judge of this Court on 28.03.2002, directing the Bank of India to effect rectification of the clerical error in the date of birth of the writ petitioner in its service records as 21.01.1933 instead of 21.01.1932 and accord all consequential benefits to him. Aggrieved thereby, the Bank is in appeal. The writ petitioner expired pending the appeal on 02.11.2005. His widow and sons have come on record as respondents 2 to 4. The writ petitioner, a native of Kerala, entered the service of the appellant Bank as a Typist on 01.03.1951. In his application for the said post, he admittedly mentioned his date of birth as 21.01.1932. His School records however reflect his correct date of birth based on the Malayalam Calendar, which is otherwise. Copies of his Secondary School Leaving Certificate and Transfer Certificate are placed on record and disclose his date of birth as 8th Makaram, 1108 according to the Malayalam Almanac. There is no dispute that this date translates to 21.01.1933 as per the Gregorian Calendar. The writ petitioner remained unaware of the mistake committed by him at the time of his appointment. This fact is borne out by the annual performance appraisal reports submitted by him throughout his service, wherein he continued to declare his date of birth as 21.01.1932. As per this date, the writ petitioner aggained the age of superannuation in January, 1992. It appears that the writ petitioner realized his folly only in October, 1991 and submitted representation dated 08.10.1991 enclosing a copy of his Secondary School Leaving Certificate along with the Malayalam Almanac and requested the Bank to treat his date of birth as 21.01.1933 instead of 21.01.1932 and permit him to retire in January, 1993. The Bank however rejected his representation by proceedings dated 21.10.1991 stating that at the time of his entry into its service, the writ petitioner had himself stated his date of birth as 21.01.1932 though no documents were submitted as record to support his date of birth. The Bank further stated that in terms of the guidelines once the date of birth furnished by the employee at the time of his appointment was accepted and entered in the records, the same could not be changed thereafter. As the writ petitioner had not pointed out the error earlier and was due for retirement in January, 1992, the Bank declined his request for changing his date of birth. Thereupon, the writ petitioner approached this Court by way of the subject writ petition, W.P.No.846 of 1992. By interim order dated 24.01.1992, this Court directed the appellant Bank to continue the petitioner in service, but without salary. But upon the vacate stay application filed by the Bank, the order was vacated on 05.02.1992 directing that the writ petitioner should be relieved from duty on 06.02.1992. This Court further clarified that the said order would be without prejudice to the contentions of the parties and would be subject to the result of the writ petition. Thereafter, this Court by the order under appeal allowed the writ petition and granted relief to the writ petitioner as aforestated. Perusal of the order reflects that the learned Judge was of the opinion that the mistake with regard to the wrong date of birth furnished by the writ petitioner at the time of his entry into the service of the Bank was a bona fide one. The learned Judge took note of the fact that there was no dispute as to the writ petitioner’s correct date of birth reflected in his School records as per the Malayalam Calendar. The learned Judge relied upon the Judgment of a Division Bench of Allahabad High Court in G.P.PILLAI V/s. UNION OF INDIA[1]. The fact situation obtaining in the said case was similar to the case on hand. The petitioner therein, a Malayalee, committed a mistake in furnishing his date of birth as per the Gregorian Calendar while correctly mentioning it as per the Malayalam Calendar. He thereafter realized his mistake on the basis of his School records and the Allahabad High Court upheld his plea that the incorrect information was a clerical mistake and that he was entitled to correction of his date of birth. Holding that there were no mala fides on the part of the writ petitioner in filing the case, the learned Judge opined that it did not amount to an alteration or correction of his date of birth but was only a rectification of a bona fide mistake. The writ petition was accordingly allowed directing the Bank to effect rectification of the clerical error with regard to the date of birth of the writ petitioner with all consequential benefits. While admitting this appeal on 22.10.2002, a Division Bench of this Court, taking note of the fact that during the pendency of the writ petition the writ petitioner was allowed to continue in service without salary for a very brief period under an interim direction which was vacated thereafter, observed that if he succeeded in the appeal, he would be entitled to his emoluments as if he was in service for the additional year. The statement to this effect made by the Deputy Zonal Manager of the Bank was also placed on record. As stated earlier, the writ petitioner expired on 02.11.2005 and his legal representatives are now waging his battle. Sri S.Surya Prakash Rao, learned counsel for the appellant Bank, contended that the learned Judge ought not to have treated the date of birth furnished by the writ petitioner, which was affirmed by him throughout his service, as a clerical error and ought not to have directed rectification thereof. Learned counsel submitted that in any event the move on the part of the writ petitioner to seek rectification of his date of birth was highly belated as it was on the eve of his retirement from service. He relied upon case law to support his contention that an employee could not be permitted to agitate the correctness of his/her date of birth at the fag end of the career and such cases should not be entertained by the Court. Refuting these contentions, Sri Abhinand Kumar Shavli, learned counsel for the respondents, submitted that this was not a case where there was a dispute with regard to the correctness of the date of birth. The learned counsel asserted that it was a genuine and bona fide mistake on the part of the writ petitioner in entering the wrong Christian date of birth in his service records and that the School record, reflecting the correct date of birth as per the Malayalam Calendar, clearly manifested this error. He therefore contended that it was a case of a clerical mistake, pure and simple, and could not be classified with cases where employees raised disputes with regard to the correctness of their dates of birth at the fag end of their career. It is no doubt true that Courts would frown upon eleventh hour attempts by employees to raise disputes with regard to their date of birth just before retirement so as to gain extra service. I n SECRETARY AND COMMISSIONER, HOME DEPARTMENT V/s. R.KIRUBAKARAN[2], the Supreme Court opined that an application for correction of the date of birth should not be dealt with keeping in view only the employee concerned. The Court pointed out that such correction has a chain reaction as others waiting for years below him for their respective promotions would be affected. The Court therefore concluded that unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the employee, the Court should not issue a direction for change of date of birth. I n HINDUSTAN LEVER LTD. V/s. S.M.JADHAV[3], the Supreme Court observed that it is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth. In that case, on the basis of the employee’s application and matriculation certificate, the employer had made the entry as to the date of birth in the service records. In such circumstances, the Supreme Court was of the opinion that the employee could not be allowed to raise a dispute at the fag end of his career about such date of birth. STATE OF UTTARANCHAL V/s. PITAMBER DUTT SEMWAL[4] was a case where the employee challenged the recorded date of birth thirty years after the preparation of the service book. The relevant rules stipulated that no application or representation would be entertained for correcting the date of birth or the age record and the entry made in the service book was deemed to be the correct date of birth. In view of the said rule and as the challenge by the employee was highly belated, the Supreme Court held that no case was made out for entertaining the request of the employee. In the present case, it is to be noticed that no other employee of the Bank is adversely affected by the correction of the writ petitioner’s date of birth at this stage. By virtue of the said change, the writ petitioner had claimed an extra year of service. He was however permitted to continue in service only upto 06.02.1992 owing to the vacation of the earlier interim order of this Court. His entitlement to the emoluments due and payable for this additional year of service was however left open while admitting this appeal. It is also to be noticed that as per the Bank’s own case, the entry in his service record at the time of his appointment was based upon his statement and no document in support thereof is available with the Bank. The application form submitted by the writ petitioner, a copy of which is placed on record, however reflects that the writ petitioner’s matriculation certificate was shown to the Bank at that time. There is no dispute that as per the date of birth entered in the writ petitioner’s School records according to the Malayalam Calendar, his date of birth would be 21.01.1933. As pointed out in R.KIRUBAKARAN3 it would be permissible for this Court to direct correction of the date of birth but the same should not be done in a casual manner. Such order must necessarily be passed on materials produced by the employee from which the irresistible conclusion follows that the date of birth recorded in the service book was incorrect. The case on hand does not pose any difficulty in this regard as there is no dispute with regard to the correctness of the date of birth claimed by the writ petitioner. It was only owing to a lapse on his part in converting the same from the Malayalam Calendar to the Christian one that the mistake occurred in the service records of the Bank. Reference in this regard may also be made to the observations of the Supreme Court in UNION OF INDIA V/s. HARNAM SINGH[5]: "A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay." Thus, there can be no hard and fast rule to the effect that an employee is bound eternally by the declared date of birth in his service records. As pointed out in the decision supra, it would be open to him to claim correction of such date of birth, but only on the basis of the irrefutable proof. The Court added further that he must do so without any unreasonable delay. In the present case, the Bank also does not dispute the claim of the writ petitioner as to his correct date of birth. It is his case that he came to know about the mistake committed by him only in the year 1991. As this realization was prior to the date of his retirement from service on the basis of the incorrect date of birth and he made a representation in this regard well before the impending retirement, it cannot be said that there was any unreasonable delay on his part. The Bank seeks to rely upon its Circulars dated 06.03.1984 and dated 17.06.1983 stating that once the date of birth furnished by an employee at the time of his appointment is accepted and entered in the service records, the same shall not be subject to any alteration. This rule must necessarily be subject to the exception of bona fide and genuine cases where the claim for correction of the date of birth, being without unreasonable delay, is also supported by irrefutable proof. Further, the guidelines dated 08.07.1983 issued by the Bank speak of furnishing of the stipulated documents as proof of date of birth at the time of joining in service. The matriculation or School Leaving Certificate is one of the documents specified. The application form of the writ petitioner discloses that his matriculation certificate was shown to the Bank at the time of his entry into service. The Bank states now that no such record is available with it. If the date of birth entered in the service record was on the basis of the entry in the writ petitioner’s matriculation certificate, the Bank ought to have recorded the same as per the Malayalam Calendar which would have clinched the issue. In that view of the matter, the Circulars of the Bank cannot be pressed into service to defeat the rightful claim of the writ petitioner made well before his retirement for correction of his date of birth. As pointed out by the learned single Judge, this was not a case of alteration or correction of date of birth stricto sensu, as there is no dispute as to the correctness of the date of birth claimed by him. It was only a case of rectification of a mistake committed by the writ petitioner in converting the date of birth from the vernacular Calendar to the Christian one. We therefore see no reason to interfere with the order passed by the learned Judge allowing the writ petition. The respondents herein, being the legal representatives of the deceased writ petitioner, would therefore be entitled to all consequential monetary benefits for the additional year of service resulting from the rectification of the date of birth of the writ petitioner. The Writ Appeal is accordingly dismissed. Parties shall bear their own costs. ----------------------------- B.PRAKASH RAO, J. ----------------------------- SANJAY KUMAR, J. _______ FEBRUARY, 2011. PGS (PD) THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO.1646 OF 2002 (Per Sri Justice Sanjay Kumar) _______FEBRUARY, 2011 [1] 1981 LAB.I.C. 1393 [2] 1994 Supp. (1) SCC 155 [3] (2001) 4 SCC 52 [4] (2005) 11 SCC 477 [5] (1993) 2 SCC 162