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Service Laws: Maharashtra Civil Services (General Conditions) Rules, 1981 – r.38(2)(f) – Date of birth – Record of, in service book at the time of entry into service – Application for correction of date of birth at the end of the service career after a lapse of twenty six years – Held: Cannot be entertained – Also, in view of the Notification dated 24.12.2008 and the instructions in the Rules, no application for alteration of date of birth after five years could be entertained – Thus, order passed by the High Court, that date of birth could be permitted to be changed at the fag end of the career, not sustainable. In the year 1978, the respondent was appointed as a teacher. His date of birth was recorded as 02.06.1949 in his service book. The school leaving certificate was submitted as the proof for the same. In the year 2004, the respondent filed an application before the Education Officer seeking correction of his date of birth in the service record of the Tehsildar as 03.05.1951. The application was rejected. The Head Master, Zilla Parishad also rejected the application. The respondent then filed a writ petition. The High Court allowed the petition holding that the date of birth could be permitted to be changed at the fag end of the career of the respondent. Therefore, the appellant filed the instant appeal.

ZP(Zilla Parishad) High School Mallavolu

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 1

 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL No. 9704 of 2010
 ( @ SPECIAL LEAVE PETITION(C)NO.8779 OF 2007)

STATE OF MAHARASHTRA & ANR. ... APPELLANT(S)

 VERSUS

GORAKHNATH SITARAM KAMBLE & ORS. ... RESPONDENT(S)

 J U D G M E N T

DALVEER BHANDARI, J.
 Applications for exemption from filing Official

Translation and certified copy of the impugned order are allowed.

 Leave granted.

 Heard learned counsel for the parties.
2. This appeal emanates from the judgment of the High Court

of Judicature at Bombay delivered in Writ Petition No.6531 of 2006

dated 19th January, 2007.

3. Brief facts which are necessary to dispose of the appeal

are recapitulated as under :

4. Respondent no.1 was appointed as as Assistant Teacher on

13.02.1978. He filed a Secondary School Leaving Certificate

indicating 02.06.1949 as proof of his date of birth. In the service

record also consequently the same date of birth was recorded.

5. On 23.05.2004, respondent no.1 filed an application to the

Education Officer (Primary), Zilla Parishad, District Sangli

complaining that though in the School Leaving Certificate his date

of birth is 02.06.1949 whereas, in fact the date of birth in the
 2

record of the Tahsildar is 03.05.1951, so the date of birth be

corrected in the service record of the respondent according to the

record of the Tahsildar.

6. The application, filed by the respondent no.1 was rejected

by the Block Education Officer on the ground that the same is time

barred and was not filed within five years from the date of joining

i.e. 13.02.1978. He referred to Rule 38(2)(f) of the Maharashtra

Civil Services (General Conditions) Rules, 1981 (for short 'the

Maharashtra Rules, 1981') and the notification issued by the State.

Relevant rule reads as under :

 "38(2)(f): When once an entry of age or date of birth
 has been made in a service book no alteration of the
 entry should afterwards be allowed, unless it is
 known, that the entry was due to want of care on the
 part of some person other than the individual in
 question or is an obvious clerical error."

7. Respondent no.1 filed another application to the Head

Master, Zilla Parishad primary school, Tujarpur, Taluka Walva,

District Sangli. This application was also rejected on 09.12.2004.

8. Respondent no.1 again filed an application before the

Education Officer (Primary), Zilla Parishad, Sangli on 22.07.2006.

When respondent no.1 did not receive any satisfactory reply, he

filed a Writ Petition No.6531 of 2006 before the High Court of

Judicature at Bombay. The Writ Petition filed by the respondent was

allowed by the impugned judgment dated January 19,2007. The High

Court, in paragraph 2 of the impugned judgment, noted Rule 38(2)(f)

of the Maharashtra Rules, 1981 but while interpreting the rule, the

High Court has virtually re-written the rule and in paragraph 5 of
 3

the impugned judgment, the High Court observed as under :

 "....under the instructions issued, it is proved that
 the entry should not be normally changed after a
 period of five years...."
The expression "normally" has not been used in the Rules and

interpretation of this expression has led to an erroneous finding in

the impugned judgment. In the impugned judgment the High Court

failed to give any sustainable or acceptable reasons as to why

the date of birth was permitted to be changed at the fag end of the

career of respondent no.1.

9. The High Court, in the impugned judgment, has failed to

notice the settled legal position which is crystallized by a series

of judgments of this Court. All the judgments have consistently

taken the view that change in the date of birth cannot be permitted

at the fag end of the service career. In the instant case,

according to the Notification dated 24th December, 2008, it is made

clear that no alteration of the entry should be allowed after five

years.

10. The spirit and the intention of this rule is reflected in

a series of judgments of this Court. After the rules, a

notification has been issued by the Government of Maharashtra. The

relevant part of the notification dated 24th December, 2008 issued by

the Finance Department, Government of Maharashtra, is set out as

under :
 4

 " FINANCE DEPARTMENT
 Mantralaya, Mumbai 400032, dated 24th December, 2008
 NOTIFICATION
 CONSTITUTION OF INDIA

 No.MCS 1007/C.R.7/07/SER-6-In exercise of the powers
 conferred by the proviso to article 309 of the
 Constitution of India, the Governor of Maharashtra is
 hereby pleased to make the following rules further to
 amend the Maharashtra Civil Services (General
 Conditions of Services) Rules,1981, namely:-

 1. These rules may be called the Maharashtra Civil
 Services (General Conditions of Services) (Amendment)
 Rules, 2008.

 2. In rule 38 of the Maharashtra Civil Services
 (General Conditions of Services) Rules, 1981,
 (hereinafter referred to as "the principal Rules"),
 in sub-rule (2), under the heading Instruction,-

 (a) for Instruction No.(1) and (2), the following
 Instructions shall be substituted, namely:-

 "(1) No application for alteration of the entry
 regarding date of birth as recorded in the service
 book or service roll of a Government servant, who has
 entered into the Government service on or after the
 16th August 1981, shall be entertained after a period
 of five years commencing from the date of his entry
 in Government service.

 (2) Subject to Instruction (1) above, the correct
 date of birth of a Government servant may be
 determined, if he produces the attested xerox copy of
 the concerned page of the original birth register
 where his name and date of birth has been entered as
 per the rules for the time being in force regarding
 the registration of birth, and maintained at the
 place where the Government servant is born, such
 proof should be considered as an unquestionable proof
 for change of date of birth in service record....."
 [Emphasis supplied]
11. According to the notification, from 16.08.1981 the date of

birth of Government servants cannot be changed after five years

from 16.08.1981. Assuming this notification is applicable only for

employees who joined after 16.08.1981, even then according to the

'instruction(1)' of the Maharashtra Rules, 1981 that no application
 5

for alteration of entry regarding date of birth should be

entertained after a period of five years.

 The said instruction is reproduced as under :

 "(1)Normally, no application for alteration of the
 entry regarding date of birth as recorded in the
 service book or service roll of a Government servant
 should be entertained after a period of five years
 commencing from the date of his entry in Government
 service........"
12. Apart from the notification and the said instruction this

Court in a series of cases have categorically laid down that the

employees should not be permitted to change the date of birth at the

fag end of his service career. In the instant case the application

of alteration has been filed at the fag end of his service career

after a lapse of twenty eight years.

13. In Union of India Vs. Harnam Singh, (1993) 2 SCC 162, this

Court was confronted with almost similar facts. The Court laid down

as under :-

 "In the instant case, the date of birth recorded at
 the time of entry of the respondent into service as
 May 20, 1934 had continued to exist, unchallenged
 between 1956 and September 1991, for almost three and
 a half decades. The respondent had the occasion to
 see his service-book on numerous occasions. He signed
 the service-book at different places at different
 points of time. Never did he object to the recorded
 entry. The same date of birth was also reflected in
 the seniority lists of LDC and UDC, which the
 respondent had admittedly seen, as there is nothing
 on the record to show that he had no occasion to see
 the same. He remained silent and did not seek the
 alteration of the date of birth till September 1991,
 just a few months prior to the date of his
 superannuation. Inordinate and unexplained delay or
 laches on the part of the respondent to seek the
 necessary correction would in any case have justified
 the refusal of relief to him. Even if the respondent
 had sought correction of the date of birth within
 five years after 1979, the earlier delay would not
 have non-suited him but he did not seek correction of
 6

 the date of birth during the period of five years
 after the incorporation of Note 5 to FR 56 in 1979
 either. His inaction for all this period of about
 thirty-five year from the date of joining service,
 therefore precludes him from showing that the entry
 of his date of birth in service record was not
 correct."

14. In State of Tamil Nandu Vs. T.V.Venugopalan, (1994) 6 SCC

p.302, this court was clearly of the opinion that the government

servant should not be permitted to correct the date of birth at the

fag end of his service career. The Court, in very strong terms,

observed as under :-

 ".....The government servant having declared his date
 of birth as entered in the service register to be
 correct, would not be permitted at the fag end of his
 service career to raise a dispute as regards the
 correctness of the entries in the service register.
 It is common phenomenon that just before
 superannuation, an application would be made to the
 Tribunal or Court just to gain time to continue in
 service and the Tribunal or courts are unfortunately
 unduly liberal in entertaining and allowing the
 government employees or public employees to remain in
 office, which is adding an impetus to resort to the
 fabrication of the record and place reliance thereon
 and seek the authority to correct it. When rejected,
 on grounds of technicalities, question them and
 remain in office till the period claimed for, gets
 expired. This case is one such stark instance.
 Accordingly, in our view, the Tribunal has grossly
 erred in showing overindulgence in granting the
 reliefs even trenching beyond its powers of allowing
 him to remain in office for two years after his date
 of superannuation even as per his own case and given
 all conceivable directions beneficial to the
 employee. It is, therefore, a case of the grossest
 error of law committed by the Tribunal which cannot
 be countenanced and cannot be sustained on any
 ground....."

15. In Secretary and Commissioner, Home Department and others

Vs. R.Kirubakaran, (1994) Suppl.(1) SCC 155, the Court again
 7

reiterated the legal position that the courts have to be extremely

careful when application for alteration of the date of birth is

filed on the eve of superannuation or near-about that time. The

court observed as under :-

 ".......As such whenever an application for
 alteration of the date of birth is made on the eve of
 superannuation or near about that time, the court or
 the tribunal concerned should be more cautious
 because of the growing tendency amongst a section of
 public servants to raise such a dispute without
 explaining as to why this question was not raised
 earlier......."
16. Learned counsel for the respondent has placed reliance on

the judgment of this Court in U.P.Madhyamik Shiksha Parishad & Ors.

Vs. Raj Kumar Agnihotri, (2005) 11 SCC p.465. In this case, this

Court has considered number of judgments of this Court and observed

that the grievance as to the date of birth in the service record

should not be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal & Ors. Vs.

Pitamber Dutt Semwal, (2005) 11 SCC p.477, the relief was denied to

the government employee on the ground that he sought correction in

the service record after nearly 30 years of service. While setting

aside the judgment of the High Court, this Court observed that the

High Court ought not to have interfered with the decision after

almost three decades.

18. Two decades ago this Court in Government of A.P.& Anr. Vs.

M.Hayagreev Sarma, (1990) 2 SCC p.682, has held that subsequent

claim for alteration after commencement of the rules even on the

basis of extracts of entry contained in births and deaths register

maintained under the Births, Deaths and Marriages Registration Act,
 8

1886, was not open. Reliance was also placed on State of Uttar

Pradesh & Ors. Vs. Gulaichi (Smt.), (2003) 6 SCC p.483, State of

Tamil Nadu Vs. T.V.Venugopalan, (supra), Executive Engineer, Bhadrak

( R & B) Division, Orissa & Ors. Vs. Rangadhar Mallik, (1993)

Suppl.1 SCC p.763, Union of India Vs. Harnam Singh, (supra) and

Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran,

(surpa).

19. These decisions lead to a different dimension of the case

that correction at the fag end would be at the cost of large number

of employees, therefore, any correction at the fag end must be

discouraged by the Court. The relevant portion of the judgment in

Secretary and Commissioner, Home Department & Ors. Vs. R.Kribakaran,

(surpa) reads as under :

 "An application for correction of the date of birth by
 a public servant cannot be entertained at the fag end
 of his service. It need not be pointed out that any
 such direction for correction of the date of birth of
 the public servant concerned 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 of the correction of the
 date of birth, the officer concerned, continues in
 office, in some cases for years, within which time
 many officers who are below him in seniority waiting
 for their promotion, may lose the promotion forever.
 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 correction of his date of birth. As such,
 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 and before any such
 direction is issued, the court must be fully satisfied
 that there has been real injustice to the person
 concerned and his claim for correction of date of
 birth has been made in accordance with the procedure
 9

 prescribed, and within time fixed by any rule or
 order. The onus is on the applicant to prove about
 the wrong recording of his date of birth in his
 service-book."

20. In view of the consistent legal position, the impugned

judgment cannot be sustained and even on a plain reading of the

Notification and the instructions set out in the preceding

paragraphs leads to the conclusion that no application for

alteration of date of birth after five years should have been

entertained.

21. The approach of the High Court in re-writing the

rules cannot be approved or sustained. Consequently, the appeal

filed by the State of Maharashtra is allowed and the impugned

judgment is set aside, leaving the parties to bear their own costs.

 ................J.
 (DALVEER BHANDARI)

 ................J.
 (DEEPAK VERMA)NEW DELHI;
16TH NOVEMBER, 2010
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