HANSABEHN S. ZAVERI v. STATE — 1993 DIGILAW 535 (GUJ)

K. G. SHAH, J. ( 1 ) THE petitioner, a fulltime lecturer in English working at Smt. Sadguna C. U. Arts College for Girls at Ahmedabad by filing the petition under Article 226 of the Constitution challenges the decision dated 29/09/1993, rendered by the Deputy Secretary to the Government of Gujarat, Education Department , by which that authority has rejected the request of the petitioner to order the concerned authorities to make necessary change in the service record as regards her birth date, and to change her birthdate from 4/02/199 3/09/1934. ( 2 ) UNDER the relevant rules, the superannuation age of the petitioner is 60 years. As stated in the petition, the petitioner joined the Education Department in 1957, and she has put in 36 years of service. When she entered servie, on this basis of the school leaving certificate which she produced, her date of birth as 4/02/1993, came to be recorded in her service record, and all throughout, in her service record that date has been reflected. On the basis of that as her date of birth, she was due for retirement on superannuation, on completion of the relevant academic term in June 1993. For the first time, on 21/06/1992. I. e. , only about a year prior to the actual date of her retirement on superannuation, she addressed an application to the Principal of the College where she was serving, for getting the entry about her birth date in the service record changed from 4/02/193 3/09/1934. Thereafter correspondence ensued between the petitioner on the one hand and the concerned authority on the other. The petitioner made a representation for getting the change in her birth date effected. That came to be turned down. Therefore, she filed a writ petition before this Court and in the proceedings of that writ petition, it was decided that she should make a fresh representation for the purpose which the authorities will consider. Accordingly, she made a fresh representation for the purpose, and that representation having been rejected by the order dated 29/09/1993, the petitioner has filed the present petition. ( 3 ) ACCORDING to the petitioner, as stated by her in the last few lines of paragraph 7 of the petition at page 10, she has been connected with the Education Department since 1957 and she has put in about 36 years of service. ( 3 ) ACCORDING to the petitioner, as stated by her in the last few lines of paragraph 7 of the petition at page 10, she has been connected with the Education Department since 1957 and she has put in about 36 years of service. In paragraph 4 of the petition, she has stated that in June 1992, she realised that in the school leaving certificate issued by the school last attended by her, there was an error in writing the date of her birth. Thus, on the petitioners own showing, for about 35 years that she served in various capacities in the Education Department and in the College, she all throughout believed that the date of her birth as entered in her service record, on the basis of the school leaving certificate was correct. Only about a year prior to the date of her retirement, according to her, she came to learn that in the school leaving certificate, there was an error in mentioning her date of birth, which error has come to be reflected in her service record, and hence she has now started attempts to have that entry about her birth date in the service record changed. I will presently go to the evidence upon which the petitioner relies for contending that there is an error in the entry about her birth date in the service record. But before I do so, I think, it would be worthwhile to have a glance at the relevant rules and the concerned Government Resolution as also some observations and enunciations of Their Lordships of the Supreme Court as also of this Court, which bear on the point. ( 4 ) IT appears that the Government of Gujarat has, by its Circular dated February 18, 1974, issued by General Administration Department, issued certain instructions to be followed in case where a Government Employee/ Officer applied for effecting change in the entry about his birth date in the service record. Thereafter followed the Government of Gujarat, G. A. D. Resolution No. RTR: 1173/uo/1215, of 1978 (Annexure H to the petition) [page 55]. Thereafter followed the Government of Gujarat, G. A. D. Resolution No. RTR: 1173/uo/1215, of 1978 (Annexure H to the petition) [page 55]. That Government Resolution at Annexure H to the petition [page 5] takes note of the fact that some Government Employees/ Officers, with a view to continuing in service for some time more, tended to make application only some time prior to their date of superannuation , for getting the entry about their birth date recorded in the service record changed, and for that purpose, they attempted to rely upon the entry in the Births and Deaths Register. Considering that position, the Government resolved that the requests made for alteration of date of birth should not be entertained after the preparation of the service book of the government servant concerned, and in any event, not after the completion of the probation period, or 5 years continuous service, whichever is earlier. The date of birth may, however be permitted to be altered at a later stage, if the government is satisfied that a bona fide clerical mistake has been committed, and that it should be rectified. However, such matter should be attempted to be finalised within the time limit as aforesaid. ( 5 ) IN Rule 171 of the Bombay Civil Services Rules, with effect from 8/06/1982, an amendment came to be made. The relevant part of the amendment reads as follows :requests made for alteration of date of birth should not be entertained after the preparation of the Service Books of the Government servants concerned and in any event not after the completion of the probation period or five years continuous service, whichever is earlier. In the case where there is no probation period, such request, should not be entertained after the completion of five years continuous services. The date of birth may, however be permitted to be altered at a later stage if the Government is satisfied that a bona fide clercial mistake has been committed and that it should be rectified. In the case where there is no probation period, such request, should not be entertained after the completion of five years continuous services. The date of birth may, however be permitted to be altered at a later stage if the Government is satisfied that a bona fide clercial mistake has been committed and that it should be rectified. Thus, from the above G. R. and the provision of Rule 171 of the BCSR s inserted therein with effect from 8/06/1992, it is clear that the normal period during which the request for change in the entry about birth date should be entertained is the lesser out of the two periods: (1) five years continuous service, and (2) the period of probation if it is for less than five years. The petitioner joined service way back in the year 1957. The period of 5 years expired in 1962, and for 30 years thereafter, till June 1992, she made no grievance of the fact that there is any error in the entry about her birth date recorded in the service record. For the period of about 35 years since she joined service, she made no application for getting in the service record rectified. For the first time in June 1992, she made an application for getting the entry about her birth date rectified. Such a request, in the ordinary circumstances, going by the Government Resolution referred to above, and the position as it emerges from Rule 171 BCSR. s, has got to be turned down. Of course, the Government has got the power to rectify the entry about the birth date even after the expiry of five years provided the Government is satisfied that there is a bona fide clercial mistake that has been committed in effecting the entry about birth date of the employee in the service record. When the provision inserted in Rule 171 BCSR. s with effect from 8/06/1992, speaks about bona fide clerical mistake that has been committed by somebody, who made entries as regards the birth date of the employee concerned, in the service record. If the clerk concerned or the officer concerned, who made the entry when the employee joined service, committed a bona fide mistake, obviously, the concerned employee should not suffer on that account. If the clerk concerned or the officer concerned, who made the entry when the employee joined service, committed a bona fide mistake, obviously, the concerned employee should not suffer on that account. But, if on the basis of the evidence produced by the employee concerned, when he or she joined service, entry about his or her birth date in the service record is correctly made, it would be difficult to say that there is a bonafied clercial mistake which should be rectified. The entry as made in the service record of the petitioner was correctly made, on the basis of the school leaving certificate which she tendered when she joined service in 1957. There is no mistake committed by anybody in the Department, while she joined service, in making the entry about her birth date in the service record. This is one aspect of the matter. ( 6 ) NOW coming to the judicial pronouncements, reference may be made to the decision in the case of Rasul Adam Votra v. Oil and Natural Gas Commission, Dehradun and Anr. 1987 (1) G. L. R. , p. 493. In that judgment, the Division Bench of this Court was inter alia concerned with the interpretation of the expression, bona fide clercial mistake appearing in the Note to Regulation 8 of the Oil and Natural Gas Commission (Terms and Conditions of Appointment and Service) Regulations, 1975. On behalf of the petitioner before the Division Bench, in the aforesaid case, it was sought to be canvassed that the expression bona fide clerical mistake should be given a wider meaning which would include the clerical mistake committed at the employers end as also the one committed by the school authority in giving a wrong certificate to the petitioner. In sub regulation 2 of Regulation 8 of ONGC, the provision is that the actual date of birth or the assumed date once recorded cannot be altered except in case of a clerical error without the previous orders of the appointing authority. The note appended to sub regulation (2) of Regulation 8 of ONGC is almost identical in terms with what is provided in Rule 171 of BCSR. s by amendment in 1982, which I have excerpted hereinabove. In that note, the expression is a bona fide clerical mistake. That expression is identical with the expression used in the amended provision of Rule 171 BCSR. s by amendment in 1982, which I have excerpted hereinabove. In that note, the expression is a bona fide clerical mistake. That expression is identical with the expression used in the amended provision of Rule 171 BCSR. s. The Division Bench of this Court, while harmonising the expressions (1) clerical error and (2) bona fide clerical mistake, said that both those expressions cannot only those mistakes which have crept in bona fide which can be rectified without any further investigation. I think while interpreting the provision contained in Rule 171 BCSR. s, the same interpretation as given to the expression bona fide clerical mistake in the note to sub regulation (2) of Regulation 8 of ONGC, by the Division Bench of this Court should be applied. In the case before me, as I will presently point out, the mistake which the petitioner wants to canvass is not such a mistake which can be rectified without any further investigation of facts. So far as the admitted facts are concerned, admittedly when the petitioner entered the service, she produced the school leaving certificate, which mentioned 4/02/1933 as her date of birth, and accordingly, entry in her service record has been made. Now, on the basis of a long long wound up reasoning, the petitioner wants to contend that her correct birth date is 2/09/1934, and not 4/02/1933. Before her contention could be accepted, quite a large number of facts shall have to be investigated, and that, in view of the interpretaion put up on the expression bona fide clerical mistake by the Division Bench of this Court in the judgement referred to hereinabove, would simply be impermissible. ( 7 ) IN paragraph 22 of the judgment in Rasul Adams case (supra), this is what the Division Bench ofthis Court has said : thus, from the foregoing discussion it is clear that if a period of limitation has been put in by a validly enacted law, the same cannot be construed as without authority. From the foregoing discussion it is also further clear that if the employee eoncerned, on his own volition, gives the date of birth and fails to correct the same within the period mentioned in Regulation 8 (2) and the Note thereon, he cannot have unlimited period to correct the age already given. From the foregoing discussion it is also further clear that if the employee eoncerned, on his own volition, gives the date of birth and fails to correct the same within the period mentioned in Regulation 8 (2) and the Note thereon, he cannot have unlimited period to correct the age already given. The expression clerical error denotes such error which does not require any investigation as such and the mistake has occurred in copying the date already gien by the concerned employee. The argument of Mr. Tanna that the clerical error committed by the school authorities or that of Mr. Mehta that the error committed by the relation of the party concerned should also come under clerical error and as such can be corrected, cannot be accepted since such errors alleged depend upon investigation as to the genuineness of the same. The argument of the learned Counsel appearing for the petitioners to the effect that the party should be allowed to correct the mistake and such correction can be made by the parties concerned only from the date on which they come to know of the same and that as such, the period of limitation must run from the date of knowledge cannot be appreciated. There must be finality with regard to the date of birth given by an employee concerned and a reasonable opportunity must be given to the employee to have the date of birth given by an employee concerned and a reasonable opportunity must be given to the employee to have the date of birth corrected. In order to give such a reasonable opportunity, the employee is permitted to give his date of birth supported by valid documents and that if he is able to find any mistakes, the employee is also given time up till his probation period is completed or the service record is prepared for the purpose of correcting any mistake. (Emphasis supplied.)THE aforesaid observations of the Division Bench of this Court in paragraph 22 of the judgment in Rasul Adams case (supra), amply make it clear that clerical error or bona fide clerical mistake which is contemplated by the Rules and Regulations is the one such as a mistake committed in copying the date already given by the concerned employee. (Emphasis supplied.)THE aforesaid observations of the Division Bench of this Court in paragraph 22 of the judgment in Rasul Adams case (supra), amply make it clear that clerical error or bona fide clerical mistake which is contemplated by the Rules and Regulations is the one such as a mistake committed in copying the date already given by the concerned employee. If, for example, the employee, while entering the service gave the school leaving certificate which mentioned the date of birth as 1-1- 1935, but the clerk or the person who prepared the service record, while copying that date of birth, committed an error and entered in the service record. , the date of birth of the concerned employee as 1-3-1934, that would certainly be a bona fide clerical mistake or a clerical error, which could be easily corrected for, the correction thereof, will not require any investigation of facts. The school leaving certificate tendered by the employee at the time he entered service would be on the record. The entry erroneously made by the clerk concerned in the service record would be there, and by a mere comparison, one can say that the clerk concerned has committed a bona fide mistake in copying the date of birth of the employee concerned from the copy of the school leaving certificate into the service record. Such a mistake obviously can be corrected and is required to be corrected. However, if the employee, while entering the service, on his own volition gives the date of birth from any document to which he, at that time, takes no exception, and on the basis of that document, entry about the date of birth of the employee is made in the service record,then certainly, it cannot be said that it is a bona fide clerical mistake committed by the person concerned while constituting the service record of the employee, and such an entry would not be within the sweep of correctional process contemplated by the relevant provision; in the present case, the provision of Rule 171 of the BCSR. s. The Division Bench of this Court in Rasul Adams (supra) clearly negatived the contention to the contrary by saying :the argument of Mr. Tanna that the clerical error committed by the school authorities or that of Mr. s. The Division Bench of this Court in Rasul Adams (supra) clearly negatived the contention to the contrary by saying :the argument of Mr. Tanna that the clerical error committed by the school authorities or that of Mr. Mehta that the error committed by the relation of the party concerned should also come under clerical error and as such can be corrected, cannot be accepted since such errors alleged depend upon investigation as to the genuineness of the same. In the present case, it is not the contention of the petitioner that there was some error committed by the departmental clerk in copying her birth date from the school leaving certificate to the service record. Therefore, her case is not covered by the correctional process envisaged by Rule 171 BCSR. s. ( 8 ) THE argument of Mr. Tanna , L. A. for the petitioner that it was for the first time in the year 1992 that the petitioner came to know about the mistake having been committed as regards her birth date in her school leaving certificate and therefore, the period of limitation for the petitioner to get corrected the entry about her birth date in the service record should commence from 1992 also cannot be accepted in view of the holding of the Division Bench in the case of Rasul Adam (supra ). ( 9 ) MR. Tanna, L. A. submitted that the amended Rule 171 BCSR. s, and the Government Resolution of the year 1978, cannot apply to the petitioner, for she joined the service way back in 1957. This argument also cannot be accepted. I will presently point out that a similar point has been dealt with by Their Lordships of the Supreme Court in the decision in the decision in the case of Union of India v. Harnam Singh, AIR 1993 S. C. p. 1367. In that case, the respondent joined government service in February 1956. At the time of his entry in government service, his service book was prepared and the date of birth was entered as 20/05/1934. At that time, the respondent had not passed his matriculation examination, but later on he passed that examination. He therefore, for the purpose of getting an entry about he having passed the matriculation examination made in the service record, produced the matriculation certificate wherein his date of birth was shown as 7/04/1938. At that time, the respondent had not passed his matriculation examination, but later on he passed that examination. He therefore, for the purpose of getting an entry about he having passed the matriculation examination made in the service record, produced the matriculation certificate wherein his date of birth was shown as 7/04/1938. He however, at that time did not mke a request for getting his date of birth in the service record changed from May 20, 193 4/04/1938. Therefore, the only change that was made in the service record was that, whereas earlier he was shown as Matric fail, by making a subsequent entry, he was shown to have passed the matriculation examination. However, till about 1992, all throughout, in the service record, his date of birth came to be shown as 20/05/1934. In about 1992, when he was notified that he would retire on supperannuation, he made various representations to the authorities for getting the entry about his date of birth changed. Those represnentations having failed, he approached the Central Administrative Tribunal (CAT) which ultimately granted his request. The Union of India, approached the Honble Supreme Court against the decision of the Cat. Their Lordships of the Supreme Court, allowed the appeal of the Union of India. One of the points canvassed before the CAT and accepted by it, in that case, was that the time limit of five years for making the request for rectification in the entry about date of birth in the service record came to be inserted by substitution of Notes 5 to F. R. 56, in 1979. Therefore, that provision would not apply to the respondent of that case, who had entered service in 1956. This argument is similar to the one advanced before me by Mr. Tanna, that the amended provision contained in Rule 171 BCSR. s, which was inserted in that Rule in 1982 would not apply to the petitioner for, she joined service in 1957. While negativing this contention, which found favor with the CAT, Their Lordships of the Supreme Court, said as follows in paragraph 11 of the report :the approach of the Tribunal does not commend to us as it tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government Servants between those who joined service before and after 1979. It is a too simplistic way of looking at the issue, by ignoring the ground realities and the intention of the rule making authority to discourage state claims and non suit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. Their Lordships, in that paragraph further observed :of course, Note 5 to FR 56 (m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into service but what is necessary to be examined is the intention of the rule making authority in providing the period of limitation for seeking the correction of the date of birth of the Government Servant, viz. , to discourage stale claims and belated applications for alteration of date of birth recorded in the service book at the time of initial entry. It is the duty of the Courts and tribunals to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule making authority to give unlimited time to seek correction of date of birth, after 1979, to those government servants who had joined the service prior to 1979 but restrict it to the five years period for those who enter service after 1979, it would not be permissible to non suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of government servant who applied for correction of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979. This view would be in consonance with the intention of the rule making authority. This view would be in consonance with the intention of the rule making authority. ( 10 ) ON the basis of the aforesaid pronouncement of the Supreme Court, on the facts of the case before me, it has got to be said that as the petitioner has not approached the concerned authority, latest within five years from 1982 when the provision came to be inserted in Rule 171 BCSR. s fixing the period of five years her claim could not have been entertained and has rightly been rejected. The contention that as she had joined service prior to 1982, the amended provision in Rule 171 BCSR. s would not apply to her is required to be stated, in view of the aforeside pronouncement of the Supreme Court, merely for being rejected. On the same line of reasoning, the reliance placed by Mr. Tanna, L. A. for the petitioner, on the decision in the case of B. K. Suthar v. State and Anr. 1983 (2) G. L. R. p. 932, in my opinion, has nothing to help the petitioner in this case. It may be noticed that even on facts that case is quite distinguishable for firstly in that case, the application for correction of the entry about birth date was made in 1977, i. e. , before 1978 resolution was passed and before 1982 when Rule 171 BCSR. s. was amended, under both of which came to be prescribed a period of limitation of 5 years and secondly the concerned Secretary and the concerned Minister had recommended to accept that application. ( 11 ) IN the case of Union of India v. Harnam Singh (supra), in para 6 of the report, Their Lordships have observed as follows :a Government servant, after entry into service, acquires the right to continue in service till the date of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless, the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded, and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or state claims, is generally applied to by the Courts and tribunals. It is none the less competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a government servant can be entertained. A government servant who makes an application for correction of date of birth beynd the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. (Emphasis supplied) ( 12 ) THUS, the aforesaid observations of Their Lordships of the Supreme Court, make it clear that even if there is no period of limitation prescribed for making a request for getting the entry about the date of birth rectified, the employee concerned should make such a request without any unreasonable delay. (Emphasis supplied) ( 12 ) THUS, the aforesaid observations of Their Lordships of the Supreme Court, make it clear that even if there is no period of limitation prescribed for making a request for getting the entry about the date of birth rectified, the employee concerned should make such a request without any unreasonable delay. I have pointed out hereinabove, with reference to paragraph 11 of the judgment in the aforesaid case that Their Lordship have pointed out that even if the rule or provision has been changed and a period of limitation has been changed and a period of limitation has been priscribed, then the person who was already in service at the time the change was effected, should apply for getting the mistake rectified, within a reasonable time after the change is effected, and in no case, beyond the prescribed period of limitation, computed from the date of coming into force of the relevant provision. Here in the case before me, the provision in Rule 171 BCSR. s has been altered in 1982, and the period of five years has been prescribed. The petitioner, for the first time approached the authorities for the rectification in the entry about her birth date in 1992. Therefore, she has not approached the authorities within a reasonable time. She has definitely not approached the authorities within five years from the date when the rule was amended. THE second position which is made clear by the judgment in the aforesaid case is that the person who approaches the authorities for the purpose of getting the entry about his/her date of birth changed must be in possession of irrefutable proof relating to his/her birth date as different from the one earlier recorded in the service record. Merely because the concerned person is in possession of some good evidence to establish that the recorded dte of birth is clearly erroneous, would not be sufficient. The evidence relied upon by the petitioner in support of her request should be irrefutable proof. As I will presently point out, the petitioner is not in possession of any such irrefutable proof. ( 13 ) I may now refer to the latest judgment of the Supreme Court in the case of The Secretary and Commissioner, Home Department and Ors. V. K. Kirubakaran, JT 1993 (5) S. C. 404. ( AIR 1993 SC 2647 ). As I will presently point out, the petitioner is not in possession of any such irrefutable proof. ( 13 ) I may now refer to the latest judgment of the Supreme Court in the case of The Secretary and Commissioner, Home Department and Ors. V. K. Kirubakaran, JT 1993 (5) S. C. 404. ( AIR 1993 SC 2647 ). In that case, the respondent entered the service in 1958. According to the date of birth recorded in his service record, he was to superannuate on 8/08/1992. On Aug 6/08/1991 (i. e. about one year prior to his date of superannuation), he made an application before the Tribunal for an order to alter his date of birth recorded as 9/08/1934, to Aug 9/08/1936. His application before the Tribunal for an order to alter his date of birth recorded as 9/08/1934, to Aug 9/08/1936. His application before the Tribunal was rejected, giving him an option to approach the Government under the appropriate service rules. He made a representation was rejected by the concerned authority. He therefore, filed an application before the Tribunal for getting the entry about his date of birth recitified or altered. The Tribunal having accepted his plea, the authorities approaches the Supreme Court. In that case. Their Lordships of the Supreme Court have taken note of the fact that of late a trend is being noticed that many public servants, on the event of their retirement raise a dispute about their dtes of birth recorded in the service records, by either invoking the jurisdiction of the High Courts under Article 226 of the Constitution or by filing application before the concerned Administrative Tribunals. Their Lordships have also taken note of the fact that 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. Their Lordships have said that the sole object of such rules is 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. Their Lordships have also referred to the judgment in the case of Union of India v. Harnam Singh (supra ). Their Lordships have also referred to the judgment in the case of Union of India v. Harnam Singh (supra ). Their Lordships have said that an application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. 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 others who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to Their Lordships, 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, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. THEIR Lordships have also said that before any such direction is issued, the Court or Tribunal 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 prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court of the Tribunal on the eve of their retirement, questioning the correctness of the entreis in respect of their date of birth in the service books. By this process it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Trubunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior. ( 14 ) THUS, from this judgment, it becomes clear that the evidence in support of the applicants claim for getting the entry about her date of birth rectified should be of irrefutable type, and of unimpeachable character. Merely because she has in her possession, evidence which would make her claim plausible, would not be sufficient. In the case of Union of India v. Harnam Singh (supra) also, it has been posited that the evidence in support of the claim of the petitioner must be of irrefutable proof and not merely good evidence. ( 15 ) NOW coming to the facts of the case, admittedly, the petitioner, when she entered service, produced school leaving certificate which showed her date of birth to be 4/02/1933. The school leaving certificate, in absence of any other better evidence would be quite an acceptable evidence. The respondents have accepted that evidence and have acted upon it for about 35 years. The only better conceivable evidence would be the entry from the Births and Deaths Register. The petitioner has not produced any such entry. According to her, she made inquiries with the Municipal Corporation, and she has been told that the Births and Deaths Registers of 1934 are not traceable/have been destroyed. The only better conceivable evidence would be the entry from the Births and Deaths Register. The petitioner has not produced any such entry. According to her, she made inquiries with the Municipal Corporation, and she has been told that the Births and Deaths Registers of 1934 are not traceable/have been destroyed. Therefore, she could not be given a copy of the entry of her date of birth, which according to her, is 2/09/1934. In this connection, she has produced a letter from the Record Keeper of the Ahmedabad Municipal Corporation at page 50 of the compilation, which says that it is not possible to supply to the petitioner certified copy of the birth register since the records of the year 1934 are not traceable/ have been destroyed. She has not produced any evidence to show that she ever made any attempts to find out an entry from the Births and Deaths Register for the year 1933, and to be more specific, for the month of Februrary 1933. She has not made any attempt with the Ahmedabad Municipal Corporation to find out that there is no entry in the Birth and Deaths Register under the date 4/02/1933, showing her birth. Therefore, firstly on facts, her attempt to produce irrefutable proof is only half hearted, and if I may say so, an attempt conveniently made by her to ignore the possibility about there being an entry about her birth in the Births and Deaths Register under the date 4/02/1933. SECONDLY, the petitioner heavily relies upon the vaccination certificate. Of course, in the vaccination certificate produced by the petitioner, her date of birth is shown to be 2/09/1934. But that vaccination certificate, as I see it, cannot be preferred to the school leaving certificate, which the petitioner had produced while she entered service for the simple reason that the vaccinator has nowhere pointed out in the certificate the source of his knowledge about the date of birth of the petitioner being 2/09/1934. The petitioner nextly relies upon the entry from the register of Shree Rajnagar Balmandir, Ahmedabad. Of course, in that entry, the name of the petitioner is shown, and under the column of date of birth, the date is shown to be 9-9-34. The petitioner nextly relies upon the entry from the register of Shree Rajnagar Balmandir, Ahmedabad. Of course, in that entry, the name of the petitioner is shown, and under the column of date of birth, the date is shown to be 9-9-34. However, the figure 9 indicating the date, and the figure 4 in the figure 34 indicating the year, are both over written and erased, and for this over writing and erasure, the petitioner has no explanation. ( 16 ) THE petitioner has then relied upon the Gazette declaration made by her, which has been published in the Government Gazette in the year 1992. That declaration says that the petitioner has changed her date of birth from 4/02/193 3/09/1934. Such a declaration published by the petitioner, cannot be said to be irrefutable proof or unimpeachable proof or clinching evidence as envisaged by the judgments referred to by me hereinabove. The vaccination certificates of other siblings of the petitioner relied upon by the petitioner also, in my opinion, have on probative value. ( 17 ) HAVING considered the matter from all the relevant angles, I think, the petitioner has no case to succeed in this petition firstly for the reason that she has for about 35 years of her service, accepted the entry in her service record about her date of birth, as correct, and it was only a year prior to the date of her retirement that she made an application for correction of that entry. Not only that her attempt in that direction is beyond the prescribed period of 5 years under the rules, but it is not made within the period which could be said to be reasonable, even from the date when Rule 171 BCSR. s came to be amended in the year 1982. The judgment of the Supreme Court referred to by me hereinabove clearly frown at such belated claims, interalia on the ground that if such claims are accepted, that would adversely affect others, as pointed out by Their Lordships of the Supreme Court in paragraph 5 of the judgment in the case of The Secretary and Commissioner, Home Department and Others v. R. Kirubakaram (supra ). Secondly, on facts also, the petitioner has not produced evidence of irrefutable character or unimpeachable character or of conclusive type in support of her case that the entry about her date of birth made in the service record is erroneous and that her correct birth date is 2/09/1934. For all these reasons, the petition has no merit. The same is rejected. (NSS) Application dismissed. .