JUDGMENT : 1. Heard learned advocate Mr.Amar D.Mithani for the petitioner, learned AGP Ms.Amita Shah for respondent Nos.1, 2, 5 and 6 and learned advocate Mr.Mehul S.Shah for the respondents No.3 and 4. Perused the record. 2. It is undisputed that petitioner herein has served in Class-IV post in various Courts in Junagadh District right from 22.2.1968 till 30.11.2004. It is also undisputed fact that brother of the petitioner Ghanshyambhai Babulal Jani was also serving in the same Court. It is also undisputed fact that during the tenure of their service, the office has noticed that there is some mistake or error or ambiguity so far as date of birth of present petitioner is concerned, inasmuch as the date of birth of the petitioner as per the Court’s record was 11.11.1942, whereas date of birth of his brother is 23.3.1942. Thereby, there was difference of only seven months in the date of birth of two real brothers, which is almost not possible. In view of such fact, in the year 1995, the respondent No.3 has inquired the fact by calling the present petitioner and his brother to disclose the correct date of their birth. For the purpose, they have called for the school leaving certificate and other evidence. Pursuant to such communication dated 27.6.1995, the petitioner and his brother had provided the certified copy of their birth certificates as per the record of death and birth maintained by the Government. According to such entry in the birth and death register, copies of which are produced at Annexure-B, now, it becomes clear that the date of birth of the brother of the petitioner is 22.4.1942, whereas date of birth of the present petitioner is 29.11.1944 and not 11.11.1942 as recorded with the department being respondents No.3 and 4. According to such entry in the birth and death register, copies of which are produced at Annexure-B, now, it becomes clear that the date of birth of the brother of the petitioner is 22.4.1942, whereas date of birth of the present petitioner is 29.11.1944 and not 11.11.1942 as recorded with the department being respondents No.3 and 4. For such discrepancy, it has been submitted by the petitioner that practically, petitioner was adopted by his uncle and when he was admitted in the school in the year 1999, his uncle has disclosed the date of birth as 11.11.1942, which is recorded in the school register and based upon which he has disclosed the same to the department at the time of joining the service and therefore, the department has considered that considering the difference in age of two real brothers, date of the birth as per the entry in the death and birth register is to be considered as the correct date of birth of the petitioner instead of considering the school leaving certificate as correct date of birth, and service record of the petitioner with the department. Pursuant to such exercise, ultimately, respondents No.2 and 3 have issued a letter dated 4.9.1995, copy of which is at Annexure-D, confirming that the date of birth of the petitioner is to be corrected in his service book from 11.11.1942 to 29.11.1944 and accordingly, necessary corrections were carried out in the service record. Pursuant to such change in service record, now, the date of superannuation of the petitioner is fixed as 30.11.2004 by office order dated 31.1.2000, copy of which is produced at Annexure-E. Pursuant to such office order, therefore, petitioner has to retire only on 30.11.2004, as his date of birth is 29.11.1944. Accordingly, petitioner was allowed to serve till 30.11.2004 and he retired only from 30.11.2004 and thereby, he received all service benefits till 30.11.2004. 3. However, while preparing his pension papers, in Pension Case No.193, the respondent No.2 has by his order dated 16.10.2004, copy of which is produced at Annexure-G, conveyed the District Judge, Junagadh that correction of date of birth in service record is not in accordance with modified Rule 171 of the Gujarat Civil Services Rules. 3. However, while preparing his pension papers, in Pension Case No.193, the respondent No.2 has by his order dated 16.10.2004, copy of which is produced at Annexure-G, conveyed the District Judge, Junagadh that correction of date of birth in service record is not in accordance with modified Rule 171 of the Gujarat Civil Services Rules. As per such Rules, once date of birth is endorsed in the service book of any employee, it can be corrected only within a span of five years or till the petitioner has been made permanent, whichever is earlier and not thereafter. But the same paragraph also confirms that such correction is permissible, if there is any mistake in the record. For the purpose, they are relying upon the resolution dated 8.6.1988. The petitioner has therefore, filed an affidavit, disclosing the fact that it was because of some improper recording of date of birth of two brothers and therefore, there is no fault on his part and hence, requested to consider his date of retirement as 30.11.2004 and thereby, requested to fix the temporary pension considering his date of birth as 29.11.1944. 4. However, respondents have refused to do so by their letter dated 11.1.2005. There was some correspondence between the District Court and the Government office on the subject. However, ultimately, respondents have come forward with orders dated 13.3.2007 and 29.3.2007, disclosing that the date of retirement of the petitioner is to be considered as 30.11.2002 since his date of birth is wrongly corrected and therefore, his services from 1.5.2002 to 30.4.2004 is to be considered as unauthorised and thereby, by their order dated 2.4.2007 decided to recover an amount of Rs.1,48,719/- from the petitioner and directed him to deposit such amount within 15 days with the office of the Principal Civil Judge, Una from where the petitioner had retired, so as to enable them to prepare the pension papers of the petitioner. Thereafter, the representations by the petitioner could not solve the problem. Some of such representations were filed before the District Court, without proper exercise and consideration of the issue in accordance with law. 5. Ultimately, by order dated 12.7.2007, petitioner was again reminded to deposit the amount of Rs.1,48,719/- within 15 days with modified pension papers and again representations thereafter have gone in vain. 6. Some of such representations were filed before the District Court, without proper exercise and consideration of the issue in accordance with law. 5. Ultimately, by order dated 12.7.2007, petitioner was again reminded to deposit the amount of Rs.1,48,719/- within 15 days with modified pension papers and again representations thereafter have gone in vain. 6. When petitioner could not deposit the amount as per the above details, by order dated 24.7.2007, now, the Principal District Judge has decided to recover the amount, which was considered as the salary during the period which was treated as unauthorised service, to be recovered from the gratuity and pension that may be payable to the petitioner. The representation by the petitioner against such order also did not give any fruitful outcome and hence, petitioner has no option, but to prefer this petition under Articles 226 and 14 of the Constitution of India, seeking directions and appropriate orders to release the amount of about Rs.1,48,719/- with 18% interest, which was recovered from the monetary benefits on his superannuation, from the date of its actual recovery till the date of such payment. Petitioner has also prayed for a direction to the respondents to calculate and refix the pay and pension amount on the basis of actual date of retirement of the petitioner i.e. 30.11.2004 and to pay all consequential benefits including arrears of pension with 18% interest from the due date for all such amount. Thereby, petitioner has prayed for a direction to the respondents to uphold and obey the order dated 4.9.1995 or atleast to decide the representation dated 25.3.2009 after giving proper opportunity of hearing and in accordance with law. The sum and substance of all the prayers would be to the effect that, practically, the orders and communications dated 16.10.2004 (Annexure-G), 7.2.2007 (Annexure-J), 13.3.2007 (Annexure-K), 29.3.2007, 2.4.2007 (Annexure-L) and 24.7.2007 (Annexure-P) needs to be quashed and set-aside. 7. The sum and substance of all the prayers would be to the effect that, practically, the orders and communications dated 16.10.2004 (Annexure-G), 7.2.2007 (Annexure-J), 13.3.2007 (Annexure-K), 29.3.2007, 2.4.2007 (Annexure-L) and 24.7.2007 (Annexure-P) needs to be quashed and set-aside. 7. As against above factual details, the sum and substance of the respondent’s case as submitted before him and as pleaded in affidavit-in-reply filed by one Paritosh A.Antani, Incharge District Assistant Examiner, Junagadh is to the effect that pursuant to the Rules of Gujarat Civil Services (General Condition of Service) Rules, 2002, more particularly Rule 40, when once an entry of age or date of birth has been made in service book, no alternation of the entry is to be allowed afterwards and therefore, the order dated 4.9.1995 allowing the modification in date of birth by the respondents No.2 and 3 is improper and therefore, the petitioner is not entitled to receive the salary for two years as discussed with reference to above communication. Therefore, respondents have taken decision that the salary paid to the petitioner for the period of his service, which is unauthorised, needs to be recovered, and his pension is to be calculated as if he was in services from 22.2.1968 till 30.11.2002. Therefore, respondents have taken decision that the salary paid to the petitioner for the period of his service, which is unauthorised, needs to be recovered, and his pension is to be calculated as if he was in services from 22.2.1968 till 30.11.2002. However, if we peruse the averments in affidavit, which reproduces relevant Sub-Rule of Rule 40, it becomes clear that in Sub-Rule (2) (f) to (h) of Rule 40 of Gujarat Services (General Condition of Service) Rules, 2002, in fact, there are several exceptions and otherwise also, the language of the Rules is quite clear and obvious that though it does not allow an employee to get his date of birth changed or altered or modified once it is entered into service-book after such Rules of 2002, and as per the previous Rules, though such amendment was prohibited only after the period of five years from joining the service or the date when the petitioner has become permanent, whichever is earlier, the fact remains that all above Sub- Rules categorically confirms some exceptions when it is stated in Sub-Rule (f) that unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error; and as per Sub-Rule (h), the date of birth may, however, be permitted to be altered at a later stage if the Government is satisfied that a bonafide clerical mistake has been committed and that it should be rectified. 8. Therefore, though the Rules make a provision, restricting the change or modification in the date of birth after some stipulated point i.e. after preparation of the service book or after the completion of probation period or five years continuous service, whichever is earlier, as per the new Rules of 2002, the fact remains that in case of clerical error, and in case of mistake noticed by the department, department can certainly make correction in the date of birth. Thereby, restrictions by Rules is practically upon the employee and not upon the employer in rectifying the mistake or error, if any found on record and more particularly, when it is supported by documentary evidence and otherwise it is a genuine error, which does not confirm the factual details made available to the department. 9. Thereby, restrictions by Rules is practically upon the employee and not upon the employer in rectifying the mistake or error, if any found on record and more particularly, when it is supported by documentary evidence and otherwise it is a genuine error, which does not confirm the factual details made available to the department. 9. In the present case, it is undisputed fact that though it is not absolutely impossible, it is almost impossible to have two real brothers born within a span of seven months. It is also undisputed fact that it was noticed by the department in the year 1995. It is also undisputed fact that there was no request or prayer to change or alter the date of birth of the petitioner so as to take any undue advantage of services by remaining in service for some more period to get salary and other benefits, but it was only because of the query by the department that both the brothers have inquired about their real date of birth and they were able to get the documents regarding their date of birth from the Register of Birth and Death, maintained by the competent authority maintaining public record. Therefore, when the entry from the Register of Birth and Death is produced before the employer that too in the year 1995 and thereby, when the department has decided to modify its record in the year 1995, only because department might have failed to convey such correction to the concerned Government department i.e. Legal Department or the General Administration Department, as the case may be, so far as the services of the petitioner is concerned, it cannot be said that the petitioner is at fault or he has committed any wrong or that he has taken undue advantage in any manner whatsoever by correcting the date of birth from 11.11.1942 to 29.11.1944. 10. 10. In other words, considering the provisions of Rules, which are discussed herein above, when such bonafide clerical mistake in recording the date of birth was found by the department and thereby, when department has made corrections, it becomes clear that none of the Rule restricts the department to make such corrections and therefore, impugned orders against the petitioner, which are referred herein above, are certainly not in accordance with law or even Rules and it certainly results into gross injustice to the petitioner being arbitrary in nature, more particularly when while passing any such orders, which are under reference herein, petitioner has never been called upon to explain, so also the department was never asked that why such change was not conveyed to the State Government at the relevant if at all it was mandatory. However, on such issue, I am of the opinion that Judiciary being independent institution, there is no need for any further inquiry by the Legal Department or any other department of the State when competent authority has corrected its record based upon the public document. Even for modifying the date of birth of any of its employee and that too by correcting the clerical error, language of the G.R. is quite clear that the clerical error can be corrected or altered or modified by the employer. 11. Learned advocate Mr.Mithani is relying upon the decision in the case of S.K. Simpi Vs. State of Gujarat reported in 1999(3) GLR 2743 , which supports above view, when this Court has as long as in the year 1999, decided a similar issue wherein the elder brother of the petitioner in such reported case was also serving in the Law Department of the State of Gujarat and has retired on superannuation on 28.2.1994, whereas it was brought on record of the employer that the elder brother of the petitioner, namely, Mr.B.K. Simpi is born on 18.2.1936 and as per the certificate issued by the Chief Registrar of Births and Deaths, Government of Karnataka, the date of birth of the petitioner was shown as 4.3.1936. Therefore, Court has observed that if the date of birth as per the record of the department is accepted, then, it would be practically impossible for the petitioner to be born within 14 days immediately after the birth his elder brother. Therefore, Court has observed that if the date of birth as per the record of the department is accepted, then, it would be practically impossible for the petitioner to be born within 14 days immediately after the birth his elder brother. Though the duration is quite more in our case, which is almost seven months, the same principle would apply that it would be practically impossible for the person petitioner to be born within seven months immediately after the birth of his elder brother, who is also in Government service in the same department and more particularly, when date of his birth is now being disclosed as per the public record i.e. Register of Birth and Death and not as per record of the department irrespective of some circular of G.A.D. on the subject. The other issue covered by such judgment is regarding delay in changing or modifying the date of birth inasmuch as in the reported case, such difference was noticed and thereafter, it was corrected almost after 31 years. Whereas, in our case, it is corrected at the earliest point of time when employer has noticed the improper date of births of two brothers. Thereby, in the reported case, the High Court has directed the respondents to consider the service of the petitioner before it for the period which was treated as unauthorised service as continued service on the same post, which was held by the petitioner and to pay all monetary benefits for the said period as if petitioner has been in service and to calculate the monetary benefits available to the petitioner within two months. Thereby, practically, the Court has held that the action of the respondents in retiring the petitioner on 31.3.1994 is illegal and bad in law and the petitioner was considered to be in service till 31.5.1996 as per the corrected date of birth. 12. In view of above facts and circumstances, I have no hesitation to allow this petition by holding that the date of birth of the petitioner as per his birth certificate is to be treated as his correct date of birth for his services i.e. 29.11.1944 and thereby, petitioner is entitled to serve the department till 30.11.2004. Thereby, all orders and communications dated 16.10.2004 (Annexure-G), 7.2.2007 (Annexure-J), 13.3.2007 (Annexure-K), 29.3.2007, 2.4.2007 (Annexure-L) and 24.7.2007 (Annexure-P), are required to be quashed and set-aside. 13. Thereby, all orders and communications dated 16.10.2004 (Annexure-G), 7.2.2007 (Annexure-J), 13.3.2007 (Annexure-K), 29.3.2007, 2.4.2007 (Annexure-L) and 24.7.2007 (Annexure-P), are required to be quashed and set-aside. 13. Therefore, the petition needs to be allowed as prayed for. Thereby, respondents are directed to uphold the order till 4.9.1995 and to release all the payments due to the petitioner as if he was in continuous service upto 30.11.2004 and to re-calculate all his retiral benefits including gratuity, pension etc. considering his length of service from 22.2.1968 till 30.11.2004. Respondents are further directed to release all monetary benefits as if petitioner is in service for above period within four months without fail. If any amount is paid by the respondents and received by the petitioner, then, that amount is to be adjusted. However, undertaking, if any filed by the petitioner to refund such amount, then such undertaking shall now stand cancelled. The respondents shall pay 6% simple interest on such difference of arrears. However, interest is not to be paid on amount, if any paid to the petitioner pending this litigation. 14. Rule is made absolute. Direct service is permitted.