JUDGMENT
Swatanter Kumar, J.
Page 2642
1. In this petition under Article 226 of the Constitution of India the petitioner claims to have raised a substantial question of law of general public importance that once a change is effected in the Higher Secondary Certificate in relation to date of birth, the defense authorities are duty bound to alter their records accordingly and give advantage for further years of service to the claimant.
Page 2643
2. Brigadier Ashok Kumar Singh was commissioned as an officer in the Indian Army and inducted in the core of infantry. At the time of his commission the date of birth in the service documents and the Higher Secondary Examination Certificate was reflected as 16.8.51. The date of birth as indicated above remained unchanged or not objected to for all these years. The petitioner was permitted to appear in the 42nd National defense Academy Entrance Examination as provisional candidate. The petitioner qualified the said examination and he even received instructions to join in July, 1969. However, his candidature was cancelled by the U.P.SC for non-submission of corrected date of birth. According to the petitioner his correct date of birth was 16.8.53. On 5.11.03 he made a representation before the West Bengal Board of Secondary Education for correction of the date of birth in view of judgment passed by the Calcutta High Court. On 21.8.04 the petitioner moved an application for correction of his date of birth before the competent authority in the Ministry of defense. Vide letter dated 28.8.04 the competent authority replied to the petitioner that he may re-submit the application with the authenticated birth proof as corrected by the West Bengal Board of Secondary Education. In furtherance to his representation dated 5.11.03, the petitioner received a letter dated 23.12.04 from the West Bengal Board of Secondary Education requiring him to deposit the requisite fee of Rs.600/- Along with admit card and certificate for necessary action. The petitioner filed the requisite documents. It is further the case of the petitioner that after due enquiry the West Bengal Board of Secondary Education on 24.1.05 corrected the date of birth of the petitioner as 16.8.53 in place of 16.8.51. After correction of the date of birth in the school certificate the petitioner made representation to the Army Headquarter on 21.2.05 which was rejected by the competent authority as per its order dated 24.2.05 primarily on the ground that such application could not be entertained after lapse of two years from granting of the commission to the officer. The petitioner has challenged the validity of the order dated 24.2.05 in the present writ petition.
3. According to the petitioner, once the correction has been carried out by the School Secondary Board of West Bengal then it is obligatory upon the authorities to make the consequential changes in the service record of the petitioner in regard to his date of birth. Thus, the respondents have no jurisdiction to reject the said application. It is further contended that the alleged bar of two years is not attributed in the facts and circumstances of the case as the action of the petitioner in moving the authorities does not suffer from delay as he had approached the authorities immediately after the correction was made by the Board of Higher Secondary Education. While invoking the principles of Article 14 of the Constitution of India, it is also contended that the date of birth of Wing Commander M.Murgesan was also corrected by the respondent after two years of the commission. The respondents have filed a counter affidavit. It is stated that after thirty years the petitioner has no right in law and fact to get his date of birth corrected in his service records and in fact even the present writ petition is not maintainable. The petitioner is an officer of a very senior rank and has maintained and acted upon for all these years on the basis that his date of Page 2644 birth is 16.8.51 and no attempt was made by him for correcting the date of birth, if the same was wrong during this long period. The U.P.S.C application for Indian Military Academy Examination and other documents with the respondent authorities including the verification form filled in by the petitioner himself in his handwriting shows the date of birth as 16.8.51 and there are no circumstances much less any compelling circumstances which would make it obligatory upon the authorities to accept the alterations in the date of birth of the petitioner. In terms of the memorandum issued by the Govt. dated 21.4.64 which was in force even at the time when the petitioner joined the service, it was stated that application for change of date of birth cannot be entertained after the lapse of two years from the grant of first commission to the officer. Thus, the application itself was barred and has rightly been rejected. The averments made by the petitioner in regard to 42nd National defense Academy Entrance Examination in the year 1968 and request of his father for correcting the date of birth are denied on the ground that no such records are available with the respondents. In regard to plea of discrimination, it is stated that facts of that case were different and the petitioner has not been treated differently as the facts in the case of the petitioner are entirely different.
4. As already noticed, the main thrust of the respondents for rejecting the application of the petitioner is on the circular issued by the Ministry of defense, Government of India on 21.4.64. The said office memorandum reads as under:
Subject : Change in date of birth ” of member of the defense Services.
———-
The undersigned is directed to refer to this Ministry’s Memo. No. 757/D(MS)/5046-M/D(Coord) dated the 23rd June 1954 (copy enclosed for ready reference) and to say that no request for change of birth will be entertained after the lapse of two years from the date of (i) grant of first commission in the case of commissioned officers and (ii) enrolment in case of JCOs/Other ranks and equivalent in the other two services.
(S.V.Iyer)
Deputy Secretary to the Government of India
All Sections of the Ministry of defense
Army Headquarters (MS Coord) and (Org.Dto)
Naval Headquarters (PS Dto)
Air Headquarters (PS Dto)
D.G.A.F.M.S
D.G.O.F Calcutta
All other Inter Service Organisations
Copy to :- All Deputy Secretaries.
Ministry of Home Affairs (Est.-A).
5. In terms of the above circular, the application for change of date of birth ought to be moved by the aggrieved person within a period of two years from the date of grant of first commission to the officer. Admittedly, the petitioner was commissioned as an officer in the year 1974 and at best he could move such an application by the year 1976. For the first time he has moved this application to the authorities concerned in the year 2004-05. From the records Page 2645 which were produced by the respondents before the Court during the course of hearing, it is clear that the petitioner had filled in the form in his own handwriting and there he had given his date of birth as 16.8.51. The ‘Verification Form’ which was required to be completed by the candidate himself also contained a verification clause in which it was stated that the statement made in the said application were true to the best knowledge and belief of the applicant. The mere fact that the Secondary Board in his wisdom has changed the date of birth of the applicant would not necessarily imply that the defense authorities are bound to accept the same. The discretionary power is vested in the authorities and if their rules do not permit such a correction after more than thirty years, their declining to accept such a request of the petitioner cannot be faulted on the ground of arbitrariness or discrimination as such.
6. It was on the basis of the declaration made by the petitioner in his form that he was born in 1951 he was considered eligible and was given an appointment. Now, he cannot be permitted to turn around to say that he was born in the year 1953 and thus should be given two years further period of service in the army. By making the earlier declaration the petitioner had gained the advantage of two years of service in the beginning of his career and now to give him further two years extension by carrying out the correction, may tantamount to give him an undue advantage towards the end of his service career. The office memorandum issued by the authorities is expected to be carried out by the authorities and if the claim of the applicant is barred by time, it normally would not be lightly waived unless there were exceptional circumstances for doing so in the wisdom and discretion of the authorities concerned.
7. It is difficult even for the Court to believe that the petitioner would have disclosed and written in his own handwriting incorrect date of birth repeatedly at different times i.e in the year 1971 as well as in 1972. It may also be noticed that in the Indian Military Academy Examination form the petitioner again in coulmn 7 had declared his date of birth as 16.8.51. In fact, the petitioner would be estopped from challenging the correctness of the date of birth as filled in by him at different occasions in his own hands, by his own conduct. Learned counsel appearing for the petitioner heavily relied upon the judgment of the Supreme Court in the case of Union of India v. C.Rama Swamy and Ors. to contend that the respondents ought to take into consideration the corrected date of birth of the petitioner in furtherance to the certificate issued by the Secondary Board. This contention is void of any substance firstly because C.Ramaswamy was a member of the IPS and was governed by the relevant rules applicable to the Indian Administrative Services. Rule 16-A provides for determination of date of birth and sub-Rule 4(a) indicates that every member of the service holding office immediately before the commencement of the All India Services Commencement Rules, 1971 shall within three months from such declaration make a declaration as to the date of birth. Such a chance was given for Page 2646 correcting the date of birth on the amendment of the said rules. The Supreme Court also held that sub-Rule 4 is related to correction in date of birth in the service record of the officer resulting from a bonafide clerical mistake in acceptance of date of birth. The facts and question of law before the Supreme Court was distinct and different than in the present case. In the present case not only that the petitioner has repeatedly disclosed his date of birth as 15.8.51 but had acted thereupon even by taking the subsequent examinations. In other words not only that the respondents had accepted the date of birth declared by the petitioner which was supported at the relevant time by a certificate issued by the Secondary school, but even the petitioner himself accepted and acted upon the fact that his date of birth was 15.8.51. The subsequent conduct of the parties to the event, is a relevant consideration before the Court and can tilt equities between the parties.
8. It is difficult to provide a straight-jacket formula which would be uniformally applicable to the cases without reference to peculiar facts and circumstances of each case. Whenever a person joins service and makes declaration of his date of birth in his own handwriting, normally he cannot go back from such an admission unless there were exceptional and compelling circumstances of a bonafide mistake. In the case of Harchand Singh v. Punjab State 2004 (4) SLR (Pb.& Hry.) 349, the court dismissed the petition on the ground that the application for correction had been made after 20 years and the claim of the petitioner was belied to his own earlier documents and in fact, he took two years advantage in entering the Government service as he could not enter the service unless he was 18 years old. In the case of P.S. Bheemeswara Rao v. Regional Joint Director of Intermediate Education 2004(3) SLR (Andra Pradesh) 347, the court also stated the principle that a party at the fag end of his career cannot seek correction of entries in the service record as entry regarding date of birth in service record is final. Of course, it may have some exceptions.
9. Latches has been a very material factor in accepting or denying a relief to the petitioner raising such a claim. In the case of Sheo Pujan Lal v. State of Bihar 2004(1) SLR (Patna) (DB) 593, the court held that a petitioner, who had declared his age in the matriculation certificate and such a date was entered in the service record, later on, cannot be heard to argue that there was a different date of birth more advantageous to the petitioner and he had not declared correct date of birth in his certificate. The Supreme Court in the case of State of Punjab v. S.C. Chadha 2004(2) SLR (SC) 741 held as under:
Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction, of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam v. Daksha Prasad Deka 1970 (3) SCCF 624 : 1971 (2) SLR 14 (SC), Page 2647 this Court said that the date of the compulsory retirement “must in our judgment, be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure.” In the case of Government of Andhra Pradesh v. M.Hayagreev Sarma the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above. It was inter alia observed by this Court:
The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth.
xxxxxxxxxxxxxxxx
As observed by this Court in State of Tamil Nadu v. T.V. Venugopalan and State of Orissa and Ors. v. Ramanath Patnaik when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed in R.Nirubakaran’s case (supra) was adopted.
xxxxxxxxxxxxxxx
In view of the aforesaid, the inevitable conclusion is that the High Court was not justified in interfering with the orders of the Government and directing correction of the date of birth in the service records of the respondent as now claimed by him. The appeal is allowed but without any order as to costs.
10. The above enunciated principles clearly demonstrate that a discretion is vested in the appropriate authorities of the respondents to accept or decline the request of the petitioner for change of date of birth. Unless the discretion is exercised arbitrarily or offends specific rules which are to the benefit of the employee, the court would not normally disturb such discretion. In the present case, the petitioner is a senior officer and was expected to act with greater care in regard to the matter of his service record. The petitioner consistently Page 2648 accepted and acted upon his date of birth being 16.8.51 by his declaration in writing and otherwise. We are unable to see any patent error in exercise of discretion by the respondents and particularly in face of instruction dated 21.4.64 issued by the Government.
11. In view of the above discussion and particularly the facts and circumstances of the present case, we are of the considered view that the petitioner is not entitled to the prayed relief. Consequently, we dismiss this writ petition, while leaving the parties to bear their own costs.