/tF^ lf0? WTCT *ll-rl'Tl4 '^rcT •ni4l^iol^, y>CT?lti'<iti, fsldltl^ (®.'TT.) fe ??Tf^R?T dt>W<i> 2480/2003 •4iRcp|<T>aI ^frfRft SPK^ EfT^, dTCl'<q]t^<|u| f^s^ Ut||^'-& -gl^:<c|-C~<, T^T T^f! 3T'?T -(-<. Post for order on 2&April, 2008. SdA satishXAgi,,^ Judge WT8T: •Mlrlll'4 '^3^S^ •r^NI<»l'i4, UCTfl'M'llti, Roll'Ml'i (&.TT.) 1^5_zrTfepT (t>*1 2480/2003 ^lRl+lchaf : ^(ft 3TTT?6[cff sTT^, ^S ~Sf>^si 56 cT^, TTf^T ^ft '^T^TfT cqci^nT-SlR^Cd ST^e, (^•-Iri^) 1T^TyF-^.-809207,? fTM -t?^ ^rf^FTT ^cW Sr-^TETT-T ^g', ^Fe^-9, ^Tc'n^ ^IR, I^TrTT '^f (®.7T) (cl'is^ dTCl'(c||({1<|U| ; 1. wll^'-C ~SI^'<c|-CM, Rlf^x^-ll T^ ^TR%T ^tW?, cTTyT ^?) RRh>pi+l T^TK 3Tg;WTFT ^i^, ^cR?-9, l^rrt ^wicT wf9f, ft?nf ^FR, f^rr-^f (??.7T.) 2. !N£T Pi^yich, ^l^r sTaffR^ smi ^f^r, fircnf i, l^pfr^ ^R, I^TcTT ^f (B.^T.) (¥TRcT c^ ^ETM c^ %)^< 226/227 ^ S^MTT •4lR|cbl) SB: Hon'ble Shri SatishK. AenihotrLJ. Present: Shri Parag Kotecha, Advocate for the petitioner. Shri P. Diwakar, Senior Advocate with Shri Ashish Surana, Advocate for the respondents. -^7 ORDER (Passed on .. .^.g.?day ofApril, 2008) 1. The petitioner, by this petition, filed under Article 226/227 of the Constitution of India, seeks a declaration that the date of birth of the petitioner bedeclaredason 09.02.1947 and consequently, the notice dated 11/12 March, 2003 (AnaexureP/1) retiringthe petitionerfromservicew.e.f. 31.08.2003 laswellas orderdated 12/17dIJuly, 2003 (AnnexureP/2)whereby the petitioner on attaining the age of superaimuation on 31.08.2003 was directedto submit details forpayiTientofC.F.F., gratuity etc., be quashed. '. i: ^-^ 2. The brieffacts, in riutshell, are that the petitioner was appointed as Hospital Attendant (Sanitary) Grade II in Tawaharlal Nehru Medical and Research Centre, Bhilai by the respondents. The petitioner made a declaration that on the date of appointment, her age was'29 years. Later on, the petitioner arranged a certificate issued fi-omthe office ofthe Registrar (Birth andDeath Registration) Rajnandgaonon 09.05.2003'(Annexure P/4), wherein her date ofbirth was stated to be 09.02.1947. The petitioner claims correction in her date of birth as 09.02.1947 inplaceof 13.08.1943, whichwas initiaUy recorded in her service book. Thus, this petition. 3. Shri Parag Kotecha, leamed' counsel->:Etppearing for the petitioner would submit that the petitioner being illiterate conld not obtain the birth certificate from the office ofthe Registrar (Birth and Death Registi-ation), Rajnandgaon, in time. The same could be obtainedpnlyon 09.05.2003'^herein it was found that her date ofbirth was .09.02.1947 and not 13.08.1943, on the basis ofwhich the petitioner was directed to retire from service on attaining the age of 60 yearsw.e.f 31.08.2003. 4. Per contra, Shri P.Diwakar, leamed Senior counsel appearing for the respondents would submit that the petitioner was medically examined on 13.08.1972 by the Senior Industrial Medical Officer at the time ofher initial appointEnerit and it was found'that her age was 29 years (Annexure R/l). Accordingly, her date ofbirthwasrecorded inthe servicebook as 13.08.1943 (Annexure R/2). The petitioner had obtamed birth certificateiafter receiving the superaimuation notice dated ll/12th March, 2003'on 09.05.2003 (Annexure P/4). Thepetitionei^was medically examined on 041.12.1990 and at that point of time also,the medical .report reported her date of birth as 13.08.1943 (Annexure R/4). The petitioner was' thereafter regularized in S-l ii ( ~<t grade by order dated 06.10.1995. At the time of regularization, she was further examined medical'ly on 20.10.1995 (Annexure R/5). The same age as recorded in the service book and attestation forms. As per medical certificate dated 20.10.1995 (Annexure R/5) her age was 52 years. The petitioner was required to submit a fresh attestation form on her regularization and in the said regularization form dated 12.11.1995, the petitioner stated her date of birth as 13.08.1943 (Annexure R/6). Part II ofthe service recordwas issued on 17 November, 1995 (Annexure R/7) wherein the petitioner's date of birth was shown as 13.08.1943. The petitioner knew about her date ofbirth before superannuation notice was received by the petitioner. Thus, it is well settled that at the fag end of service career, the date of birth could nqt be modified or corrected. 5. I have considered rival contenfions of the learned counsel appearing for the parties, perused the pleadings and documents appendedthereto.It is evident that the petitioner has raised for the first time question of correction of date of hirth after receipt of superannuation notice dated 11/12 March, 2003. Thereafter, the instant petition was filed on 13.08.2003. During the pendency ofthe petition, the petitioner obtained birth certificate from the office ofthe Registrar (Birth and Death Registration) Rajnandgaon, wherein her date of birth was registered on 09.05.2003 (Annexure P/4). The registration itself after a long period, on 09.05.2003 ereates doubt about the bonafide of the registration certificate. It is also not clear asto on what basis the birth certificate was issued as no material has been produced to jestablish the case of the petitioner. The registration authority has not recorded the date ofbirth of the petitioner, after having examined the case of the petitioner, in accordance with law. The petitioner was examined by the Medical Board on k-' several dates i.e. 13.08.1972, 04.12.1990 and 20.10.1995. and fhereafter, her age as per her date ofbirth dated 13.08.1943 was found to be eorrect. 6. The contention of Shri Kotecha, that since the genuineness of the birth certificate dated 09.05.2003 has not been denied by the respondents the same sUould be accepted as it is. 7. The Court cannot close its eyes when on the face of it the genuineness of the birth certificate appears to be doubtfal as Shri Kotecha has failed to establish that what prevented the petitioner from obtaining the birth certificate tb-oughout from fhe date ofher initial appointment till superannuation notice was received in the month ofMarch, 2003. 8. Reliance of Shri Kotecha on Rule 4.4(^T) that the date ofbirth ofan employee is to be proved by birth certificate is correct but in the facts ofthe case when the birth certificate itself is doubtful, this cannot be the final basis for determination of the date of birth of the petitioner. The request of the petitioner for refenmg the matter once again to the Medical Examination Board cannot be accepted as the Director, Medical and Health Services, respondent No. 1, has filed aa affidavit to the effect that as per medical. science, it is not possible to assess the correct age ofa lady after 55 years of her age even by the radiological methods, by the Medical Board. The case of the petitioner was examined by the Medical Board on several occasions during the course of her service and there was no change in her age as calculatedonthebasisofherdateofbirthi.e. 13.08.1943. 9. In the matter of Secretary & Commissioner, Home Department & Others v. R.Kriubakaran , the Supreme Court has held as under: ^ ' 1994 Supp(l)SCC 155 "7. An application for correction ofthe date ofbirth should not be dealt with by the tribunal or the High Court keeping in view only fhe public servant concemed. It need not be pointed out that any such direction for correction of the date of birth of the public servant concemed 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 ofthe correction of the date of birth, the officer concemed, contmues in office, in some cases for years, within which time many officers who are below him in s.eniority 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 eorrection ofhis date of birth. Assuch, 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..." 10. In the matter of State ofU.P.and others v. Gulaichi (Smt.) , the Supreme Court held as imder: "8. Normally, in public service, wifh entering into service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service- book, relatmg to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is neeessary to maintain the date ofbirth in the service records. But, oflate atrend can be noticed, that many public servants, on the eve of their retirement raise a dispufe about their records, by either invoking thejiy-isdiction of the High Court under Article 226 of fhe Constitution bf India or by filing applications before the Administrative Tribunals conGemed, or even filing suits for adjudicafion as to whether the dates ofbirth recorded were correct or not." 11, The ratio laid dowh by the Supreme Court with regard to correction of date ^ ofblrth in service record in the matter ofSecretafy & Commissioner, Homei Depsatment (supra) has been subsequenfly followed in tlie matter of State'of Gujarat and others v. Vali Mohd. Dosabhai Sindhi . i (2003) 6 SCC 483 (2006) 6 SCC 537 £- 12. In the matter of Seema Ghosh v.-Tata Iron & Steel Co. , it was held that in absence of challenge to the opinion of the Medical Board, the petitioner is estopped from challenging the correctness of the opinion of the Medical Board after his retirement. 13. Applying the well settled principles of law as laid down by the Supreme Court to the facts of the case, where the petitioner was examined by the Medical Board on 13.08.1972, 04.12.1990 and 20.10.1995, her age was reeorded accordingly holding the date ofbirth ofthe petifioner as 13.08.1943. The petitioner has not produced any document which is irrefutable aud the substantial proof to establish the date ofbirth as on 09.02.1947. The instant declaration as prayed by the petitioner, even .otherwise cannot be issued in exercise of its power under Article 226 of the Constitution that the date of birth ofthe petitionerto be held as 09.02.1947. 14. In view ofthe foregoing and for the reasons mentioned hereinabove, Ais petition isdismissed. No order asto costs. i.' sd/- SatishK.Agmlibtri f- Judge Amit (2006) 7 SCC 722