1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 266 of 2011 Azam Khan S/o. Dagd Khan Pathan Age 57 years, Oc. Service R/o. Paithan, Tq. Paithan, Dist. Aurangabad. Petitioner Versus 1] The State of Maharashtra through Secretary, Education Department, Mantralaya, Mumbai-400 032. 2] The Education Officer (Secondary) Zilla Parishad, Aurangabad. 3] Head Master Shri Nath High School, Paithan, Tq. Paithan, Dist. Aurangabad. Respondents Mr.Pradeep Deshmukh, Advocate holding for Mr. H.A. Joshi, Advocate for petitioner Mr.N.R. Shaikh, AGP for respondents. CORAM : D.B. BHOSALE A.V. NIRGUDE,JJ. DATE : 7th March, 2011. 2 JUDGMENT [ PER D.B. BHOSALE, J] :- 1] Rule. Rule made returnable forthwith. 2] This writ petition, under Article 226 of the constitution of India, is directed against the order dated 13/5/2010 passed by respondent No.2-Education Officer (Secondary), whereby petitioner's representation seeking correction of his date of birth in the school record has been rejected. 3] The petitioner is presently working as Administrative Officer, in Pratishthan Mahavidyalaya, Paithan. He was appointed in 1977 in the said college. He is due for retirement within next 7-8 months. The petitioner contends, some time in 2009, he came across a school leaving certificate of his elder brother namely, Hussain Khan Pathan, showing the date of birth as 2/9/1954. Having seen the school leaving certificate of his brother, he realized that his date of birth in the school record as 5/12/1953 is wrong. In view thereof, on 7/9/2004, he approached Gram Panchayat Office, Navgaon and sought information in respect of his date of birth. He found that the Gram Panchayat had no such record since it started maintaining the record only from 9/5/1965. Thereafter, he approached the Police Patil with a request to supply information in respect of his date of birth and found that as per the record, his date of birth is 5/12/1956. He claims that since his parents are illiterate they entered wrong date in the school record. It is in this backdrop, he approached respondent No.3-Head Master, seeking correction in the school leaving certificate. He was told that unless directions are issued by 3 respondent No.2 - Education Officer, such correction cannot be effected in the school record. The petitioner, therefore, approached respondent No.2 seeking correction of his date of birth in the school record/leaving certificate, vide his application dated 3/2/2010. This application has been rejected by the impugned order dated 13/5/2010. 4] Learned counsel for the petitioner, at the outset, invited our attention to Rule 26.4 in the Secondary School Code, 2006 and submitted that, by the amendment, even a student no longer studying has been allowed to apply to the concerned officer of the Zilla Parishad, to make alteration in the date of birth, based on documentary evidence available. He submitted that in a similar situation, Rule 26.4 of the Secondary School Code was under consideration before this court in "Gorakhnath S. Kamble Vs. State of Maharashtra " Writ petition No. 6531/2006. The Division Bench of this court, vide order dated 19/1/2007 allowed the petition and issued direction to the concerned authorities, to effect correction in the register and leaving certificate. He submitted, in the present case also, there is an error apparent in recording his date of birth, which deserves to be corrected. In support of this contention, the only document on which reliance was placed is the duplicate school leaving certificate of his brother, which shows his date of birth as 2/9/1954. The petitioner claims that Hussein Khan Pathan is his elder brother. 5] It is against this backdrop, we have examined all material placed before us, so also, relevant provisions of the 4 Secondary School Code, 2006. We have also perused the judgment of this court in “Gorakhnath S. Kamble Vs. The State of Maharashtra and others” (Writ Petition No. 6531 of 2006), so also, the judgment of the Supreme Court in “General Manager, Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad and others” 2001-1-LLJ 266, on which reliance was placed by learned AGP to contend that correction of the date of birth, as sought by the petitioner, cannot be entertained at the fag end of his career. 6] It is true, as contemplated by Rule 26.4 of the Secondary School Code, even a student no longer studying can also apply to the concerned officer to make alteration in the date of birth, based on documentary evidence available. If the Leaving Certificate is required for the purpose like admission to another Educational Institution, or is relied upon as an evidence for name, Surname, Caste, date of birth etc., in bonafide cases, where, "wrong spelling" of a word or "Obvious mistake” of the type mentioned in Sub-Rule (3) of Rule 26 is noticed in time, after issue of School Leaving Certificate and the same is required to be corrected so as to be consistent with the corresponding entries in the General Register of the school or those in the school leaving certificate, issued by the previous school, such application, seeking correction/alteration, shall be entertained. The procedure to be followed is laid down in Appendix VI of the Code. In this connection, it would be relevant to refer to Rule 26.3. It provides that no alteration in the date of birth or other entries in the General Register, including correction of spelling shall be allowed without the previous permission of the appropriate authority. No such alteration in the figure of date of birth, shall, however, be allowed even with 5 such permission after the student has left secondary school. This shall not, however, preclude correction of obvious mistake such as the date of a particular month, which does not exist in the calender. Before giving sanction to correct spelling or obvious mistake in the figure the same shall be verified with the original evidence, if any, produced at the time of making the relevant entry. When such alteration is made on the strength of the written order of the said authority, an entry to that effect shall be made in the remarks column of the General Register by writing the number, and date of the order of the said authority. The written order needs to be preserved as permanent record. This procedure, in our opinion, needs to be followed scrupulously. 7] In the present case, the school leaving certificate of the petitioner placed on record, is dated 10/6/1972. The petitioner has not produced either school leaving certificate issued by the previous school or the record on the basis of which, the original entries were effected in the general register/leaving certificate. The only basis on which the petitioner is seeking correction, is the duplicate school leaving certificate issued some time in May, 2009 of his brother - Hussain Khan Pathan. Over and above this, the petitioner has not and could not produce any document in support of his claim. We allowed the petitioner to produce, if he had, any document in support of his claim. However, learned counsel for the petitioner failed to produce irrebutable proof/evidence in support of the petitioner's claim, relating to his date of birth. In other words, no irrebutable material were adduced either before the authorities below or before the court to show that there was any error in the date recorded in the 6 leaving certificate or school record. Therefore, the correction sought by the petitioner, in any case, cannot be termed as obvious mistake. As a matter of fact the birth date mentioned in his leaving certificate is consistent with the corresponding entries in the General Register of the School and, perhaps, in school leaving certificate issued by the previous school. That may be the reason why a school leaving certificate of the previous school is not forthcoming. 8] It is now well settled that where controversy over the date of birth of an employee has been raised long after joining the services and it is not the case of the employee that there has been any “obvious mistake” or “typographical error” apparent on the face of the record, the courts are not expected, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, to interfere with the decision rejecting the request for correction in the date of birth, by the concerned authority. As a matter of fact, this court is not expected to undertake such an enquiry or go into such disputed question of fact. In the present case, the entry in the school record/leaving certificate cannot be termed as an obvious mistake of the nature mentioned in Sub-/rule 3 of Rule 26 of the Secondary School Code, which deserves to be corrected so as to be consistent with the corresponding entries in the general register of the school, or in the school leaving certificate issued by the previous school. 9] In so far as the judgment relied upon by learned counsel for the petitioner in the case of “Gorakhnath S. Kamble” (supra), is concerned, in the said case, the school record 7 was not consistent with the Births and Deaths Register maintained by the State Government and the court found that the error in the date of birth as an “obvious mistake”. It was further observed that if the correction was made in the date of birth, that will not cause any prejudice to others. The court then issued direction to the concerned authority to consider the documentary evidence produced by the petitioner in the form of entries in the Births and Deaths Register, and if it was found that those documents were issued by the competent authority, then to effect the changes in the school records and issue corrected documents to the petitioner to that effect. Thus, from bare perusal of the facts and the observations made in the said judgment, it is clear that, it is of no avail to the petitioner, in view of the peculiar facts of the present case. 10] it is well settled that date of birth of an employee, is not only important for the employee, but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters, the court should bear in mind that change of the date of birth long after joing service, particularly, when the employee is due to retire shortly, which will upset the date of birth in the service record maintained in due course of the administration, should not generally be accepted. ( See “General Managar, Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad and others” ( supra ) 11] In the result, we are satisfied that no interference is warranted in the extraordinary jurisdiction under Article 226 of the 8 Constitution of India, to interfere with the decision of the Education Officer. Hence, the writ petition is dismissed. Rule is accordingly discharged. No costs. [A.V. NIRGUDE,J] [D.B. BHOSALE,J.] grt/wp