JUDGMENT : Abhilasha Kumari, J. 1. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter-alia, prayed for the issuance of an appropriate writ or direction to the respondents, to make the necessary correction in the service record of the petitioner with regard to his date of birth and to enter the correct date of birth, that is, 21.09.1955 in the said record, in place of the incorrect date of birth, that is, 10.11.1952. The petitioner has further prayed for salary to be paid to him from 30.11.2010 which is the date on which he was made to retire considering the incorrect date of birth till the date of retirement as per his correct date of birth. 2. Briefly stated, the facts of the case are that the petitioner was appointed as a Civil Overseer in the Office of respondent No. 1- Director of Agriculture, by an order dated 25.03.1976. At the time of appointment, the petitioner had submitted his School Leaving Certificate, in which his date of birth was mentioned as 10.11.1952. This date was recorded in the Service-Book of the petitioner. However, later it came to the knowledge of the petitioner that the date of birth mentioned in the School Leaving Certificate is incorrect, as a Birth Certificate has been issued by the competent authority as per the Births and Deaths Register of Village Form No. 14 of Village Santrampur, District Panchmahals, wherein the date of birth of the petitioner has been recorded as 21.09.1955. The petitioner made an application for the correction of his date of birth in the service record in consonance with the Birth Certificate, on 08.07.1980. As no action was taken upon the said application by the respondents, several reminders were sent to the petitioner. Ultimately, the application of the petitioner was rejected by order dated 10.03.1981, on the ground of delay. The petitioner made another representation dated 27.07.1984 to respondent No. 1-Director of Agriculture, submitting that he is entitled to get his date of birth changed in the service record on the basis of the Birth Certificate. The petitioner was informed by a letter dated 12.10.1984 by the Project Officer of the respondent Department that he should approach the Court with all relevant documents, so that the publication regarding his correct date of birth can be made in the Official Gazette. The petitioner was informed by a letter dated 12.10.1984 by the Project Officer of the respondent Department that he should approach the Court with all relevant documents, so that the publication regarding his correct date of birth can be made in the Official Gazette. Accordingly, the petitioner approached the Court of the Chief Judicial Magistrate, Godhra. The application of the petitioner was rejected, by an order dated 31.07.1998. Aggrieved by the said order, the petitioner filed a Criminal Revision Application in the Court of the Additional Sessions Judge, Panchmahals. This application was partly-allowed, by an order dated 17.07.1999, by remanding the matter. In remand proceedings, the learned Magistrate allowed the application of the petitioner by an order dated 22.10.1999. This order has not been challenged by the respondents. Pursuant to the order of the learned Magistrate, the petitioner got the corrected date of birth published in the Gujarat Government Gazette on 20.01.2000. After doing so, the petitioner again requested respondent No. 1 by an application dated 01.02.2000 to make the necessary correction of his date of birth in the service record, as per the order of the learned Magistrate. Respondent No. 1 addressed a letter dated 04.02.2000 to the petitioner, asking him to explain why he had not made the application for correction of the date of birth after his appointment in service. The petitioner replied by a communication dated 07.03.2000, submitting that he had already filed an application for the necessary correction on 08.07.1980. The petitioner continued to request to the respondents, but to no avail. Certain documents were asked from the petitioner by the respondents, which were supplied by him. Ultimately, by an order dated 29.03.2008, the application of the petitioner was rejected by respondent No. 1 on two grounds. The first ground was that there was a delay in preferring the application. The second ground was that the application was not in consonance with the Government Resolutions dated 08.05.1978 and 27.01.1998. Aggrieved thereby, the petitioner filed a writ petition, being Special Civil Application No. 743 of 2009, challenging the order dated 28.03.2008. This Court (Coram: M.R. Shah, J.), by an order dated 17.02.2009, quashed and set aside the order dated 29.03.2008, on the ground, that there was no delay and directed the respondents to consider the application of the petitioner for the change of his date of birth in the service record, on merits. This Court (Coram: M.R. Shah, J.), by an order dated 17.02.2009, quashed and set aside the order dated 29.03.2008, on the ground, that there was no delay and directed the respondents to consider the application of the petitioner for the change of his date of birth in the service record, on merits. While passing the said order, the Court further directed the respondents to take a decision within three months from the date of the receipt of the order. The respondents preferred an appeal, being Letters Patent Appeal No. 1600 of 2009 against the said order. This appeal was dismissed by an order dated 13.11.2009 by the Division Bench. However, the direction in the order dated 17.02.2009 passed by this Court, to take a decision on the merits of the matter within the stipulated period of time was not complied with by the respondents. Instead of taking the decision within a period of three months, as directed, the respondents rejected the application of the petitioner on 29.11.2010 once again citing the ground of delay. On the very next day the respondents passed an order dated 30.11.2010, retiring the petitioner from service on the basis of the date of birth which, according to the petitioner is not correct. Aggrieved by this action, the petitioner was constrained to approach this Court by filing another writ petition being Special Civil Application No. 16442 of 2010, wherein the petitioner challenged the decision dated 29.11.2010 rejecting his application, as well as the order of retirement. When the petition was taken up for hearing, learned Assistant Government Pleader stated, upon instructions from the Officer of the Directorate of Agriculture, who was personally present in the Court on that date, that the application of the petitioner for the change of his date of birth in the Service-Book from 10.11.1952 to 21.09.1955, shall be considered afresh and in accordance with the provisions of law applicable as on 08.07.1980, which was the date on which the petitioner made the first application. On this statement, learned counsel for the petitioner withdrew the petition. The Court permitted the said withdrawal and the petition by an order dated 08.02.2011. Thereafter, the respondents passed the order dated 03.08.2011, that is impugned in the present petition. By the said order, the respondents have again rejected the application of the petitioner on the ground of delay as well as the Government Resolution dated 08.05.1978. The Court permitted the said withdrawal and the petition by an order dated 08.02.2011. Thereafter, the respondents passed the order dated 03.08.2011, that is impugned in the present petition. By the said order, the respondents have again rejected the application of the petitioner on the ground of delay as well as the Government Resolution dated 08.05.1978. Aggrieved by the said decision, the petitioner is before this Court. 3. Mr. Yatin Soni, learned advocate for the petitioner, has submitted that the correct date of birth of the petitioner as per the Birth Certificate issued by the competent authority is 21.09.1955. The Circular of the State Government dated 18.02.1974 provides that in the event of any change in the birth date recorded in the School Leaving Certificate, the birth date as recorded in the extract of the Births and Deaths Register should be accepted as the correct and final date for all purposes, including admission into Government service. The said Circular is an instruction of the State Government issued for the determination of the correct date of birth. The petitioner has produced a Birth Certificate as per the Births and Deaths Register, which has been issued by the competent authority. 3.1 As per the said Circular of the State Government, the date of birth recorded in the Birth Certificate would prevail over that in the School Leaving Certificate. It is submitted that the date of birth recorded in the Birth Certificate is to be considered as the correct date of birth and not the date of birth shown in the School Leaving Certificate. There is, therefore, no justifiable reason to reject the application of the petitioner. 3.2 Learned counsel for the petitioner has further submitted that this Court has, by an order dated 17.02.2009, passed in Special Civil Application No. 743 of 2009, quashed and set aside the order dated 29.03.2008 whereby the respondents had rejected the application of the petitioner on the ground of delay. A specific finding has been recorded in Paragraph-4 of the said order, to the effect that the application submitted by the petitioner for the correction of his date of birth cannot be said to be barred by delay and latches. A specific finding has been recorded in Paragraph-4 of the said order, to the effect that the application submitted by the petitioner for the correction of his date of birth cannot be said to be barred by delay and latches. It is forcefully contended that once this court has recorded the said finding, which has been upheld by the Division Bench, the respondents cannot reiterate the same ground of delay as they have done in the impugned order dated 03.08.2011. 3.3 Learned counsel for the petitioner further submits that the second ground for the rejection of the application is that, according to the respondents, the application of the petitioner is not in consonance with the Government Resolution dated 08.05.1978. However, the said Government Resolution has been considered by the Division Bench while passing order dated 13.11.2009, therefore, this ground is also not available to the respondents. The judgment of the Division Bench has not been carried further by the respondents and has attained finality. 3.4 It is contended by Mr. Yatin Soni, learned advocate on behalf of the petitioner that, the learned Magistrate has passed an order in favour of the petitioner, pursuant to which, the correct date of birth of the petitioner as recorded in his Birth Certificate, has been published in the Government Gazette. The respondents have themselves asked the petitioner to obtain an order from the Court and get the correct date of birth published in the Government Gazette by the communication dated 12.10.1984. Once the petitioner has complied, it is not behave the respondents to take a contrary stand. It is further submitted that an order of the learned Magistrate has not been challenged by the respondents, therefore, this order has also attained finality. 3.5 Learned counsel for the petitioner has vehemently submitted that the conduct of the respondents in passing the impugned order is required to be noticed. As per the order dated 17.02.2009 passed by this Court, the respondents were directed to decide the application of the petitioner on merits, within a period of three months from the date of the said order. Admittedly, no decision has been taken within the stipulated period of time. The respondents waited until 29.11.2010, on which date they proceeded to reject the application of the petitioner. Admittedly, no decision has been taken within the stipulated period of time. The respondents waited until 29.11.2010, on which date they proceeded to reject the application of the petitioner. This date is very revealing, as on the very next date, that is, 30.11.2010, the petitioner was made to retire from service as per the incorrect date of birth recorded in his Service-Book. 3.6 It is submitted that the petitioner has been made to run from pillar to post from 08.07.1980, till date. In spite of the order of the learned Magistrate, this Court and the Division Bench being in favour of the petitioner, the respondents have stuck to their earlier stand on delay, which was quashed by this Court by the judgment dated 17.02.2009, passed in Special Civil Application No. 743 of 2009. The ground regarding the Government Resolution dated 08.05.1978 was considered by the Division Bench while passing the order dated 13.11.2009 in Letters Patent Appeal No. 1600 of 2009. It is contended that the respondents have not only acted in contravention of the orders of this Court but have also contravened their own Circular dated 18.02.1974, wherein it is clearly stipulated that the date of birth recorded in the Birth Certificate issued as per the competent authority would prevail over the date of birth recorded in documents such as the School Leaving Certificate. 3.7 It is further submitted that the petitioner has made the application within a period of five years from the date of joining services, which is clearly recorded in the order dated 17.02.2009, passed by this Court. In support of the submission that, when there are two dates of birth, the date recorded in the Birth Certificate would prevail, learned Counsel for the petitioner has placed reliance upon a judgment of this Court in the case of S.K. Simpi v. State of Gujarat reported in 1999(3) GLR 2743 , wherein the Court had occasion to discuss the very same Circular dated 18.02.1974 and hold that if the Government Circular states that the date of birth recorded in the Births and Deaths Register is to be treated as final, then the date of birth of the petitioner therein, as recorded in the Birth Certificate, would be the correct one. 3.8 On the above grounds, it is prayed that the petition be allowed. 4. Ms. 3.8 On the above grounds, it is prayed that the petition be allowed. 4. Ms. Snusha Joshi, learned Assistant Government Pleader has appeared for the respondents and submitted that the petitioner has not made the application for change of the date of birth in the service record as per the Government Resolution dated 08.05.1978. For the first time, the application was made on 08.07.1980, which has rightly been rejected. 4.1 It is further submitted that the earlier order of rejection dated 10.03.1981, which was communicated to the petitioner, has not been challenged by him. The said order has, therefore, attained finality. The State Government has reconsidered the matter as per the statement made in Special Civil Application No. 16442 of 2010, keeping in mind the provisions of law applicable on the date on which the petitioner made the first application. In light of the said provisions, it is found that the law then prevailing did not permit the correction of the date of birth, except when there is a clerical error, as per the Bombay Civil Services Rules, 1959. The petitioner was not asking for a correction of a clerical error, therefore, the application has been rightly rejected. 4.2 Learned Assistant Government Pleader has placed reliance upon the case of Union of India v. C. Rama Swamy and others reported in 1997(4) SCC 647 , in this regard. 4.3 It is further submitted that the application of the petitioner is also not in consonance with Rule 40(2)(g) of the Gujarat Civil Services (General Condition) Rules, 2002 ('the Rules' for short). 4.4 On the above grounds, learned Assistant Government Pleader has prayed for the rejection of the petition. 5. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, contents of the impugned order and other documents on record. 6. The first noteworthy aspect of the present case is that the petitioner has been running from pillar to post and from Court to Court, ever since 08.07.1980 when he made the first application for the change of his date of birth in the service record. It is pertinent to note that by the communication dated 12.10.1984, the Project Officer has asked the petitioner to obtain an order from the Court and get the correct date of birth published in the Government Gazette. It is pertinent to note that by the communication dated 12.10.1984, the Project Officer has asked the petitioner to obtain an order from the Court and get the correct date of birth published in the Government Gazette. The application of the petitioner filed before the Court of the learned Chief Judicial Magistrate, Godhra, was allowed by the judgment and order dated 22.10.1999. This judgment has not been challenged by the respondents and has attained finality. Pursuant thereto, the correction in the date of birth of the petitioner was also published in the Gujarat Government Gazette on 20.01.2000. In spite of this fact, the respondents did not give effect to the order of the learned Magistrate and nor did they correct the date of birth of the petitioner in the service record. On the contrary, the respondents passed an order dated 29.03.2008, rejecting the application of the petitioner on the ground of delay as well as the Government Resolution dated 08.05.1978. The petitioner had to knock the doors of this Court again by filing Special Civil Application No. 743 of 2009. This Court (Coram: M.R. Shah, J.) found that the ground of delay, on which the application had been rejected, was not correct and directed the respondents to decide the application on merits. The relevant extract of the judgment dated 17.02.2009 is reproduced below: "4. It appears that application submitted by the petitioner for correction of date of birth cannot be said to be barred by delay and laches. Within a period of 5 years from the date of joining of services, more particularly, 8.7.1980, petitioner did submit the application for correction of date of birth in the service record. It is not in dispute that as per the certificate issued by the Competent Authority under the Births and Deaths Registration Act, the date of birth of the petitioner is 21.9.1955. Even, as per the order passed by the learned Magistrate the date of birth of the petitioner is 21.9.1955. Even in the subsequent application/check list submitted by the petitioner, it is specifically mentioned by the petitioner that he has earlier submitted application for correction of date of birth of 8.7.1980. It appears that the respondent authority has not properly considered the same and has not considered the fact that earlier also petitioner had submitted application for correction of date of birth in the service record in the year 1980. It appears that the respondent authority has not properly considered the same and has not considered the fact that earlier also petitioner had submitted application for correction of date of birth in the service record in the year 1980. Under the circumstances, the order passed by the respondent authority dated 29.3.2008 rejecting the application submitted by the petitioner on the ground of delay is not sustainable and same deserves to be quashed and set aside. It appears that the application submitted by the petitioner for change of date of birth in the service record has not been dealt with and considered on merits and same is rejected solely on the ground of delay. Respondent authority is to be directed to consider the case of the petitioner for change of date of birth in the service record on merits and documents which are produced by the petitioner. 5. For the reasons stated above, petition succeeds in part and communication dated 29.3.2008 rejecting the application submitted by the petitioner for change of date of birth in the service record as 21.9.1955 in place of 10.11.1952 is hereby quashed and set aside and the respondent authorities are directed to consider the application submitted by the petitioner for change of date of birth in the service record on merits considering documents which are already produced by the petitioner. Such decision shall be taken by the concerned respondent authority within a period of 3 months from the date of receipt of the present order. There is any query/objection by the concerned authority an opportunity be given to the petitioner so that such objection/query can be ensured by the petitioner. Rule is made absolute accordingly. There shall be no order as to costs. Direct service permitted." 7. The above judgment has been confirmed by the Division Bench vide the judgment dated 13.11.2009 passed in Letters Patent Appeal No. 1600 of 2009. Apart from the ground of delay, the challenge to the judgment of this Court by the State Government on the ground that the case of the petitioner was not in consonance with the Government Resolution dated 08.05.1978, also did not succeed. This ground, as well, was no longer available to the respondents. The order of the Division Bench has not been carried any further and has become final. This ground, as well, was no longer available to the respondents. The order of the Division Bench has not been carried any further and has become final. Both the grounds raised by the respondents, that of delay and the Government Resolution dated 08.05.1978, stood negatived by this Court and the Division Bench. Despite the above judgments, the respondents have persisted in reiterating the same grounds in the impugned order dated 03.08.2011. It is evident that the respondents are trying to reopen the entire matter by ignoring the judgments passed by the Division Bench and this Court, by obdurately sticking to the very same reasons that have been rejected by the said Courts. This speaks volumes regarding the conduct of the respondents. 8. As observed earlier, the issues regarding delay and the Government Resolution dated 08.05.1978 have already been finally adjudicated and put to rest by this Court and the Division Bench. It is not open to the respondents to rake up those issues again and reiterate them, as though they are doing so for the first time. In the affidavit-in-reply filed by respondent No. 3, there is not even a whisper regarding the above judgments, the contents of the judgments of the Division Bench and this Court have not been mentioned at all. It appears that the respondents are trying to ignore the said judgments. However, try as they might, the adjudication done by the Division Bench and this Court cannot be washed away by the respondents who are bound by the said orders. 9. The respondents have further attempted to take shelter under the provisions of Rule 171 of the Rules, which was applicable on 08.07.1980, when the petitioner made the first application. A perusal of the said Rule makes it clear that it pertains to cases where the Government servant is aware of his year of birth but not the date of birth. In such case, it is stated that the 1st of July of the relevant year should be treated as date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth. In such case, it is stated that the 1st of July of the relevant year should be treated as date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth. In that context, it is stated that once an entry of age or date of birth is made in the Service-Book, no alteration of the entry should be allowed thereafter, unless such entry was made due to want of care on the part of some person, or a clerical error. It is sought to be argued by the learned Assistant Government Pleader that as there is no clerical error in the case of the petitioner that requires ratification, the correction of the date of birth cannot be made. 10. In the view of this Court, the attempt on the part of the respondents appears to be to deliberately misunderstand the case of the petitioner. It has never been the case of the petitioner that there is a clerical error in recording his date of birth in the Service-Book. As the respondents are fully aware, the case of the petitioner is that the date of birth as recorded in his Service-Book on the basis of the School Leaving Certificate is incorrect and the correct date of birth is the one recorded in his Birth Register. The Circular dated 18.02.1974 of the State Government was very much in existence when the petitioner made the first application for change of date of birth on 08.07.1980. The said Circular reads as under: "In amplification of orders issued in the above mentioned Government Circulars, Government is pleased to direct that in the event of any change in birth dates recorded in the School Leaving Certificates, Matriculation Certificates, Secondary School Certificate Examinations' Certificates, or the Extracts from Birth and Death Registers of the legal bodies or Municipalities etc., the birth dates as recorded in the Extracts of Birth and Death Registers should be accepted as correct and final for all purposes including admission into Government Service. " 11. " 11. It is evident from the perusal of the above Circular that if there is a request for the change of date of birth recorded on the basis of the School Leaving Certificate, then the date of birth recorded in the Birth and Death Register would be accepted as correct and final for all purposes, including admission into Government service. 12. The petitioner is requesting for the change of date of birth that has been recorded on the basis of his School Leaving Certificate. As per the above Circular, the date of birth recorded in the Birth Certificate would prevail over the date of birth recorded on the basis of the School Leaving Certificate. 13. This Court, in S.K. Simpi v. State of Gujarat (supra), has discussed this Circular and arrived at a conclusion that the date of birth as recorded in the Births and Deaths Register would be treated as final. 14. In the above circumstances, when the petitioner has produced his Birth Certificate, got a favourable decision from the Court of the learned Magistrate and got the date of birth published in the Government Gazette as instructed by the respondents, there was no reason to deny the request of the petitioner. Further, it cannot be overlooked that this Court has quashed the earlier order rejecting the application of the petitioner on the ground of delay. The Division Bench did not find the reason regarding the Circular dated 08.07.1978 to be a convincing one and rejected the appeal of the respondents. Under the circumstances, no reason now remains for the respondents to disallow the request of the petitioner. 15. The conduct of the respondents can be gauged from the fact that the application of the petitioner was rejected just one day prior to the date on which he was made to retire on the basis of the incorrect date of birth recorded in his Service-Book. What is more surprising is that the respondents are, time and again, reiterating the same grounds that have been struck down by the Division Bench and this Court. The new ground regarding Rule 171 of the Rules which has been cited in the impugned order, is untenable, as it is not the case of the petitioner that there is a clerical error in recording his date of birth. Rule 171 is, therefore, not applicable in the case of the petitioner. 16. The new ground regarding Rule 171 of the Rules which has been cited in the impugned order, is untenable, as it is not the case of the petitioner that there is a clerical error in recording his date of birth. Rule 171 is, therefore, not applicable in the case of the petitioner. 16. Insofar as Rule 40(2)(g) of the Rules is concerned, that has been quoted in the impugned order, this Rule is regarding delay. This ground has already been struck down by this Court in the earlier round of litigation. No reason remains to the respondents to deny the just entitlement of the petitioner. 17. In view of the above discussion and for the aforestated reasons, the Court considers it just and proper to pass the following order: "The order dated 03.08.2011, passed by the State Government, is hereby quashed and set aside. The respondents are directed to correct the date of birth of the petitioner in the service record, on the basis of the date of birth recorded in his Birth Certificate. The respondents shall treat the petitioner as being on duty till 30.09.2013, which is the date on which he would have retired as per the date of birth recorded in the Birth Certificate. The respondents are further directed to pay salary and all consequential benefits to the petitioner. The needful be done within a period of three months from the date of the receipt of a copy of this order. If the said amount is not paid within the time stipulated hereinabove, the respondents shall pay interest at the rate of 9% per annum from the expiry of the period of three months till the date of actual payment." 18. The petition is allowed, in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.

Ratanbhai Kuberbhai Pagi v. Director of Agriculture Department