IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10483 of 2010 1. Tahlu Paswan S/O Late Shiv Brat Paswan R/O Vill Mow, P.S.Tekari, Distt-Gaya, At Present Posted As Chaukidar No- 10/1 At Mow O.P. Under Tekari , P.S. In The District Of Gaya Versus 1. The State Of Bihar 2. The Additional Collector Null Gaya, Office In Collectorate, Gaya 3. The District Superintendent Of Education Gaya 4. The Anchal Adhikari Tekari Block, In Tekari P.S., Distt- Gaya 5. The Block Education Officer Tekari Block In Tekari, P.S., Distt-Gaya ---------------------------------- 3. 03.11.2011 Heard learned Counsel for the petitioner and the State. The petitioner, a Chaukidar, is aggrieved by the date of his superannuation as 30.6.2010 in stead of 11.12.2010 asserting his date of birth to be actually 10.12.1950 and not1.7.1950 as contended by the respondents. Learned Counsel submits that the petitioner was appointed as a Chaukidar on 1.1.1980.The extract of his service book enclosed shows his educational qualification as having passed Class VI. The petitioner in support of his educational qualification had placed a copy of his School Transfer Certificate dated 12.2.1964 before the authorities which also mentioned his date of birth as 10.12.1950. The respondents incorrectly recorded the year of his birth only in the service book and not the date and the month. The petitioner does not desire any correction of his date of birth, but only fixation of the correct date and month in the same year. Rule 96 Note I and 97 (1) of the Bihar Finance Rules (hereinafter referred to as ‘the Rules’) therefore have no application. The petitioner was not aware of the incomplete entry made in his service book. No sooner that he learnt of the same 2 he has pursued the matter in right earnest. The impugned order dated 22.4.2010 superannuating him on 30.6.2010 there is not sustainable. Counsel for the State urged that the petitioner sought to reopen issues of his date of birth in January 2010 only days prior to his superannuation. There is no explanation why he did not raise it any time earlier more particularly within a period of ten years prescribed under Rule 96 of the Rules. The petitioner had signed (by his thumb impression) the service book and was therefore fully aware of the entries made therein and if aggrieved should have been more diligent in protection of his rights. The date of birth of a person has to be understood in a composite manner with regard to the date, month and year. Any change in either of the three entries amounts to change in the date of birth. The Court finds it difficult to sustain the submission that because the petitioner did not seek any change in the year of his birth (1950) but only the date and month, it does not amount to change in the date of birth. Birth is a fact ascribed to a single occasion only. If the petitioner joined service on 1.1.1980 and contended that he had produced his School Transfer Certificate in support of his date of birth at the time of entries being made in the service book and if he had initialed it (by thumb impression) it is for him to explain that if the respondents did not make correct entries in the service book in accordance with the documents placed by him, why did he not object, much less within the time prescribed under Rule 96.The writ petition is completely silent on this aspect. There is no pleading in the writ application when and how the petitioner was made aware of any incomplete entries made in his service book with regard to his date of birth. The issue appears to have been raised by him on the verge of superannuation in January 2010. 3 The date of birth being a question of fact, has assumed dimensions of a disputed fact in the case, with the petitioner and the respondents contending either ways. Not only has the petitioner been unable to demonstrate why he did not make any request for correction in the date of birth within ten years of his service, the petitioner has been unable to answer Rule 97(1) of the Rules which provides that if a government servant was unable to state his exact date of birth but could state the year only or the year and month then it shall be reckoned as lst July or 16th of the month concerned respectively. In the present case the service book mentions his year of birth only and not the month. According to Rule 97(1) of the Rules in absence of his month of birth being disclosed in the service book the respondents were authorised in law to fix it as lst July of the concerned year. The Court finds no infirmity in the same. Ac far back as 1994 Supp (1) SCC 155 (Secretary and Commissioner, Home Department & ors. vs. R. Kirubakaran) the Supreme Court emphasised not only that any request for correction of date of birth must be made within the time provided for under the Rules but also that no such correction should be entertained towards the end of the service career. It cautioned that any such correction if permitted belatedly has a chain reaction inter alia with regard to promotion etc. causing irreparable injury as the officer concerned then continues in service even while persons below him in seniority waiting for their promotion may lose their promotion altogether. The observations in para 4 and 7 of the judgment are apposite. 4. Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of 4 retirement and for calculating the date of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their dates of birth recorded in the service records, by either invoking the jurisdiction of the High Courts under Article 226 of the Constitution or by filing applications before the Administrative Tribunals concerned, for adjudication as to whether the dates of birth recorded were correct or not. 7. An application for correction of the date of birth should not be dealt with by the 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 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 succeeds, he can always be compensated, but if he 5 fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior. The same view has been reiterated in (2010) 6 SCC 482 (Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg) The writ application is dismissed. Snkumar/- (Navin Sinha,J.)