IN TEE HIS‘i COURT OF JUDICATURE AT JABELPUR w.P.No. “Ely? C . r) . OF 2000 / BETwEEN , . 3hiv Karan singh Thakurap aged about 54 year-5, Son of Raghu Raj Singh Thakur, resident of Amin Para, Raipur’ working as Peon/Ghoukidar at Krkshi Upaj Mandi Samiti, Raipur (W) . PETITIONER §_N n 1. The State cf Madhya Pradesh, through the Director Krishi Vipnan Board. M.P. aaopah. ‘ Deputy Director, M.P.Rajya Krishi Vipnan Board? ' Raipur, Division Raipur (M?) . $ecretary, Kxishi Upaj Mandi Samiti, Raipur (NP). RE SP ONDENTS WRIT yETITmN UNDER gggxcmas 226/227 OF THE CONSTITUTION QF 1mg ' ' > A’I‘TISGARH AT BILASPUR HIGH COURT OF CHH Wrir Perirfon No. 2939 of .2000 Shiv Karan smgh Thakur -Vcrsus— The Stats 85 others P05T FOR ORDER 0N1&x05.2004 Sdl- L.C.BHADOO Judge ($952004 r \ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition No. 2939 of 2000 Shiv Karen Singh Thakur -Versus- The State 35 others Pcmioncr by 51m Awadh Tripathi, Advocate. State by Shri U.N.S.Deo, Govt. Advocate. Respondent No.3 by Shi'i Gautzm Bhaduri, Advocate. ORDER (Passed on7mMay’, 2004) gidusu'ce L.C.Bhadoo. 1. By this writ peh'tion under Article 226/227 of the Conitution f India the petitioner is guesh'om‘ng the issuance of the show cause notice dated 22.4.2000 wheraby the Respondent No.3 informed the petitioner that he‘will be completing the age of superannuan‘on Le. 60 yams on 19.5.2006. 2. The petiflonex’s petition is that he was appointed on the post of peon vide order dated 315‘ January, 1966. At the time of the appointment the petitioner submitted his school leaving certiiicate in which his date of birth was shown as “1" July, 1946”, copy of .the school leaving certiiicate is Annexure P/2 but due to sheer negligence on the part of the Respondent No.3 the date of bilth of the petitioner was mcorded as “19.5.1940” in the selvice memo, instead of “1.7. 1946”. When the petitioner came to know about this fact he immediately‘made a representation to the ResPondent No.3 alongwith copy of the school leaving certificate and relevant, &ocuments and on the basis of that thevrespondent No.3 conected the date of birth of the petin‘oner as “1.7.1946” and the corxection st o» @ was also made in thc scrvicc book of the pct'm‘oncr. Thereaftcr vidc letter dated 11.4.2000 (Annexure P13) the Respondent No.3 informed the Managing Director that on perusal of the service book of the petitioner it has been found that the then Secxetaly of Mandi . Samiti changed the date of birth of the petitioner h‘om “19.5. 1940” to “1.7. 1946” ‘a11d as per the said date the petitioner is to retire on 31“ May 2000 he sought advice of the Managing Director. However without waiting the response of the Iespondent No.1 the Respondent No.3 issued notice Annexule P/4. The petitioner immediately nled a representation alongwith photocopy‘ of the school leaving certificate but the Respondent No.3 has not K considered the representation, a copy of the Iepresentation is nled as Annexure P/S.‘ The respondent No.3 Was not entitle to change E the date of birth of the petitioner, which was corrected after considering the representation of the petitioner. Ultimately it has I been prayed that the show cause notice Annexure P/4 be quashed and the Respondent No. 1 be directed to treat the date of birth of the petitioner as “1.7. 1946” instead of “19.5. 1940”. Return has been med by Respondent No.3 in which it has been menu'oned that though the contention of the petitioner is that his date of birth is 1.7.1946 and the same is based on the relevant documents, but there is no documentary evidence available on record to show that the date of birth of the petitioner is 1.7. 1946, the service book of the petitioner shows that the original entry was struck oii' and was changed as 1.7.1946 and no representation made by the petitioner is available on Iecoxd requesting change of his date of birth. The enny regarding the date of birth i.e. 1.7. 1946 is unauthorized. The provisions of Rule 84 and 85 of the Financial Code Part-I envisaged that the entry regaiding date of birth in the “iv service book is &1a1 and cannot be changed in any circumstances except by the order of the competent authority. The change in the date of birth is only permissible by the State Government and since there is no order of the State Government for change of date of. birth of the petitioner, the entry was made in the service book on the decimation made by the petitioner. The certificate on which the petitioner is relying is issued on 25.4.2000 by the Primary School Bhagi, District—Chittakoot. This cextiiicate was never submitted before the competent authon'ty at the time of making ently in the sewice book. I have heard learned counsel for the’panies. Learned counsel for the petitioner Shri Awadh,'1‘xipathi submitted that as per the school leaving certincate (Annexuie P/‘2) the date of birth of the petitioner is 1.7.1946 and, therefore, the correction regarding date of birth in the service book was right and after making correction by respondent No.3, now the respondents are not entitled to go back to his earlier order and to say that the correct date of birth of the petitioner is 19.5. 1940. On the other hand, learned counsel» for respondent No.3 Shri Gautam Bhadtui argued that at the time of preparing of the service record of the petitioner, on the basis of the declaration made by him about date of birth the date of birth of the petitioner was recorded as 19.5. 1940 and in token of the acceptance of the entry made in the service book the petitioner himself signed the service book on 18.8.1966. Had the petitioner submitted any school- leaving certificate then there was no occasion for respondent No.8 to record the date of birth of the petitioner contrary to the school- 1eaving certincate. Moreover, once the petitioner accepted his date of birch; as 19.5.1940 in view of Rule 84 of the Financial code @ V5? Part-I that entry was &1al and even the respondent No.3 was not entitled] cOmpemnt to change the same. After hearing the learned counsel for the parties, I have perused the records. A perusal of the service book‘of the petitioner shows that at page 5 of the service book where the personal particulars of the petib’oner were entered, the date of birth of the peh'h‘oner was entered as 19.5.1940 and in token of the acceptance of the above particulars the petitioner himself signed this and accepted the above entries on 18.8.1966.‘ However, the Respondent No.3 changed the date of birth of the petitioner as ”1.7.1946 and conection was incorporated and initialed by the Respondent No.3 on 3.11.1991 buttno record is available on the flle showing any representation made by the petitioner and the decision taken by the competent authority thereon nor anything has been mentioned at page No.5 indicating as to on what basis the Respondent No.3 corrected the date of birth of the petitioner. Even in para 5.3 of the petition the petitioner has mentioned that when he came to know about the incorrect entry regarding his’date of birth then he made a representation. But he has not specihcally mentioned when he came to lmow and What was the source of his knowledge that his date of birth was incorrectly recorded in the service book. It has not been mentioned that when he made representation. Simply vague statement has been made in this para and nothing sort of the representation or any other document is available on record. In this connection if we lock into the M.P. Financial Code Part—I Rule 84 which is relevant in the present case, it envisage that at the time of appointment the appointee should furnish the relevant documents regaining his date of birth for example matriculan'on certiiicate; birth certincate issued by the Qwu‘ @ municipal corporation etc. and he should dcclarc his date of birth as per the Christian Era (English Calendar) and once the date of birth is entered in the service mcord shall be treated as §na1. Onlv clerical mistakes are permitted to be recu£ed and in anycther‘ circumstances no other conection will be made. 9. Therefore, once the petiu'oner accepted his date of birth at the iime of preparau'on of the 'senlice book in the year 1966 as 19.5.1940 thereafter as per the above Rule 84 no change can be made and it is not a case of any clerical mistake and in this connection for the aforesaid View I am fortined by the judgment of the M.P. High Couxt reported in 2002(5} M.P.L.J. 231 State of M.P. Vs. Mathura Singh and others. Even the Hon’ble Supreme Court of India in the matter of Union of India Vs. C. Rama Swamv 8r. others reported in ( 1997) 4 SCC 647 observed that bona tide clerical error would normally be one where an omcer has indicated a parh'cular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a diEerent date has been recorded. However, in the present case there is no such mistake that such bona fide clerical error had occurred in the service record. Nor, there is any hnding of the Respondent No.3 before correcting the date of birth of the petitioner in the year 1991 that some clerical error was crept in. In the same matter Hon’ble the Supreme Court of India further‘held that subsequent change in the date of birth was therefore Wrong because that was against the public policy. The Hon'ble Apex Court has observed that:- i1 , " In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is d$erent than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, commnnicates? a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability In fact Where maturitv is a relevant factor to assess suitability, an older person is ordinarily considered to be more nature and therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would’be against public policy to permit such a change to enable longer benedt to the person concerned. This being so, it is di$cult to accept the broad proposih‘on that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability”. .for a reasonable oEce. 10. Therefore, in View of the above, the subsequent date of birth changed by the Respondent No.3 as “1.7.1946” in the year 1991 ‘ ll cannot be considered as the correct date of birth of the petitioner for the purpose of his service including retirement, as such I am of the opinion that the petin‘on of the petitioner is without any substance and the same is liable to be dismissed and it is hereby \ dismissed. / a l Sdl- L.C.BHADOO i Judge Thakur