JUDGMENT H.C. Mital 1. Shivaji Malviya, the petitioner, admittedly joined the service in the Central Bank of India at Allahabad on 1-1-1961 as a clerla. He was promoted as Officer Grade I and joined as such on 13-3-78 at Zonal Office, Lucknow. At present he is posted as Accountant in Zero Road Branch of the Central Bank at Allahabad. According to him, he had given his date of birth as 29-6-1932 when he entered in the service and the same was recorded in the High School certificate also. In the year 1985 he was required to submit his bio-data after he was promoted as Officer Grade I in the year 1978 and then he noted the discrepancy in the date of birth and found that some body bearing grudge against him just to cause harm to him had made interpolation in his service records. On 20-4-1985 he submitted an application to the Branch Manager with a High School certificate, copy of which is annexure 3 to the writ petition, and the Branch Manager vide his letter dated 24-4-1985 referred the matter to the Regional Office, Varanasi, a true copy of which is annexure 4 to the writ petition. In his letter dated 24-4-1985 the Branch Manager had specifically mentioned that the photostat copy of the High School certificate was correct as he had seen the original of the High School certificate and therein the date of birth of the petitioner was recorded as 29-6-1932. He also recommended for correction of the date of birth of the petitioner. The petitioner again sent a reminder dated 26-9-1989, a true copy of which is annexure 5 to the writ petition. However, the petitioner did not hear anything from the Regional Office till he received a letter dated 7-2-199U from the Branch Manager which contained the reference of the letter dated 24-1-1990 from the Regional Office that bis request for correction of the age has been rejected as he had not applied earlier in accordance with the Circular Letter dated 2nd of October 1970. The petitioner, however, again sent a representation on 13-2- 1990 but that too was rejected and he was asked to retire on 30-6-1990. Being aggrieved, the petitioner has come up to this Court and has filed this writ petition on 19-5-1990. 2. The petitioner, however, again sent a representation on 13-2- 1990 but that too was rejected and he was asked to retire on 30-6-1990. Being aggrieved, the petitioner has come up to this Court and has filed this writ petition on 19-5-1990. 2. The Central Bank of India has contested this petition and in the counter affidavit it is averred by the Bank that in the Bank records through out the date of birth of the petitioner has been shown as 29-6-1930 and at no point of time till 1985 he had raised any protest against it. It is also averred that on 30-8-1986 in the bio-data Form submitted by the petitioner he himself has shown his date of birth as 29-6-1930. In the seniority list of the Officers in Junior Management Grade Scale I, which was circulated in all the Branches of the Bank, the date of birth of the petitioner has been shown v as 29-6-1930 and that was also not disputed by the petitioner till 1985. The seniority list showing the Seniority of various Officers including that of the petitioner as on 1-4-1981 was circulated to all the Branches through the letter dated 5-12-1981. It is denied that any change in the records of the Bank has been made in the date of birth as alleged by the petitioner and that at the last stage when the petitioner was about to retire he has raised this plea for the purpose of extension of service. The fact that in the High School certificate the date of birth of the petitioner is entered as 29-6-1932 has not been disputed by the respondents. The learned counsel for the Bank was can did enough to concede that apparently there appears to be some interpolation in the year of date of birth (29-6-1930) of the petitioner in the records of the Bank. Though a photostat copy of the same has been filed along with the counter affidavit as Annexure CA-1, but the original was also shown in the court and on the face of it is appears that the figures 3' and 0' in "'1930" have been over written with a ball pen while all other numericals are written by ink pen. As far as numerical 3' is concerned in "1930", there is no dispute as according to the petitioner it was 32' while according to the respondents it was 30'. As far as numerical 3' is concerned in "1930", there is no dispute as according to the petitioner it was 32' while according to the respondents it was 30'. However, to the naked eye it is apparent that there is a clear interpolation on the subsequent figure after 3' and 0' has been written with a ball pen and below it there was some other numerical, may be "2". The numerical 3' is also over written. But it is also apparent that 3' has been subsequently over written by a ball pen. According to the petitioner, the figure was 32' and it has been made 30' while according to the respondents, it was 30' but that prima facie stands belied in view of the interpolation because if it was already 1930, there was no occasion to re-write it with a Ball Pen. Under the circumstances, the benefit must go to the petitioner as it is not the case of the respondents that the petitioner himself had access to the record and he himself had interpolated it More over the petitioner if, at all, interpolated he would have tried to make numerical 2' over the figure 0' if earlier the year of birth was mentioned as 1930. 3. That apart, in para 9 of the writ petition interpolation has been specifically alleged while in the counter affidavit it has been stated in paragraph no. 8 that the contents of paragraph nos. 9 to 16 of the writ petition do not call of any comments. Thus the allegations of interpolation in paragraph no. 9 of the writ petition have not been denied. Still it has been maintained that all along in the record of the Bank the date of birth of the petitioner has been shown as 29-6-1930. 4. The conclusion, therefore, is that it cannot be denied that the date of birth of the petitioner is 29-6-1932 and according to the petitioner the same was recorded, but it has been interpolated by some body. The next question is as to whether the petitioner should be permitted to raise that dispute at this stage. Before dealing with it, it may also be mentioned that in paragraph no. 8 of the counter affidavit it has been asserted that the petitioner himself had filled up his bio-data on 30-8-1986 and signed it and thereunder he has shown his date of birth as 29-6-1930. Before dealing with it, it may also be mentioned that in paragraph no. 8 of the counter affidavit it has been asserted that the petitioner himself had filled up his bio-data on 30-8-1986 and signed it and thereunder he has shown his date of birth as 29-6-1930. In his rejoinder affidavit the petitioner has specifically averred that he had mentioned his date of birth in his bio-data Form on 30-8-1986 as 29-6-1930 because he was told by the Branch Manager Sri R S. P. Srivastava that he should mention the same date of birth as was mentioned in the Bank record since his representation for change of date of birth was already pending consideration and in the event the petitioner's representation was allowed, ho would be permitted to change the date of birth accordingly. He acted bona fide on the said assurance given by the Branch Manager and mentioned his date of birth as 29-6-1930 in his bio-data Form dated 30-6-1986. On behalf of the Bank no efforts has been made to dispute this fact stated in the rejoinder affidavit. Hence, once he had already question the date of birth as contained in the Bank record in the month of April, 1983 and subsequently mentioned the same date of birth on the advice of the Branch Manager, that would not operate as estoppel against the petitioner. 5. Lastly, reliance has been placed on behalf of the respondents on the following two cases : Ananda Prasanna Mukherji v. Union of India, 1989 Lab.I.C. 700, and Union of India v. Devi Chand Sharma, 1990 Lab .I.e. 750. 6. It is a decision of the Central Administrative Tribunal Calcutta Bench, rejecting the claim of the employee for change of date of birth. A writ petition under Article 226 of the Constitution was initially filed in the Calcutta High Court on 25-4-1984 and after enforcement of the Central Administrative Tribunals Act, 1985, the matter stood transferred under section 29 of the Central Tribunals Act. In that case A. P. Mukherjee was an employee of the Calcutta Telephones. He entered in service as a daily rated Mazdoor on 9-5-1955 and in the year of appointment the date of birth was mentioned as 16-4-1926. The applicant stated that since 1955 he had been making representations regarding the correction of his date of birth. In that case A. P. Mukherjee was an employee of the Calcutta Telephones. He entered in service as a daily rated Mazdoor on 9-5-1955 and in the year of appointment the date of birth was mentioned as 16-4-1926. The applicant stated that since 1955 he had been making representations regarding the correction of his date of birth. However, on behalf of the respondent department it was said that not a single application excepting the one made in the year 1983 as enclosed with the application was made by the applicant to the General Manager. The applicant had also asserted that he had enclosed a certificate issued by the Head Master of Burdwan giving his date of birth but receipt of such certificate was also denied by the respondents. The service book of the applicant was opened on 27-6-1956 and his date of birth was recorded as 16-4-1926 and that recording was on the basis of the order dated 9-5-1955. The applicant when joined the service accepted the entry by putting his signature at the relevant column and also his left hand thumb and finger impressions on the very same day. Before the Tribunal the counsel for the Department relied upon the fact, which was found by the Tribunal, that the applicant had accepted the date of birth as recorded in the Service book by putting his thumb and finger impressions and well as signature and no protest was made till 1983. He was to retire on 30-4-1984. He had made representation only after the order dated 4-8-1982 when the notice of his date of superannuation as 16-4-1984 was served in the year 1983 to correct the date of his birth as 31-3-1932. The facts of that case were entirely different as the employee in that case sought to change his date of birth from 16-4-1926 to 31-3-1932. That is entirely a new date, month and the year of his birth and that too only a year before his retirement, while in the present case the application was moved five years before the retirement along with a High School certificate and the correction sought is of only 'year' and that too on the ground of interpolation. 7. In the other case, i.e., Union of India v. Devi Chand Sharma, 1990 Lab. 7. In the other case, i.e., Union of India v. Devi Chand Sharma, 1990 Lab. I.C. 750, which is a decision of Punjab and Haryana High Court, the petitioner Colonel Devi Chand Sharma had joined the service in Armed Force in the year 1953, on the qualification having passed Matriculation examination in the year 1952. He Joined Indian Military Academy in January, 1958, and was granted Commission on December 13, 1959. In his application dated 17-6-1957 for joining the Military Academy he gave his date of birth as recorded in the Matriculation certificate as April 1, 1933, not only in figures but in words also. On his taking the Commission he raked up the plea that his date of birth Inadvertantly had been wrongly recorded as April 1, 1933 instead of April 1937. In other words, his claim was that the Matriculation certificate reflected him exactly four years older than his actual age. Although under the departmental instruction, as age could be rectified within two years of the entry into service, yet the department considered the question since in the meantime he had got another certificate from the University correcting his age to April 1, 1937. The authorities declined to correct his age on October 17, 1968. He then remained silent till July 27, 1984 when the order retiring him from service with effect from April 1, 1985 was passed. Then he filed a suit for declaration that his date of birth was April 1, 1937 with consequential relief that he was entitled to continue in service till the age of superannuation with all benefits of service and for declaration that the order dated 27-7-1985 to retire him on April 1, 1985, was null and void. 8. The respondents contested the suit and denied the plaint allegations. The trial court decreed the suit, hence Union of India preferred an appeal. In the appeal, it was also urged that had the age of the plaintiff been April 1, 1937 as alleged in the suit, he would not have been eligible to join the service and get the Commission It was also urged that the plaintiff had himself given his age in his own hand writing coupled with the declaration that his date of birth was April 1, 1933 and having obtained advantage of that age, he was estopped from projecting the other date of birth. The courts below had found that if the date of birth of the petitioner was April 1, 137, he could not have joined the service being under age but for that the defendants were left to take appropriate action against the plaintiff for making a wrong statement and for that reliance was placed on the case of Brig. Prithvi Raj v. Union of India, 1987 Lab. I C. 6. The Honourable High Court held that in 1968 the plaintiff's application for correction was rejected vide order dated 17-10-'968- He did not thereafter file the suit and thus the suit was barred by time and he neglected the matter almost for 17 years and filed the suit when he received the order dated 27-7-1984 to retire him from service from April 1, 1985. It was further observed that the plaintiff could not play hide and seek or take advantage of his own wrong by entering into service by giving a wrong age and then seeking to correct the same. The facts of the present case are different as stated above. In the present case the petitioner could join the service even if his date of birth was 29-6-1932. He did not rake up the issue a year or so before his retirement but full five years before his retirement when he for the first time came to know about the interpolation in the records of the Bank about his date of birth which fact has not been denied and admittedly there is an interpolation. It is also not alleged that with any ulterior motive the petitioner himself had done or got done the interpolation. Moreover, the alleged alteration from 1932 to 1930 would not have helped the petitioner. Therefore, on the facts of the present case, simply because as early as in the year 1970 the Bank had issued a circular dated 2-10-1970 that the members of the staff should note that under no circumstance the application will be entertained for altering the date of births and their date of births as recorded in the service record at the time of entry in the service of the Bank will stand, the writ of mandamus sought for by the petitioner cannot be refused. The gradation list showing the seniority of the petitioner and other Officers as on 1-4-1981. The gradation list showing the seniority of the petitioner and other Officers as on 1-4-1981. which is alleged to have been circulated on 5-2- 1981 to all the Branches of the Bank would not operate as estoppel in the absence of any proof that a copy thereof was duly acknowledged by the petitioner. 9. The conclusion, therefore, is that, the case of the petitioner is bonafide and genuine. He had not played any fraud on the Bank. He had not entered into service by giving a wrong date of birth and it is a clear case of interpolation in the date of birth in the Bank records. It is, therefore, a fit case for exercise of the power under Article 226 of the Constitution. 10. Accordingly, the order dated 28-4-1990, retiring the petitioner from service with effect from 30-6-1990 is quashed and the respondents are directed to correct the date of birth of the petitioner in his service records as 30-6-1932 and treat his date of superannuation as 30-6-1990. The petitioner would be deemed to be in service and would be entitled to all service benefits admissible in law till he attains the age of superannuation, as aforesaid. Costs on parties.