IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13173 of 2001 SIYA DEVI, wife of Sri Naresh Prasad Chaudhary, of village Fulkiya, P.O. and P.S. Bariarpur, in the district of Munger, (retired as an Assistant Teacher, from Middle School (English), Lakhisarai … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director Primary Education, Govt. of Bihar, Patna 3. The District Superintendent of Education, Lakhisarai 4. The Headmaster Middle School (English), Lakhisarai … Respondents ----------- 5. 21.7.2010 Heard Mr. Gajanan Arun, counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This writ petition is for issuance of a writ in the nature of mandamus, commanding/ directing the respondents to treat the date of birth of the petitioner as 1.4.1947 and not as 1.7.1941 and further for granting the consequential reliefs and benefits as also for the payment of cost of litigation.” At the out set it has to be noted that the writ application was filed on 3.10.2001 when the petitioner had already retired from service on the basis of her original date of birth recorded in the service book as 1.7.1941. In fact the 2 petitioner having retired from service on 30.6.2001 has come out with a prayer for change of her date of birth recorded in the service book from 1.7.1941 to 1.4.1947 by taking a plea that in her matriculation certificate, issued in the year 1969, her date of birth recorded is 1.4.1947 and as such, it would be deemed that the date of birth recorded in the service book opened by the Headmaster of the school on 13.3.1974 and even containing her signature thereon was incorrect. In effect such prayer for change of date of birth in the service book opened on 13.3.1974 by filing this writ application is delayed only by a period of 27 years. Mr. Arun, learned counsel for the petitioner, however, has explained that the petitioner had no knowledge at least of existence of such date of birth in her service book till 1998 and in fact she came to know in the year 1999 that her date of birth was wrongly recorded as 1.7.1941 in place of 1.4.1947 and treating the same to be a clerical mistake she had filed a representation on 28.8.1999 before the 3 District Superintendent of Education, Lakhisarai for changing her date of birth. It is the case of the petitioner that despite the representation filed by her on 28.8.1999 and its reminder on 3.3.2000 as also on 27.8.2000 the authorities did not take any decision and ultimately a legal notice was also sent on 20.1.2001 but all went in vain and the petitioner was made to retire on 30.6.2001. Mr. Arun has also submitted that such mistake in recording of date of birth of the petitioner in the service book had occurred on account of another person bearing the name of the petitioner as Siya Devi whose date of birth actually was 1.7.1941 as would be evidenced from a certificate as contained in Annexure 12 to the rejoinder affidavit. Mr. Arun, therefore, would submit that such clerical mistake in recording a wrong date of birth and even being belated should be allowed by this Court and the petitioner should be deemed to have continued in service upto 31.3.2007 on the basis of her date of birth being 1.4.1947. Counsel for the State, on the other 4 hand, by placing reliance on the photo copy of the service book made as Annexure „A‟ thereto would submit that there would be no question of any clerical error, inasmuch as the petitioner with her open eyes had put her signature on the 1st page of the service book in the column meant for authenticated entries in the service book below which the Headmaster has put his signature with his date 13.3.1974, the date on which such service book was opened. He would submit that as per Rule 96 of the Bihar Financial Rules any clerical error also should be removed only within a period of ten years and therefore, the petitioner had entered in service in the year 1974 and had made no such request for change of her date of birth even as per own showing till the year 1998. She cannot now claim her such change of date of birth on the plea of clerical error and/or her date of birth recorded in the matriculation certificate. In the opinion of this Court the submission of the counsel for the State must be upheld for a plain and simple reason that Rule 96 of the Bihar Financial Rules does 5 not give any exception for change of date of birth on account of clerical error beyond a period of ten years. Rule 96 of the Bihar Financial Rules reads as follows: “96. Every person newly appointed to a service or post under Government should at the time of appointment declare the date of his birth by 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 Government servant‟s service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the order of the State Government.” This Court in fact would be also wholly at a loss to decide a disputed question of fact and that too in absence of other Siya Devi, who has not been made party, as to whether her date of birth was 6 1.7.1941 and she could continue on the basis of alleged date of birth of the petitioner being 1.4.1947. The certificate relied by the counsel for the petitioner with regard to date of birth of other Siya Devi, not made party to this writ application, would in fact go to show that the appointment of teachers was possible even having passed Class 7 examination, inasmuch as her certificate only goes to show that the other Siya Devi had read upto only Class 7. In that view of the matter, it cannot be said that when the petitioner had entered in service she had disclosed or submitted her matriculation certificate on the basis of which her appointment was made. In any event the signature of the petitioner on the 1st page of the service book, as contained in Annexure „A‟ having been not disputed by her, would be the last and clinching evidence of such entry being made way back in the year 1974 and the same cannot he changed for mere asking of the petitioner not only at the fag end of service but in fact after her retirement. If the petitioner was so sanguine regarding a wrong entry of 7 her date of birth in the service book and in fact when she claims in her representation dated 3.3.2000 that she had also come to know of the same in August, 1998, it was well within her reach to approach the competent court for such a correction while she was still continuing in service. The petitioner, however, had sat happily giving up her right during his her service period and her filing of this writ application after her retirement for change of date of birth cannot be now entertained. Reference in this connection may be made to the judgment of this Court in the case of State of Tamilnadu Vs. T. V. Venugopalan reported in (1994) 6 SCC 302. Counsel for the petitioner at this stage would submit that even if her date of birth would not be changed, she still would be entitled for payment of her retirement benefit on the basis of original date of birth as recorded in her service book i.e. 1.7.1941. Counsel also submits that earlier pension papers submitted by the petitioner contained her date of birth as 1.4.1947 and that is why her retirement benefits have not 8 been paid to her. Thus in the event the petitioner would make correction and/or file fresh pension paper giving her date of birth as 1.7.1941 the authorities would be under obligation to process the same and make payment of admissible retirement benefit of the petitioner within a period of six months from the date of receipt/ production of a copy of this order. That being so, this Court would not find any reason to interfere in this matter and accordingly, this application is dismissed with the aforementioned observations and directions. (Mihir Kumar Jha,J.) Surendra/