IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8388 of 1997 Rajendra Prasad Bhagat, Son of shri Narayan Bhagat, Resident of Village Parasmani, Police Station Sarai, District Purnia. --------- Petitioner Versus 1. The State of Bihar through the Secretary, Department of Health and Family Welfare Bihar, New Secretariat. 2. The Chief Anti Malaria Officer, Bihar, Patna. 3. The Civil Surgeon cum Chief Medical Officer, Purnia. 4. The District Anti Malaria Officer, Malaria Eradication Unit, Purnia, Post Office and District Purnia. ---------- Respondents ----------- 6 22.07.2010 Heard learned counsel for the petitioner and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- 1(a) For quashing the order as contained in Memo No. 305 dated 24.1.97 at Annexure-4 and the order dated 28.3.97 at Annexure-6 passed by the respondent No.3 by which on a wrong consideration the prayer for necessary correction in the date of birth was rejected. (b) For issuance of a direction commanding the respondents authorities to compute the date of retirement in accordance with the date of birth as recorded in the school certificate which was produced long before in 1973 itself and which also finds mention in the service book. (c) For issuance of a direction to the respondents authorities for treating the petitioner in active service and for making payment of 2 salary and all other benefit taking into account the certificate which was produced within time in 1973 itself. (d) For issuance of a direction to compute the date of superannuation in accordance with the date of birth as mentioned in the different school certificates.” Learned counsel for the petitioner, in support of the aforementioned prayer, would submit that when the petitioner had entered in service on 2.7.1963 and when his Service Book was opened on 1.10.1964, a wrong date of birth was recorded therein showing his date of birth to be 14.1.1939 (Fourteenth January Nineteen Thirty-nine) and in fact after the petitioner noticed the same, he had approached the authorities who had advised him to obtain some authentic proof of his date of birth and that is how, he had appeared in the Praveshika Examination by Hindi Vidyapith, Deoghar in the year 1971, wherein, his certificate showing his date of birth to be 8.10.1944. Learned counsel for the petitioner, accordingly wanted to impress upon this fact with regard to the importance of passing of his Praveshika Examination by 3 the petitioner for its also being entered in his service book a copy whereof has been made Annexure-7 to this writ application. The presumption therefore according to learned counsel would be that the date of birth of the petitioner as recorded in the Praveshika certificate being 8.10.1944 would be deemed to have been incorporated therein in place of his earlier recorded date of birth of 14.1.1939. On that basis, the learned counsel for the petitioner has gone to assail the correctness of the two impugned orders contained in Annexure-4 & 6 to this writ application by taking a plea that they are not only arbitrary but also based on nonest and non existent fact. Learned counsel for the State on the other hand would submit that the petitioner was aware of his declaration of his date of birth of 14.1.1939 when his service book was opened on 1.10.1964 and his signature in English at the bottom of page-1 of the service book would by itself be evidence of the fact that the petitioner had voluntarily endorsed such entry accepting his date of 4 birth as 14.1.1939 made in his service book. He has in this context relied on Rule 96 of the Bihar Financial Rules to contend that the change in date of birth could be made only within a period of ten years and therefore, when no such change of date of birth was made in the service book in a span of ten years, the petitioner’s grievance in this regard raised only after his retirement in the month of January, 1997 was not wholly belated but infact could have made no difference in law. In this context, he has also relied on the recent judgment of the Apex Court in the case of Punjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg & Anr. reported in 2010(3)PLJR 84 SC. In the considered opinion of this Court the most notable fact on which the petitioner’s case has to be rejected is that when there is no authentic proof of recording of his claimed date of birth as 8.10.1944 prior to his entry in service in the year in 1963 which could have established the petitioner to be actually born on 8.10.1944, certificate of Pravesika Examination passed 5 by the petitioner in the year 1970 in fact even if taken on its face value can not be held an authentic proof with regard to his claimed date of birth, inasmuch as, the same was capable of being managed as per his own declaration at the time of such examination. It is for this purpose that Rule 96 of Bihar Finance Rule lays down that not only the matriculation certificate but also series of other documents to be taken into account for recording date of birth. Rule 96 of the Bihar Finance Rule is quote hereinbelow:- “96. Every person newly appointed to a service or post under government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. the actual date or the assumed date determined under rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servant’s service under Government and once recorded, it cannot be altered, except in the case of a clerical error without 6 the orders of the state Government.” (underlining by me for emphasis) From reading of the aforesaid rule, it would be clear that for such recording of date of birth of a person entering in government service even a school leaving certificate or any other documentary evidence produced by him could be relied by the authorities at the time of his entry in government service. Admittedly, the date of birth of the petitioner at the time of entry in service in 1963 was recorded as 14th February, 1939 and therefore, it would be difficult for this Court to accept the submission of the learned counsel for the petitioner that recording of his qualification, which earlier was not matriculation or its equivalent examination at the time of his entry in service in 1963 was capable of its being substituted other 1970 by recording the fact of his passing Praveshika examination in the year 1970 from Hindi Vidyapith, Deoghar. There is no such legal provision which may also lead to an inference that the date of birth declared by 7 the petitioner in the Praveshika certificate and recorded by the examining body could be acted upon for changing his date of birth already recorded in 1963. There are two distinct columns as with regard to date of birth and educational qualification in the prescribed format of Service Book and therefore, when the date of birth of the petitioner recorded both in figure and in letters in his service book remains the same i.e. 14.1.1939, it would be difficult for this Court to accept the submission of learned counsel for the petitioner that the date of birth of the petitioner entered in 1963 had stood automatically changed on passing his Praveshika examination and its being mentioned in his service book. Once this aspect becomes clear, there would be no difficulty in also approving the stand of official respondents including the Civil Surgeon (Annexure-4 & 6) wherein he with the help of the provisions of Rule 96 of Bihar Finance Rules has gone to hold that such entry of date of birth made in the service book was incapable of being cured 8 after a period of ten years. As a matter of fact, the change in date of birth could not have been allowed by anyone except the Head of Department and in respect of the post held by the petitioner, the Director of Health Services alone was competent to pass such an order and therefore, the Civil Surgeon or the Malaria Officer at the district level had even otherwise no authority to change the date of birth of the petitioner on the basis of his passing Praveshika examination and its certificate showing the date of birth of the petitioner as 8.10.1944. In fact, learned counsel for the State seems to be correct in placing the reliance on the judgment of the Apex Court in the case of Megh Raj Garg (supra) wherein the Apex Court had held as follows:- “10. An analysis of the above reproduced rule makes it clear that the declaration of age made at the time of or for the purpose of entry into government service is conclusive and binding on the government servant. The only exception to this is that the government servant can make an application for correction of age within two years from the 9 date of entry into service. This necessarily implies that an application made by a government servant for correction of age after two years of his entry into service cannot be entertained by the competent authority. However, the competent authority can, at any time, correct the age recorded in the service book or in the history service of a gazetted government employee if it is satisfied that the age has been so recorded with a view to give undue benefit to the employee/officer like continuance in service beyond the age of superannuation. Of course, while undertaking this exercise, the competent authority is bound to comply with the rule of audi alteram partem and give a reasonable opportunity to the concerned employee/officer to represent his cause against the proposed change in the recorded age/date of birth. In other words, while there is a complete bar to the making of an application by the government servant for correction of his recorded age after two years from the date of his entry into government service, the competent authority can make correction at any time if it is found that the age recorded in the service book is incorrect and has been so recorded with a view to enable the concerned 10 employee to continue in service beyond the age of superannuation or gain any other advantage. 14. In Union of India vs. C. Rama Swamy (supra), this Court, after an in depth analysis of Rule 16-A of All India Services (Death-cum- Retirement Benefits) Rules, 1958, reversed the order passed by Hyderabad Bench of the Central Administrative Tribunal which had directed alteration of the date of birth of the respondent and observed: “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 different 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, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of 11 that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature 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 benefit to the person concerned. This being so, we find it difficult to accept the broad proposition 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.” That being so, this Court would find the case in hand raising a claim of the petitioner for change of his date of birth 12 after his retirement, beyond the one recorded at the time of his entry in service is not only wholly belated but even otherwise unsustainable either on facts or in law. In the result, this application must fail and is, accordingly, dismissed. Rsh (Mihir Kumar Jha, J.)