1. The petitioner has invoked Articles-14 and16 of the Constitution, mainly for setting aside the action of the respondent authorities of changing his date of birth in the service record from 27.10.1945 to 27.10.1944 with the consequential relief of directing the respondent authorities to continue him in service on the basis of the date of birth recorded in Service Book. Even, as the petition was filed on 20.10.2002, though, the petitioner was to retire on 31.10.2002, and taken-up for admission hearing on 30.10.2002, a prayer is made in advance in Para-8(C) to direct the respondent authorities to pay all consequential benefits to the petitioner considering the petitioner in the service till 31.10.2003. After the initial order of admission on 30.10.2002, the petition does not appear to have been listed or pressed for hearing for a whole decade.
2. Learned Counsel, Mr. Vaibhav Vyas, for the petitioner clearly conceded that there was no evidence annexed with the petition to suggest that correct date of birth of the petitioner was 27.10.1945 and admittedly following facts stated in the affidavit-in- reply of the Under Secretary, General Administration Department, are not denied.
“4. It is respectfully submitted that the petitioner by way of the present petition has challenged the decision of the respondent authorities in retiring the petitioner on 31.10.2002 as the petitioner completes 58 years of age considering his date of birth as 27.10.1944. the Respondent authorities have considered the date of birth of the petitioner as 27.10.1944 and not as 27.10.1945 as stated by the petitioner for the following reasons:
(1) The Gujarat Public Service commission recommended to the Government the petitioner's name for the post of research Officer Class II. The birth of the petitioner was shown as “27.10.1944” which was on the basis of an application along with copies of School Leaving Certificate and S.S.C.E. Certificate of the petitioner made to the Gujarat Public Service Commission. (Annexed hereto and marked as Annexure-I is the copy of the said document).
(2) On 22.03.1983, the petitioner made an application that his birth date was 27.10.1949 and accordingly change be effected, but the Government rejected the application on 16.5.1983 on the ground that the application was made after 5 years from the d ate of the first appointment in the State Government considering the provisions of Government Resolution dated 8.5.1978 issued by the General Administration Department.
(3) On the date of application, I.e. on 22.3.1983, the petitioner contended that his birth date on government record was 27.10.1944 (and not 27.10.1945). Looking to the above facts, it is not possible to accept that petitioner's contention that the office of the Director, Social Welfare had opened his service book during his tenure from 31.3.1978 to 2.4.1982 in that office and that office verified and recorded his birth date as 27.10.1945 in the service Book.
(4) In reply to the query raised by the Director of Economic and Statistics, the petitioner addressed a communication dated 19.12.1994 stating that by mistake his date of birth might have been mentioned as 27.10.1944 or 27.10945, but actually his date of birth was 27.10.1949 and as an evidence the petitioner had attested an affidavit filed by his father. But Government rejected the application 17.1.1995 after verifying all necessary records and decided that the birth date of the petitioner was 27.10.1944 and not 27.10.1949 as earlier state. This amply evidences that the petitioner himself confessed in his above mentioned application dated 19.12.1994 that 27.10.1945 was not his date of birth. In the fact, in the said application his date of birth was shown as 27.10.1949.
(5) Before the petitioner joined the State Government service, the petitioner has served as Class-III employee in the post and Telegraph Department in the Central Government from 5.2.1973 to 30.3.1978. His service in the Central Government from 5.6.1973 to 30.3.1978 has been joined with the State Service.
(6) In the service book for his Central Government service the birth date of the petitioner has been recorded as 27.10.1944.
(7) That the Government had verified records and fixed 27.10.1944 as the date of birth of the petitioner. The petitioner has been replied vide letters dated 16.5.1983 and 17.1.1995 to this effect and thus the Director, Economic and Statistics had prepared pension papers in October 2000 in which the date of birth of the petitioner was treated as 27.10.1944.
(8) The petitioner for his application dated 6.7.2001 addressed to the Director, Economic and Statistics, was replied on 18.89.2001 by the Director of Economic and Statistics(Annexed hereto and marked as Annexure-II is the copy of the said reply dated 18.8.2001). “
(9) On the basis of the legal records, it was established that date of birth of the petitioner was 27.10.1944 and hence he was asked to retire on 31.10.2002.
(10) The contents of para 3(5) of the petitioner are denied. The Director of Economic & Statistics is Head of the Department. He has given opinion for the birth date of the petitioner on being asked by the Government. The decision is taken by the State Government.
(11) Looking to the fact mentioned herein above the decision of the Government to retire the petitioner on 31.10.2002 is correct and there is no point for the petitioner to approach this Hon'ble Court.
(12) It is true that by mistake 27.10.1945 was mentioned as the birth date in the Service Book of the petitioner. When it came to the notice of the Government, the Government had decided to correct the same and informed the Director, Economic and Statistics vide letter No.AAK-1093-1866-S dated 17.1.1995 to consider the birth date of the petitioner as 27.10.1944 instead of 27.10.1945.”
3. As against the only argument of the petitioner that the Service Book of the petitioner, initially, stated the date of birth of the petitioner to be 27.10.1945, which was corrected to 27.10.1944, it is stated on oath by the Under Secretary, GAD, as under:
“5. ... His service record was to be maintained by the Pay and Accounts Officer, Ahmedabad at that time as per Bombay Treasury Rules 1960. from 1.10.1986, the petitioner's service book was to be maintained by the office of the District Statistical Officer, Mehsana, as per the provision of para-4 (VI) of the Finance Department's Government Resolution No. TJR-1086-1259-Z dated 18.9.1986 as the petitioner was working in that office at that time and the petitioner himself was the Drawing and Disbursing Officer.”
4. In view of the above undisputed facts, it is clear that not only the petitioner had made claims about further postponing of his date of birth, but, he was informed in writing vide letters dated 16.05.1983 and 17.01.1995 about his correct date of birth, which has to operate in the matter of his date of retirement. Not only that, but, two years before the date of this retirement, the petitioner was specifically informed in writing by letter dated 09.10.2000 that he was to retire on 31.10.2002 and necessary details for preparing the pension papers were called from him. In spite of these facts, the petitioner approached this Court during the last three days of his service and the only argument advanced on his behalf, after 10 years of pendency of the petition, is that he was not given an opportunity of hearing before carrying out correction of the date of birth in the Service Book. In fact, said correction in the Service Book also appears to have been carried out pursuant to the letter dated 17.06.1995, which letter or the replies dated 16.05.1983 and 17.01.1995 to the petitioner have never been challenged in any Court.
5. The above record of facts clearly reveal an attempt at abusing the process of Court for monetary benefits arising out of an additional year of service. It does not lie in the mouth of the petitioner to submit that in spite of the previous clear communications regarding his correct date of birth and his date of retirement, the incorrect date of birth originally entered in the service book ought to have been relied upon till he was given an opportunity of hearing for correcting it or that in spite of correct date of birth being known, he ought to have been continued in service after reaching the age of superannuation. The petitioner has retired as Joint Director of Economics and Statistics with the State Government, and therefore, cannot be presumed to have been misled by anyone. Therefore, in the above circumstances, the petition has to be dismissed with appropriate amount of costs for stark and conscious abuse of the process of the Court for an undue benefit, on the basis of technical or dishonest plea.
6. Accordingly, petition is DISMISSED with costs, quantified at Rs.15,000/-, which shall be paid within ONE MONTH by the petitioner to respondent No.2. Rule is discharged.
(D.H.WAGHELA, J.) Umesh/