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2019 DIGILAW 484 (GAU)

Lutovi Sema v. State of Nagaland

2019-04-12

MANISH CHOUDHURY

body2019
JUDGMENT : MANISH CHOUDHURY, J. 1. In this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the decision of the State respondents releasing him from service with effect from 31.3.2013 on attaining the age of superannuation, which is alleged to be premature. 2. The facts leading to the filing of the present writ petition may briefly be stated. The petitioner came to be appointed as a work-charged labour on a fixed pay of Rs. 210/- per month in the establishment of the Executive Engineer, Public Health Engineering Department (PHED), Tuensang Division by an Office Order dated 28.09.1984. By a subsequent Office Order dated 08.05.1992, the petitioner was provided scale of pay of Rs. 375 - 590/- per month plus all other allowances and he was posted in the office of the Sub-Divisional Officer No. II, Kiphire under the PHED, Tuensang Division, as Fitter Helper. On being granted scale pay, it is contended by the petitioner that the service book of the petitioner was opened. At the time of opening the service book, the details of the petitioner were collected and the petitioner being an illiterate person, informed his date of birth as 23.03.1961. However, when his Identity Card bearing Code No. KIP 0521 was issued by the Department, his date of birth was shown as 23.03.1971 instead of 23.03.1961 and his date of joining service was shown as 01.05.1985 instead of 28.09.1984. It is contended that when upon inquiry, it was found that, in his service book, his date of birth was wrongly entered as 23.03.1971 instead of 23.03.1961, the same was corrected by the State respondents. 3. In the year 2008, all the work-charged employees of the PHED, Kiphire District were asked to appear in person before a Departmental Screening Committee and they were asked to bring their original Identity Cards issued to them at the time of their appointments. Accordingly, all the work-charged employees appeared before the said Departmental Screening Committee and they were asked to submit their Identity Cards. Thereafter, photographs of the work-charged employees who appeared before the Departmental Screening Committee were taken with respective placards prepared by the said Departmental Screening Committee. By pasting the photographs so taken, new Identity Cards "W/C Identity Card 2008" were issued to all those work-charged employees including one to the petitioner. Thereafter, photographs of the work-charged employees who appeared before the Departmental Screening Committee were taken with respective placards prepared by the said Departmental Screening Committee. By pasting the photographs so taken, new Identity Cards "W/C Identity Card 2008" were issued to all those work-charged employees including one to the petitioner. In the Identity Card so issued to the petitioner, his date of birth was reflected as 23.03.1953 instead of 23.03.1961, as shown in his service book and similarly, his date of joining service was changed to 29.9.1985 instead of 28.9.1984. 4. Thereafter on 28.09.2012, an Office Order was issued under the hand of the Sub-Divisional Officer, PHED, Kiphire Sub-Division, Kiphire whereby it was informed to the petitioner that consequent upon his attaining the age of superannuation on 31.03.2013, the petitioner would not be attending duty after 31.03.2013. It was mentioned that the notice had been served to the petitioner 6 (six) months ahead of his retirement for his prior information. On receipt of the said Office Order dated 28.09.2012, a representation was submitted by the petitioner on 8.10.2012 to the Chief Engineer, PHED, Nagaland through proper channel of the Executive Engineer, PHED, Kiphire Division praying for regularization of his service for the purpose of pensionary benefit as he had put in 28 years of service and would be retiring with effect from 30.03.2013. The said representation of the petitioner was duly forwarded by the Executive Engineer, PHED, Kiphire Division to the Chief Engineer, PHED, Nagaland on 10.10.2012. It was mentioned therein that the petitioner was due to retire with effect from 31.03.2013 and he was praying for regularization for the purpose of pensionary benefit and accordingly, the representation was forwarded for further necessary action. Thereafter, by an Office Order dated 31.03.2013 passed by the Sub-Divisional Officer, PHED, Kiphire Sub-Division, the petitioner was released from service with effect from 31.3.2013 on superannuation retirement. 5. After his release on 31.03.2013, the petitioner submitted a representation dated Nil to the Chief Engineer, PHED, Nagaland contending that his actual date of birth was 23.03.1961. When he got back his service book, he had found that his date of birth was altered by the respondent authorities to 23.3.1953 by striking off his original date of birth i.e. 23.3.1961 by overwriting and it was on the basis on the tampered date of 23.3.1953, the petitioner was released from service with effect from 31.3.2013. When he got back his service book, he had found that his date of birth was altered by the respondent authorities to 23.3.1953 by striking off his original date of birth i.e. 23.3.1961 by overwriting and it was on the basis on the tampered date of 23.3.1953, the petitioner was released from service with effect from 31.3.2013. He mentioned that having put in about 28 years of service, he had applied for regularization for the purpose of pensionary benefit but the same was turned down despite the fact that several of his colleagues had been regularized even though they had put in lesser years of service than the petitioner. The petitioner also alleges that same alteration was also done in the work-charged employees registration list. In support of his such claim, the petitioner forwarded a birth certificate issued by the Department of Economics and Statistics, Government of Nagaland which was purportedly issued on 31.3.2003 showing his date of birth as 23.3.1961. By so contending, the petitioner requested for rectification of his date of birth. 6. In pursuance of the said representation as regards rectification of age, the Executive Engineer, PHED, Kiphire was requested by the Additional Chief Engineer, PHED, Nagaland on 09.05.2013 to furnish the relevant documents in connection with the service of the petitioner. By communication dated 21.06.2013 of the Additional Chief Engineer, PHED, Nagaland, the Executive Engineer, PHED, Kiphire Division was informed that on verification of the official records, it was found that date of birth of the petitioner should be 23.3.1953 and the same had been changed and corrected in his Identity Card as well as in the service book by the Superintending Engineer, Kohima Circle, Work-Charged Employees Committee, PHED on 22.10.2008. It was thereby informed that the date of birth of the petitioner shall be 25.3.1953 for all official purposes and records. 7. On 14.3.2013, the petitioner through his lawyer served a legal notice dated 14.11.2013 on the respondent authorities demanding restoration of his date of birth as 23.03.1961 in his service book as well as to restore the petitioner back into service along with reimbursement of the arrear salary and other service benefits with effect from 31.03.2013. Pursuant to the said legal notice dated 14.11.2013, the Chief Engineer, PHED, Nagaland communicated its reply on 05.02.2014. Pursuant to the said legal notice dated 14.11.2013, the Chief Engineer, PHED, Nagaland communicated its reply on 05.02.2014. In the reply, it was mentioned that on appointment, all work-charged employees were issued Identity Cards containing personal details along with photographs. It was found that originally, the date of birth of the petitioner was shown as 27.03.1971 and the date of joining as 01.05.1985, meaning thereby, the petitioner purportedly was a minor when he joined the office. Thereafter, the petitioner submitted a birth certificate which was registered on 31.03.2013 and wherein his date of birth was entered as 23.03.1963. Seeing the anomaly with regard to the date of birth of the petitioner, the department was in a process of rectifying the same and at that time, the State Government directed all the State Departments to constitute a Screening Committee to streamline and verify all work-charged employees as work-charged employees were found to be appointed randomly without any proper verification, thereby, leading to many ghost employees which had caused heavy loss to the State exchequer. As per the directive of the State Government, a Screening Committee was constituted in the Public Health Engineering Department (PHED) during the year 2008 and the said Departmental Committee directed all work-charged employees to be present in person before the Committee. During the said exercise of verification by the Committee, photographs of each employee holding a placard containing his/her details were taken for proper identification. It was mentioned that the petitioner after verification of his particulars, was also photographed holding the placard with his personal details and as per the photograph his date of birth was clearly entered as 23.03.1953 which was ascertained and authenticated in a careful manner as per the credentials of the petitioner. It is further stated that the service records of all work-charged employees are maintained as per the report of the Screening Committee and as per their report, the petitioner's date of birth was entered as 23.03.1953 and accordingly, the petitioner was released from service on attaining the age of 60 years. With the above statements, the claim made by the petitioner as regards his date of birth was rejected on 5.2.2014. 8. After receipt of the said reply dated 05.02.2014, the petitioner once again submitted a representation before the Chief Engineer, PHED, Nagaland on 08.05.2015 praying for his reinstatement of service by correcting his date of birth as 23.03.1961. With the above statements, the claim made by the petitioner as regards his date of birth was rejected on 5.2.2014. 8. After receipt of the said reply dated 05.02.2014, the petitioner once again submitted a representation before the Chief Engineer, PHED, Nagaland on 08.05.2015 praying for his reinstatement of service by correcting his date of birth as 23.03.1961. Thereafter it was on 10.04.2018, the instant writ petition has been filed assailing the Office Order dated 28.09.2012 (wrongly mentioned as 10.10.2012); the Office Order dated 31.03.2013 (wrongly mentioned as 31.03./09.2012); and the communication dated 21.06.2013. 9. The respondents have filed their affidavit opposing the contentions made by the petitioner. It is stated therein that the State Government directed all the Departments including the Public Health Engineering Department, to constitute a Screening Committee to streamline and verify all work charged employees as work-charged employees were found to be randomly appointed without proper verification. In this connection, the respondent PHE Department during 2008 constituted a Screening Committee. During the verification carried out by the Screening Committee, all work-charged employees were directed to be present in person and after proper verification of documents submitted by the employees, each employee holding a placard containing his/her details was photographed which included his/her date of birth, date of joining, etc. Due to anomaly with regard to the date of birth of the petitioner, the Screening Committee verified from the petitioner in person and it was thereafter, the photograph of the petitioner was taken with the placard containing his details wherein the date of birth was entered as 23.03.1953. It is stated that as per the official records, the petitioner was appointed on 29.09.1995. It was, thereafter, the Identity Card was issued. It is stated that the date of birth and date of joining of the petitioner were entered only after proper verification with the petitioner. Had the petitioner been aggrieved about his date of birth as entered in his Identity Card, it was open for the petitioner to bring the issue to the notice of the Screening Committee and/or the concerned authority immediately on receipt of the Identity Card but the said issue was never raised by the petitioner. Had the petitioner been aggrieved about his date of birth as entered in his Identity Card, it was open for the petitioner to bring the issue to the notice of the Screening Committee and/or the concerned authority immediately on receipt of the Identity Card but the said issue was never raised by the petitioner. The State respondents had mentioned that the only representation received by the respondent Department was on 08.10.2012 wherein the petitioner prayed for regularization of his service only as he had put in 28 years of service and was to retire with effect from 30.3.2013. It was only after his retirement, the respondents received a legal notice dated 14.11.2013 from the petitioner's counsel demanding restoration of the petitioner's date of birth as 23.3.1961 and the said Legal Notice was duly responded to by the respondents on 5.2.2014. The contention of the petitioner that he had no knowledge about the alteration has been denied as false and misleading stating that after he was photographed with all his details, the Identity Card was issued to him immediately. The petitioner was well aware of the Office Order dated 28.09.2012 giving him 6 (six) months' advance notice before retirement. As such, the plea of the petitioner that he had no knowledge of the entry made in the photograph as well as in the Identity Card is specious as the petitioner had many opportunities to seek rectification of his date of birth, etc. It is not permissible for the petitioner to take the excuse of being illiterate. The State respondents has stated that rectification of the petitioner's service book with regard to his date of birth from 23.03.1971 to 23.03.1961 was done before the constitution of the Screening Committee. In the year 2008, the Screening Committee was constituted with the specific task and duty to verify each and every work-charged employee thoroughly and accordingly, the details of the petitioner was rectified for all purposes after verification. A specific plea was taken by the State respondents that there was delay of more than four years and there was no explanation for the delay for which the instant writ petition is liable to be dismissed on the ground of delay and laches also. 10. The petitioner did not file any affidavit-in-reply to the said affidavit-in-opposition filed by the State respondents. 10. The petitioner did not file any affidavit-in-reply to the said affidavit-in-opposition filed by the State respondents. The petitioner, however, filed an additional affidavit on 5.7.2018 bringing in a seniority list of work-charged employees before 2008. Thereafter on 6.4.2019, the petitioner filed another additional affidavit bringing on record some office orders of regularization of similarly situated work-charged employees who were junior to the petitioner as well as a seniority list. Basing reliance of the birth certificate issued by the Economics and Statistics Department, the petitioner submitted that he was made to retire prematurely six years before than his actual date of retirement. 11. I have heard Ms. Z. Zhimomi, learned counsel for the petitioner and Ms. S. Mere, learned Government Advocate representing all the State respondents. 12. Ms. Zhimomi, learned counsel for the petitioner reiterating the facts stated in the writ petition, has submitted that the respondents had unilaterally changed the date of birth of the petitioner from 23.03.1961 to 23.03.1953 behind the back of the petitioner. She has further submitted that there was no authority of the part of the State respondents to alter the date of birth of the petitioner in a manner as had been done in the instant case. It is further submitted that the petitioner being illiterate, had no knowledge of the alteration of his date of birth. It is submitted that the Screening Committee was constituted only for the purpose of verification of the work-charged employees and it was not authorised to alter the service details of the employees who appeared before it. As such, the action of the State respondents making the petitioner to be released prematurely on 31.03.2013 is arbitrary and illegal and the impugned orders are liable to be set aside with a direction to the State respondents to restore the petitioner back in service. Ms. Zhimomi has submitted that the present writ petition is limited only to the issue of date of birth of the petitioner and the same shall not be treated as a cause to defeat the claim of the petitioner as regards regularization of his service retrospectively on the basis of the criteria laid down by the State respondents through various Office Memoranda issued from time to time. The learned counsel for the petitioner, in support of her submissions, has placed reliance on the decisions, (i) Smti. Sudama Devi Vs. The learned counsel for the petitioner, in support of her submissions, has placed reliance on the decisions, (i) Smti. Sudama Devi Vs. Commissioner & Ors., (1983) 2 SCC 1 ; (ii) Shiv Dass Vs. Union of India & Ors., 2007) 9 SCC 274; (iii) Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & Ors., (2011) 5 SCC 607 ; (iv) Pepsu Road Transport Corporation, Patiala & Anr. Vs. S.K. Sharma & Ors., (2016) 9 SCC 206 ; (v) Been Dayal Ojha Vs. U.P. Public Service Tribunal No. V, Lucknow & Ors., AIR 1993 SC 2475 ; (vi) Sarjoo Prasad Vs. General Manager & Anr., (1981) 3 SCC 544 ; (vii) Hari Singh Vs. Stale of Bihar & Ors., (2000) 10 SCC 284 ; and (viii) Madhya Pradesh State Cooperative Dairy Federation Limited & Anr. Vs. Rajnesh Kumar Jamindar & Ors., (2009) 15 SCC 221 . 13. Ms. Mere, learned State counsel has submitted, placing reliance on the affidavit filed by the State respondents, that initially the date of birth of the petitioner was shown as 23.3.1971 which was later on altered as 23.3.1961 purportedly at the instance of the petitioner. When such anomaly as regard the date of birth was detected, the same was corrected to 23.3.1953 by the Screening Committee on due verification with the petitioner. The said change of date of birth was carried out far back as in 2008 and the petitioner was well aware of the same since 2008. The Screening Committee was constituted as per the direction of the State Government to streamline and verify records of all work-charged employees and as such, it was duly empowered to change the date of birth. It is further submitted by her that there was inordinate and inexplicable delay on the part of the petitioner in every stage and therefore, the writ petition shall not be entertained on the principles of delay and laches. In support of her submission, the learned counsel for the State respondents placed reliance in the decision in M. Kuber Singh Vs. State of Manipur & Anr. reported in 2014 (1) GLT (MN) 497. 14. I have duly considered the submissions advanced by the learned counsels for the parties and the materials placed on record. In support of her submission, the learned counsel for the State respondents placed reliance in the decision in M. Kuber Singh Vs. State of Manipur & Anr. reported in 2014 (1) GLT (MN) 497. 14. I have duly considered the submissions advanced by the learned counsels for the parties and the materials placed on record. There is no dispute to the fact that the petitioner came to be appointed as a work-charged labour on fixed pay by an Office Order dated 28.9.1984 and that he was provided scale of pay by another Office Order dated 8.5.1992. There was some dispute as regards the date of joining service by the petitioner. In the 1st Identity Card stated to have been issued, the date of joining was shown as 1.5.1985. The petitioner stated that his date of joining should have been 28.9.1984. A perusal of the Office Order dated 28.9.1984 makes it clear that his date of joining could not have been 28.9.1984 because office order itself stated that he was appointed as a work-charged labour with effect from 21.10.1984 only. As such, his date of joining must have to be only after 21.10.1984. Later on, the date of joining was changed from 1.5.1985 to 29.9.1985 after the verification carried out by the Departmental Screening Committee constituted as per the direction of the State Government. In support of his contention as regards his date of birth as 23.3.1961, the petitioner placed reliance on a birth certificate purportedly issued on 31.3.2003 by the Department of Economics and Statistics, Government of Nagaland. It is reflected therein that the said birth certificate in Form No. 5 (See Rule 8) was "issued under Section 12/17", without making any mention of the statute, wherein his date of birth was shown as 23.3.1961. The said certificate issued purportedly on 31.3.2003 appears to have been issued under the provisions of Registration of Births and Deaths Act, 1969 which is an Act to provide for the regulation of registration of births and deaths and for matter connected therewith. As per Section 8, it is the duty of all person to furnish information to the Registrar about births and deaths in the family. Section 13 thereof has provided for delayed registration of births and deaths. As per Section 8, it is the duty of all person to furnish information to the Registrar about births and deaths in the family. Section 13 thereof has provided for delayed registration of births and deaths. As per Section 13(3), no births or deaths which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the 1st Class or a Presidency Magistrate after verifying correctness of the birth or death and on payment of the prescribed fee. Section 12 has provided that Registrar shall, as soon as the registration of a birth or death has been completed, give, free of charge, to the person who gives information under Section 8 or Section 9 and extract of the prescribed particulars under his hand, relating to such birth or death. Section 17 of the Act mentions, inter-alia, about obtaining an extract from such Registrar relating to any birth or death. Such extract, subject to fulfillment of the condition precedent therein, shall be permissible in evidence for the purpose of providing the births or deaths to which the entry relates. Rule 9 of the Nagaland Registration of Births and Deaths Rules, 1999, as amended, has also prescribed that a birth or death which has not been registered within one year of its occurrence, shall be registered only of an order of a Magistrate of 1st Class or a Presidency Magistrate and on payment of late fee of Rs. 10/-. In the instant case, the registration of date of birth of the petitioner, be it 23.3.1953 or 23.3.1961 or 27.3.1971, was shown to be registered after a period of more than 30 years i.e. 31.03.2003. As has been prescribed by the concerned Act and Rules, the condition precedent for such kind of issuance of registration of birth is an order of the Magistrate of 1st Class who has to pass such an order after verifying the correctness of the birth. Even when the date of birth is entered as per the direction of the Magistrate, the entry may not be accepted as a conclusive evidence of disputed date of birth. There is no materials on record showing that the said birth certificate was issued after passing of any specific order by a Magistrate of 1st Class after verification about the correctness of the date of birth of the petitioner. There is no materials on record showing that the said birth certificate was issued after passing of any specific order by a Magistrate of 1st Class after verification about the correctness of the date of birth of the petitioner. The petitioner has not explained as to why the birth certificate was obtained on 31.03.2013. In the absence of any acceptable corroborative evidence, the said birth certificate, relied on by the petitioner, cannot be accepted for consideration. Rather, it appears to be a case of putting the cart before the horse. The petitioner has alluded that when his Identity Card bearing Code No. KIB 0521 was originally issued, his date of birth was shown as 23.3.1971. He has further stated that when upon enquiry, it was found that his date of birth was wrongly entered as 23.3.1971 in the service book, the same was corrected by the respondents. But it is not disclosed by the petitioner by which authority and under what authority the date of birth originally entered into service book as 23.3.1971 was change to 23.3.1961. The State respondents in its reply dated 5.2.2014 to the legal notice stated that as per the Identity Card, the date of joining of the petitioner was entered as 1.5.1985 and his date of birth as 27.3.1971 which showed that the petitioner was a minor when he joined the office. Neither the petitioner nor the State respondents has thrown any light as to how, why and when the purported act of alteration of date of birth of the petitioner from 23.3.1971 to 23.3.1961 was done, not to speak of the authority by which it was done. As a result, the very incorporation of the date, 23.3.1961 remained in the realm of doubt. Save and except what have been mentioned above, there appears to be no other materials by which the petitioner has claimed his date of birth as 23.3.1961. 15. It is not disputed by the petitioner that in the year 2008, he and all other work-charged employees in Kiphire District were asked to appear in person before the Departmental Screening Committee with their original Identity Cards issued at the time of their appointments. It is not disputed by the petitioner that he along with other work-charged employees appeared before the Screening Committee, which was admittedly constituted as per the directive of the State Government. It is not disputed by the petitioner that he along with other work-charged employees appeared before the Screening Committee, which was admittedly constituted as per the directive of the State Government. The directive of the State Government to all the State Departments was to constitute a Screening Committee to streamline and verify all work-charged employees as it was found that there was engagement of work-charged employees in a random manner without any proper verification which led to unknown ghost employees causing heavy loss to the State exchequer. Like all other work-charged employees, the petitioner also submitted his Identity Card. To the specific statement made by the State respondents in its affidavit that due to anomaly with regard to the date of birth of the petitioner, the Screening Committee verified from the petitioner in person and accordingly, the photograph was taken with all his details. There is no denial to the statement from the petitioner in any manner whatsoever including by way of an affidavit-in-reply. The statements of the State respondents to the effect that the date of birth and date of joining of the petitioner were entered into a placard as well as in the Identity Card as 23.03.1953 and 29.09.1985 respectively is also not controverted by the petitioner in any manner whatsoever which leads to the presumption that the same was done with the knowledge and consent of the petitioner. As the petitioner has not denied the receipt of the Identity Card issued to him immediately after the process of verification made by the Screening Committee incorporating 23.3.1953 and 29.9.1985 as his date of birth and his date of joining respectively, it is not believable that he had no knowledge of the changes so made on the ground of his illiteracy. Even if the plea of his illiteracy would have been taken for his inaction due to his lack of knowledge as regards the change of birth as a legitimate basis for a period of over four years from 2008 to 28.9.2012, the same got lost in view of his reaction to the Office Order dated 28.9.2012 whereby, he was put to notice before 6 (six) months ahead that he would be attaining the age of superannuation on 31.03.2013 on which date, he would be released from duty. In response to the said Office Order dated 28.09.2012, the petitioner submitted representation before the Chief Engineer, PHED, Nagaland on 08.10.2012, the contents of which are reproduced herein below:- "To, The Chief Engineer (PHED), Nagaland, Kohima (Through Proper Channel) Sub:-Prayer For Regularization of W/c Service age of Superannuation Retirement on 31.03.2013 for Service Pension benefit. Sir, With veneration, I would like to state that, I have been serving as W/c labour initially and to the present post a Fitter Helper with the pay scale at Phisami Village under SDO (PHED), Kiphire. I have put to 28 years of service whereby attaining the age of superannuation retirement w.e.f. 30.3.2012 very shortly notified. Therefore, I request you to kindly extend the sympathetic action so as my service shall be regularized for the pension benefit for which I shall ever remain grateful to you sir. Enclosed Xerox Copy:- 1. ID Card. 2. First appointment order (W/c Labour) 3. Restoration order Fitter Helper 4. Six Months Notice" 16. It is apposite at this stage to examine the case laws relied upon by the learned counsel for the petitioner. In the case of Deen Dayal Ojha Vs. U.P. Public Service Tribunal No. V, Lucknow (supra), the appellant was enrolled in military service on 06.07.1942 and he was discharged in 1946. Thereafter on 01.01.1947, he joined as a constable in the Police Department. The Department initially entered the appellant's date of birth in the service record as 01.11.1925 on the basis on a vernacular examination certificate. When the appellant by producing the discharge certificate dated 26.09.1947 issued by the Military Authority, claimed to add the duration of his earlier military service, the Department finding indication of his age in the discharge certificate as about 22 years on the date of discharge fixed his date of birth as 06.07.1924 by some ratiocination of their own. It was in such situation, the Apex Court had opined that the whole process by which the entry as to the appellant's date of birth was altered, was impermissible as it was based on conjecture. This case does not help the case of the petitioner. 17. The case of Sarjoo Prasad vs. General Manager (supra) on which the learned counsel for the petitioner placed reliance, does not also help the case of the petitioner in any manner. Rather, it helps the case of the respondents. This case does not help the case of the petitioner. 17. The case of Sarjoo Prasad vs. General Manager (supra) on which the learned counsel for the petitioner placed reliance, does not also help the case of the petitioner in any manner. Rather, it helps the case of the respondents. The short point therein was whether it was open to the respondents to change or alter the birth date of the appellant therein being 25.07.1927, once accepted by the respondents in 1951 without giving any opportunity to him to sustain the same. It was admitted therein that alteration in the accepted birth date of the appellant was made without giving an opportunity of hearing the appellant. A reference was made to the decision in the State of Orissa Vs. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 , wherein, the Apex Court held that the date of birth without notice and without giving opportunity to the appellant cannot be altered to the disadvantage and prejudice of an employee against an administrative order which involves civil consequence meaning thereby the same must have to be made in conformity with the rules of natural justice which at its lowest minimum requires notice and opportunity to the persons likely to be affected. As the appellant therein was not put the notice, the Apex Court allowed the appeal on that short ground only. But in the instant case, the petitioner was very much put to notice and the change was made by the Screening Committee only after the verification with the petitioner which fact was not at all denied by the petitioner. His silence for a period of more than four years and his representation seeking regularization of his service by stating that he was going to retire on 31.03.2013 has made it clear that he was well aware right from the date of such change in the year 2008. He at that point of time had only sought for his regularization for service and did not make any grievance in respect of his date of birth as 23.03.1953. 18. The case of Hari Singh Vs. State of Bihar (supra), does not help the case of the petitioner. He at that point of time had only sought for his regularization for service and did not make any grievance in respect of his date of birth as 23.03.1953. 18. The case of Hari Singh Vs. State of Bihar (supra), does not help the case of the petitioner. The change made in the date of birth in the service book of the appellant therein was interfered as concededly the Government never put the employee on notice to indicate that the date of birth as entered in the service book was not correct. Though it could have done so, since no notice was given to the employee concerned for accepting the date of birth other than the one entered in the service book, the impugned order of retirement was found to be not sustainable. From the said decision, it can be noticed that if an employee is put to notice that the date of birth as entered in the service book is incorrect then after granting of due opportunity the date of birth entered in the service book of an employee can be corrected. As has been discussed in the preceding paragraphs and as can be seen from the representation dated 8.10.2012, the petitioner having accepted his date of superannuation on retirement as 31.3.2013, had only prayed for regularization of his service. As can be noticed from the representation dated 08.10.2012, the petitioner had enclosed both his Identity Card as well as the 6 (six) months advance notice containing the Office Order dated 28.9.2012. 19. The another case in which the learned counsel for the petitioner has placed reliance is Madhya Pradesh State Cooperative Diary Federation Limited and Another vs. Rajnesh Kumar Jamindar and others (supra), the subject matter therein was compulsory retirement, wherein, the Apex Court had examined about the grounds on which an order of compulsory retirement being not penal in nature, can be subjected to judicial review. As such, the said case does not bear any similarity to the case in hand. 20. The other decisions on which the learned counsel for the petitioner has placed reliance are on the subject of delay and laches. In Smti Sudana Devi Vs. As such, the said case does not bear any similarity to the case in hand. 20. The other decisions on which the learned counsel for the petitioner has placed reliance are on the subject of delay and laches. In Smti Sudana Devi Vs. Commissioner and Another (Supra), the Apex Court has observed that in respect of a writ petition under Article 226 of the Constitution, there can be no hard and fast rule of 90 days by way of period of limitation and the general rule of laches is applicable and the same is dependent on the facts and circumstances of each case. There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution. In each case, it would have to be decided on the facts and circumstances involved therein as to whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation 21. In Shiv Dass Vs. Union of India and others (supra), the subject matter was denial of disability pension to the appellant therein suffering from 80% disability. It is observed therein that delay and laches is one of the factor to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution of India. The discretion has to be exercised judicially and reasonably. Even in a case of pension, it is observed that the ground of delay cannot be overlooked but the same would also be dependent upon the facts of each case. It was in the peculiar circumstance of the said case, the Apex Court remanded the matter to the High Court to hear the writ petition on merits. 22. In Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & Ors. (supra), it has been observed that delay and laches is one of the factors that requires to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution of India In an appropriate case, the High Court may refuse to invoke its extraordinary power if there is such negligence on the part of the applicant to assert his right taken in conjunction with the lapse of time in this circumstances. In the said decision, the decision, of Shiv Dass vs. Union of India and Others (supra) was referred to. In respect of delay or laches, the Supreme Court in Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & Ors., (2011) 5 SCC 607 , has summed by the position as under: "54. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts. (2) The principle on which the court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay." 23. The decision in Pepsu Road Transport Corporation, Patiala and another vs. S.K. Sharma and others (supra), is also in respect of entitlement of pension unlike the subject matter involved in the instant petition. Therein also, it is observed that it cannot be held as a general rule in all cases of claim for pension also, plea of delay or limitation cannot be considered by the writ court. Therein also, it is observed that it cannot be held as a general rule in all cases of claim for pension also, plea of delay or limitation cannot be considered by the writ court. Whether the retrial benefit are wrongly withheld and not paid despite numerous representations and delay is not of a decade or so, Court may not accept the plea of limitation raised by the Government. 24. In the context of the principles laid down in the cases relied on by the petitioner, it is found that the date of birth of an employee as entered in the service book can be changed and corrected if such an employee is put on notice to indicate that the date of birth as entered in the service book is not correct. It is permissible when such an employee is given due notice and is granted opportunity in conformity with the principles of natural justice. This is not the case of disadvantage and prejudice to the said employee. As has been indicated above, the petitioner, in the instant case, had due notice and the change in the date of birth was made only after verification of the same by the Screening Committee with the petitioner. Conspicuously, the petitioner did not controvert the statement made by the State respondents in their affidavit and in their reply to the legal notice, as have been indicated above, which need not be dilated further. At the first stage, after the verification exercise made by the Departmental Screening Committee in the year 2008 and issuance of the Identity Card immediately thereafter wherein the date of birth of the petitioner was recorded as 23.3.1953, the petitioner remained silent and did not raise any grievance even after his release on 31.3.2013. Even it is accepted that the petitioner was an illiterate person, the fact of his submitting representation to the order of release seeking his regularization without making any grievances as regard his impending release makes it clear that the petitioner had at that stage had accepted the decision. It was only after his release from service on superannuation on 31.3.2013, the petitioner decided to submit his representation making grievances as regards his date of birth. When the petitioner served the legal notice dated 14.11.2013, the same was responded to by the respondents on 05.02.2014 giving a detail reply to his said grievance. It was only after his release from service on superannuation on 31.3.2013, the petitioner decided to submit his representation making grievances as regards his date of birth. When the petitioner served the legal notice dated 14.11.2013, the same was responded to by the respondents on 05.02.2014 giving a detail reply to his said grievance. Having received the same, the petitioner had remained silent for over a period of time of more than four years. Though the petitioner stated to have submitted a representation on 08.05.2015, the present writ petition was filed only on 10.04.2018. As has been laid down in the judgment cited above, it is settled principle that representation would not be an adequate explanation to take care of the delay. In view of the consideration indicated in the case of Shankara Cooperative Housing Society Limited Vs. M. Prabhakar & Ors. (supra), it is seen that the petitioner has not made any whisper about the delay that had occurred at different stages and about the reasons why the petitioner remained silent in any of his pleadings. Considering the same, I am of the considered opinion that this writ petition suffers also from delay and laches. 25. As regards the plea of illiteracy which the petitioner has taken for his lack of knowledge about the change in the date of birth, the decision in Vishakhapatnam Dock Labour Board Vs. E. Atchanna & Ors., (1996) 2 SCC 484 , may be referred to wherein, in a similar situation, it was observed to the affect: "that may be so; but it was not their case that they were not recorded in their presence. Merely because they are illiterate and had affixed their thumb impressions in the service records it is not possible to believe that they did not know what was recorded therein with respect to their dates birth". The conduct of the petitioner in not raising any objection in the matter is also sufficient reason to not entertain the writ petition on grounds of acquiescence, undue delay and laches, more so, when the petitioner himself was a party to the process of verification under taken by the departmental scrutiny committee, constituted as per the directive of the State Government. It is settled that the discretionary jurisdiction is not to be exercised in the case of the petitioner who had waited beyond his release on 31.03.2013 on reaching the age of 60 years even after knowing that his date of birth in the service book got corrected in the year 2008. 26. Considering all the aforesaid facts and circumstances as recited above it is found that the writ petition is bereft of any merit and the same is accordingly dismissed. No order as to costs.