ORDER : 1. The present writ petition has been filed with the following prayers: “1- By an appropriate writ, order or direction the respondents may be directed to issue appointment order for the post of soldier (GD) and he may also be permitted to join the same from the date of issuance of the provisional select list for the post of soldier (GD) on the basis of merit list of CEE held of 27.11.2016 with all consequential benefits considering his service from the date of his provisional selection. 2- By an appropriate writ, order or direction the respondents may be directed to grant all consequential benefits to the petitioner. 3- Any other appropriate relief which this Hon'ble High Court deems just and proper may kindly be granted in favour of the Petitioner.” 2. The facts as averred in the writ petition are that certain vacancies of Soldiers were reserved under Unit Headquarter Quota (UHQ)/Regimental Centres for Sons of War Widow, Sons of Widow, Sons of Serving Soldier, Sons of Ex-Servicemen and Brother of Serving Personnel. 3. As the petitioner’s brother Baburam was already enrolled with the army in the year 2008, the petitioner being eligible in the said quota, applied and even found place in the provisional select list. However, at the stage of document verification, it was found that the date of birth as mentioned by the applicant/petitioner in his application form was 08.03.1997 whereas his date of birth as submitted by his brother Baburam, in his relationship certificate at the time of entering into service, was 05.05.1998. There being a discrepancy in the date of birth, the petitioner was held not entitled for appointment and hence, vide order dated 03.01.2017 (Annexure-14), his candidature was cancelled. 4. It is relevant to note that order dated 03.01.2017 was communicated to Baburam and not the petitioner. However, prior to order dated 03.01.2017 been passed, an application for change of date of birth of the petitioner was filed by Baburam on 04.11.2016, that is, even before the common entrance examination been conducted. 5. Vide communication dated 17.01.2017 (Annexure-R/9), the application as filed by Baburam for correction in the date of birth of his brother, was forwarded by the competent authority for reconsideration. However, the same remained undecided and hence, an application was filed by Baburam before the Armed Forces Tribunal (AFT) in the year 2017 itself. 6. 5. Vide communication dated 17.01.2017 (Annexure-R/9), the application as filed by Baburam for correction in the date of birth of his brother, was forwarded by the competent authority for reconsideration. However, the same remained undecided and hence, an application was filed by Baburam before the Armed Forces Tribunal (AFT) in the year 2017 itself. 6. It is relevant to note at this stage that meanwhile a writ petition being S.B. Civil Writ Petition No.398/2018 was filed by the petitioner before this Court with a prayer for direction to be appointed as a Soldier in the Unit Headquarter Quota but, as the application filed by his brother before the AFT for correction in date of birth remained pending, the writ petition was dismissed as not pressed however, with a direction to the respondents to consider the representation of the petitioner sympathetically keeping into mind the prayers made by his brother in the application as filed before the AFT. 7. Vide order dated 16.11.2018, the application as filed by Babu Ram stood allowed by the AFT and it was directed that the date of birth of the petitioner be amended/corrected in the service record of Babu Ram and a fresh relationship certificate to the brother of the applicant i.e. the petitioner, was directed to be issued. 8. Despite the application been allowed by the AFT, the respondents did not offer appointment to the petitioner on the count that the vacancies were surrendered by the Department way back in the month of February 2017, aggrieved of which the present petition has been filed. 9. Counsel for the petitioner submits that it was a clear case of a bonafide error which fact was affirmed by the AFT. When once the AFT directed for change of date of birth of the petitioner, the same definitely had a retrospective effect and in pursuance to the same, the petitioner who had otherwise found place in the select list, ought to have been afforded appointment. 10. Counsel further submitted that an application for change of date of birth was filed by Baburam on 04.11.2016, soon after he was informed of the discrepancy, and it is only the delay on part of the respondents that the said application was not decided within time. Had the application been decided within time, the petitioner would have been afforded appointment at that point of time itself. Had the application been decided within time, the petitioner would have been afforded appointment at that point of time itself. Admittedly, the vacancies were surrendered in the month of February 2017 i.e. after the application for correction having been filed by Baburam. The application was definitely under consideration of the respondent Authorities and hence, the vacancy ought not to have been surrendered by the respondents. Even if the same was done, the petitioner could not have been put to fault for the same. 11. Additionally, counsel submitted that it is not the case of the respondents that had the date of birth as mentioned by Baburam been taken into consideration, the petitioner would not have fallen within the requisite age group. Even if the said date of birth i.e. 05.05.1998 been taken into consideration, the petitioner was 18 years of age at that point of time and hence, was eligible to be considered as the requisite age group was 17 ½ to 21 years. 12. With the above submissions, counsel prayed that appropriate directions for appointment of the petitioner be issued. 13. Per contra counsel for the respondent-Department submitted that Baburam, the brother of the petitioner entered into service in the year 2008 and the present recruitment was initiated in the year 2016. Baburam was very well aware of the age of his brother as submitted by him and as reflected in the relationship certificate. Had he any intention to get the same corrected, he would have taken appropriate steps within a reasonable time. It is only after the petitioner having participated in the recruitment process that an application for correction of his date of birth in the relationship certificate was filed by him. Therefore, the discrepancy being clear, the candidature of the petitioner was rightly rejected. Further, once the vacancy stood surrendered, the petitioner could not have been accommodated as no vacancy survived after 11.02.2017. 14. Counsel for the respondents raised a further objection to the effect that order dated 03.01.2017 has not even been assailed in the present petition and therefore, the relief as prayed for cannot even otherwise be granted to the petitioner. 15. Heard the counsels. Perused the record. 16. It is evident on record that before the common entrance examination was held, the discrepancy in petitioner’s date of birth was noted and even communicated to his brother Baburam. 15. Heard the counsels. Perused the record. 16. It is evident on record that before the common entrance examination was held, the discrepancy in petitioner’s date of birth was noted and even communicated to his brother Baburam. It is not in dispute that the Baburam instantly applied for change in date of birth of his brother. The said application was moved on 04.11.2016 and as is evident on record, the same remained pending with the respondent authorities without any decision thereupon. 17. Vide communication dated 17.01.2017, the application was even sent for reconsideration to the concerned authority but no decision on the same was also taken. Interestingly, even prior to 17.01.2017, the candidature of the petitioner stood rejected vide order/communication dated 03.01.2017. 18. It is not that the petitioner sat tight over the matter but he immediately rushed to this Court and the writ petition as filed by him was dismissed as not pressed only for the reason of the application filed by Baburam being pending before the AFT. 19. The most relevant factor is that order dated 03.01.2017 was challenged before the AFT and the AFT while allowing the application of Baburam, directed for change of date of birth in the relationship certificate. Admittedly, order dated 16.11.2018 of AFT has attained finality as the same was never put to challenge by the respondents. Meaning thereby, the order of AFT would definitely relate back to the date of application as filed by Baburam on 04.11.2016, till which date, the candidature of the petitioner had not been rejected. 20. Further, one more aspect which deserves consideration is that the issue is not that the petitioner was not eligible because of the discrepancy in the date of birth. Even if the date of birth as mentioned by him in his application form i.e. 08.03.1997 was to be taken into consideration, he clearly was eligible to participate in the recruitment process. The only issue was regarding the discrepancy in the relationship certificate. 21. In the specific opinion of this Court firstly, the petitioner could not have been blamed for the said discrepancy as it is his brother who had submitted an erroneous date of birth of the petitioner. Secondly, the said error was directed to be corrected by the AFT vide order dated 16.11.2018 with a specific finding that it was an inadvertent error and nothing more than that. Secondly, the said error was directed to be corrected by the AFT vide order dated 16.11.2018 with a specific finding that it was an inadvertent error and nothing more than that. Order dated 16.11.2018 having attained finality, the petitioner’s candidature ought to have been considered by the respondent-Department. 22. So far as the surrendering of the vacancy by the respondents is concerned, this Court is of the clear opinion that the respondents were well aware of the pendency of Baburam’s application before the authorities themselves. The authorities were therefore under a bounden duty to keep the vacancy surviving till the disposal of the application. The application having not been decided by the competent authority within time, neither the petitioner nor his brother could have been blamed for the same. Had the application been decided within time, the consequences would not have followed. 23. So far as the objection regarding order dated 03.01.2017 having not been assailed by the petitioner is concerned, a bare perusal of order dated 16.11.2018 passed by the AFT reflects that order dated 03.01.2017 was very well assailed before the AFT by Baburam. Therefore, in the opinion of this Court, the petitioner was not required to assail the said order before this Court in the present writ petition after the AFT having decided in favour of Baburam. 24. In view of the above overall facts and analysis, the present writ petition deserves to be and is hereby allowed . The respondents are directed to afford to the petitioner appointment on the post of Soldier (GD), if he is otherwise found eligible. Appropriate orders of appointment be passed within a period of three weeks from the date of receipt of copy of the present order. 25. Needless to observe that the petitioner shall be entitled for all consequential benefits w.e.f. the date, the similarly situated candidates were offered appointment. 26. Stay petition and pending applications, if any, stand disposed of.