S.S. Nijjar, J.
1. The Petitioner has filed this Petition under Article 226 of the Constitution of India with a prayer for issuance of Writ of Mandamus or any other appropriate writ order or direction directing the Respondents to enter the correct date of birth of the Petitioner in the service record as 15.5.1934 instead of 15.5.1930. His request for correction of the date of birth was rejected by the Respondents on 14th February, 1990.
2. The Petitioner was working as Mazdoor in the Bombay Housing & Area Development Board (hereinafter referred to as 'the Board'). He was employed in the Board in 1959 as daily-wage-mazdoor. Thereafter he was absorbed in work-charged establishment in 1963 again as a mazdoor. He was made permanent from 1.4.1970. He has studied upto Standard VII. He appeared for the Standard VII in 1952, but failed. He has done his schooling from Jeevan Shikshan Vidya Mandir, Vechle, Dist. Satara upto Standard IV and then from Zilla Parishad School, Kodoli, Dist. Satara and Nagar Palika School No. 1, Satara in Standard VII. In all the School Leaving Certificates the date of birth is recorded as 15.5.1934. It is the case of the Petitioner that when the temporary employees of the Board were made permanent, his date of birth was wrongly written by the concerned clerk as 15.5.1930, instead of 15.5.1934. The Petitioner was, however, not aware that his date of birth was recorded in the Board's record as 15.5.1930. It is his case that he came to know about incorrect date of birth in the service record only in the year 1988. He, therefore, wrote a letter dated 26th February, 1988 to the Secretary of the Board, for correction of the record. The Petitioner was asked to produce the original School Leaving Certificate and other documents in support of his date of birth. The Petitioner by application dated 9th March, 1988 forwarded the School Leaving Certificate and requested for the change of date of birth recorded in the service record. By letter dated 7th July, 1988, the Petitioner was informed by the Board that his request for change of date of birth cannot be considered as per the rule of Bombay Civil Service Rules (B.C.S.R.). It was further stated that as per the Government record, the Petitioner's date of birth will be 15.5.1930.11 appears from the record that on 30th September, 1988, the union to which the Petitioner belonged, also took up cause of the Petitioner. By letter dated 30th September, 1988, written to the Chief Officer of the Board, the union pleaded that as per the rules, if the date of birth is wrongly recorded by mistake of the officer, then the same can be rectified and changed. It was pointed out that in case of Class IV servants, they are not required to see the service record very often. Therefore, the limitation of five years provided in the rules are not to be made applicable to the case of the Petitioner. Thereafter the Petitioner was again informed by letter dated 11th January, 1989 that his request cannot be considered as per the B.C.S.R. He was informed that once the date of birth is recorded in the service book, it cannot be changed even if it is noticed later on that the mistake is done by oversight. Further applications made by the Petitioner met the same fate. By letter dated 10th July, 1989 he was again informed that as per the notification of the Maharashtra Government dated 13th December, 1974, the change in date of birth in the service record can be made within five years from the date of service. After five years of service, if any Government servant applied for change in date of birth in service record, such request cannot be granted. The Petitioner was directed not to make any further correspondence in this respect. It appears that in desperation the Petitioner again sent a representation on 1st November, 1989. He reiterated his stand that the date has been wrongly recorded due to the negligence of the officer. As a consequence of this negligence, the petitioner has to retire from service 4 years earlier. He submitted that this has caused mental torture and he has to sustain huge monetary loss. He submitted that many times he has applied to the Board and also furnished legal documents in support of the date of birth. The request has not been considered. He pleaded that he has now become confused and mentally disturbed. He, therefore, pleaded again for sympathetic consideration. He reiterated that he had only studied upto 7th Standard and that too in Marathi medium. He again mentioned about all the School Leaving Certificates which bear his correct date of birth i.e. 15th May, 1934. He categorically stated that after the date of birth was wrongly recorded, no officer of the Board inspected the service book. He was never given any opportunity for correcting the date of birth. He was never asked to go for any medical examination for fixing the date of birth. He pleaded again for sympathetic hearing of his case. Even this request had been rejected by order dated 14th February, 1990, which is impugned in the present Writ Petition. In this order, it is also stated that as per B.C.S.R. and as per the notification of Maharashtra Government dated 23rd December, 1974, the concerned person has to make any change in his service book within five years from the date of appointment. After the period of five years, the Maharashtra Government has informed that no change in respect of date of birth can be made in the service book. Therefore, the request has been rejected. When the Writ Petition came up for hearing, the learned Single Judge of this Court summarily dismissed the Writ Petition on 6th June, 1990. The learned Single Judge also dismissed the Writ Petition on the ground that B.C.S.R. provide that alteration of age declared is permitted provided it is within five years of declaration. The School Leaving Certificates are not reliable. It is also held that the Petitioner had studied upto matriculation and would not have given wrong age after attaining 33 years. Against this order of summary dismissal, the Petitioner filed Appeal being Appeal No. 1238 of 1990. The Appeal was admitted on 17th December, 1990 and he was permitted to continue in service by interim order. It was directed that the question of emoluments or wages for the period from the date on which the Petitioner was retired till 31st December, 1990 will be decided at the hearing of the Writ Petition.
3. The Respondent Board seems to have taken a very technical stand on the rules. Nobody cared to check the evidence in the form of School Leaving Certificates which were presented by the Petitioner before the authorities of the Board. Time and again he was informed that there is a complete embargo in alteration of the date if the application is made after a period of five years. Procedure for writing the events and date of birth in the service book is prescribed by Rule 38 of the Maharashtra Civil Services Rules, 1981. Rule 38 of Sub-rule (2)(f) is as under:
When once an entry of age or date of birth his 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.
4. A perusal of this rule clearly shows that the wrong entry of the date of birth could be corrected if the Petitioner was able to satisfy the authorities that the entry was due to want of care on the part of some person other than the Petitioner, or is an obvious clerical error. The instructions which appeared immediately after Rule 38 Sub-rule (2)(f) are as under:
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.
5. A perusal of this instruction clearly shows that there is no total embargo on entertainment of applications after five years. The rule merely states that normally no application for alteration should be entertained after a period of five years. If the authorities had cared to co-relate the dates of birth as mentioned in the School Leaving Certificates with the entry in the service record, it would have become apparent that it was merely a clerical error. The applications of the Petitioner were summarily rejected on the ground that the same cannot be entertained as they have been made after a period of five years. Unfortunately, the Writ Petition met the same fate and was summarily rejected on 6th June, 1990 for the same reasons. When the matter came up before the Division Bench in appeal against summary dismissal of the Writ Petition, the appeal was allowed and the Petitioner was permitted to continue in service on the basis of the interim directions. The Division Bench observed as follows:
Appeal admitted. Respondents waive service. Appeal taken up for hearing.
2. This appeal is against summary dismissal of the appellant's Writ Petition No. 1696 of 1990 by the learned Judge by his order dated 6th June, 1990.
3. We have heard Counsel on either side. We directed summons to be issued to three school authorities as per our order dated 26th November, 1990. Pursuant to our direction, the three authorities appeared through their representatives and produced before us the original registers as per the- summons. We have gone through the original registers. We are more than satisfied that these registers were genuine and authentic and maintained in the normal course of administration by the school authorities. In each of these registers of three different schools the birth date of the petitioner has been mentioned as 15th May, 1934. The petitioner's serial number in the first register is at 13 old book, in the second register at 70 and in the third register at 1516. There is, in the circumstances, considerable substance in the contention of the appellant that his real date of birth is 15th May, 1934, and consequently he was not due for retirement on the basis of his alleged date of birth in 1930. The writ petition, therefore, deserves to be admitted.
4. The appellant-petitioner also deserves interim relief pending the hearing and disposal of the writ petition. Directions accordingly are being passed below.
5. In the result, the following order is passed on this appeal:
(a) The appeal is allowed. The impugned order dated 6th June, 1990 is set aside. Writ Petition No. 1696 of 1990 is admitted and rule issued thereon making it returnable before the learned Judge taking writ petitions for hearing on 25th February, 1991. Respondents waive service of the writ petition.
(b) The respondents are directed that pending the hearing and final disposal of the writ petition, the petitioner should be permitted to join services with effect from 1st January, 1991 on all usual terms and conditions of his said service. The respondents taking back the petitioner in service will be without prejudice to their rights and contentions in the writ petition.
(c) The question of emoluments or wages for the period on which the petitioner was retired till 31st December, 1990 will be decided at the hearing of the Writ Petition.
(d) The amount of Rs. 1,000/- deposited by the appellant in this Court should be permitted to be withdrawn by the appellant.
(e) Prothonotary to act on the certified copy of the minutes of this order.
6. A perusal of the aforesaid observations clearly shows that the stand of the Petitioner has been vindicated before the Division Bench. The Division Bench has come to the conclusion that in each of the registers of three different schools, the birth date of the Petitioner has been mentioned as 15th May, 1934, In view of the aforesaid finding of fact recorded by the Division Bench, no meaningful argument could be put forward by the counsel for the Respondents. I am of the considered opinion that the Respondents have acted wholly1 arbitrarily in rejecting the prayer of the Petitioner for change in the date of birth. Once the application was made, it was the bounce duty of the Respondents to examine the evidence which has been submitted by the Petitioner to see as to whether a false case is put forward by the Petitioner or not. The department ought to have also taken into consideration that it was dealing with a case of semi-literate class IV employee. It was the pleaded case of the Petitioner that class IV employees have hardly any occasion to examine the service book. The Petitioner came to know about the wrong entry in the service book only in the year 1988. None of the reasons have been examined by the Respondents while rejecting the claim of the Petitioner. During the pendency of the petition, the Petitioner took out Notice of Motion for a direction to the Respondents to pay the post-retirement benefits. This Notice of Motion was decided on 15th December, 1995. The Respondents had agreed to pay the post-retirement benefits upto 31st May, 1990. Thus, even though the Petitioner had actually worked upto 31st May, 1994, yet the retirement benefits have not been paid for the aforesaid period. The Petitioner was ordered to be retired on 1st June, 1990. Thereafter he was reinstated in service in pursuance of the orders of the Division Bench on 1st January, 1991. The Petitioner is, therefore, also entitled to the salary for the period he was illegally kept out of service.
7. In view of the above, the Petition is allowed. The impugned order dated 14th February, 1990 is hereby quashed. Respondents are directed to pay the salary of the Petitioner from 1st June, 1990 till 31st December, 1990. The Respondents are also directed to release the additional retirement benefits by counting the period 31st May, 1990 till 31st May, 1994. The retirement benefits are now to be calculated on the basis that the Petitioner continued to be in service until 31st May, 1994. The Respondents are directed to release the salary and the remaining retirement benefits of the Petitioner within a period of three months from today.
Petition allowed in the aforesaid terms.
Certified copy expedited.