B.Sinha, J.:-

(1) In this application the petitioner has prayed for issuance of a writ of mandamus directing the respondents to make corrections of his date of birth in his service records from 1933 to 1/1/1936 and issue an appropriate writ quashing the order of the director general - cum - inspector general of police, bihar, patna, as contained in annexure - 11 to the writ application.

(2) The fact of the matter is in a narrow compass.

(3) The petitioner alleges that he was born on 1 - 1 - 1936. On 21 - 1 - 1949 he was allegedly admitted in the muslim h. E. School, laheriasarai, darbhanga and in the admission register his date of birth was recorded as 1 - 1 - 1936. He, thereafter, left the aforementioned school and allegedly took admission in s. N. H. E. School, narpati nagar and in the admission register of the said school his date of birth was also recorded as 1 - 1 - 1936. The petitioner was sent up for the matriculation examination and in his admit card also, his date of birth was recorded as 1 - 1 - 1936. The petitioner, however, failed in the aforementioned examination.

(4) On or about 1 - 9 - 1955 the petitioner was appointed as a constable in the district of darbhanga. The petitioner has contended that as there was a great rush, his year of birth was recorded in the service book as 1933 without any verification and the petitioner signed in good faith. The petitioner has further contended that thereafter he appeared in the bihar secondary board examination as a private candidate. The petitioner failed in the english examination in the said school. However, as the petitioner passed bihat secondary board examination, he allegedly had been considered to have passed the matriculation examination without english as is evident from anuexure - 4/2 to the writ application. In the said matriculation certificate (annexure - 4/2) his date of birth was mentioned as 1 - 1 - 1936.

(5) On or about 19 - 1 - 1991 the petitioner was served with an intimation that in view of his date of birth as recorded in the service book, he would superannuate on 1 - 7 - 1991. A copy of the said intimation is contained in annexure - 6 to the writ application.

(6) The petitioner, thereafter, filed a representation which is contained in annexure - 7 to the writ application. As the petitioner's representation was not disposed of, he filed a writ petition in this court bearing c. W. J. C. No. 4099 of 1991 which was disposed of by an order dated 3 - 7 - 1991 (annexure - 8) , wherein a division bench of this court passed the following order :

"after considering the aforesaid facts, we are of the view that the petitioner should file a detailed representation before the director general of police - cum i. G. Of police, bihar, patna, for redressal of his grievances. If such a representation is filed, the same should be disposed of preferably within a period of six months from the date of its filing. However, it is made clear that we have not examined the merit of the claim of the petitioner ; it is for the learned director general of police - cum - i. G. Of police to examine the matter and pass appropriate order in accordance with law. With the aforesaid, this petition is accordingly disposed of."

(7) Thereafter, an enquiry was held by the superintendent of police, c. I. D. Who submitted a report thereafter which is contained in annexure - 9 to the writ application.

(8) By the impugned order dated 28 - 1 - 1992 as contained in annexure - 11 to the writ application, the petitioner's aforementioned representation was rejected. The petitioner, thereafter filed a protest petition in relation thereto before the d. I. G. , c. I. D. On 5 - 2 - 1992 which is contained in annexure - 10 to the writ application.

(9) Mr. Teg bahadur singh, learned counsel appearing on behalf of the petitioner has raised a number of contentions in support of his application. The petitioner submitted that when an enquiry had been made, the respondents were bound to consider the materials placed on the record and in view of the fact that admit card and the matriculation certificate had been placed by the petitioner in the said enquiry, the same should have been accepted as correct. It was further submitted by the learned counsel that rule 96 of the bihar financial rules merely being an executive instruction, the same should not have been taken into consideration for the purpose of rejecting the petitioner's representation.

(10) Normally, the date of birth entered into in a service book should be treated to be final. However, if an employee disputes the correctness or otherwise of the said entry, he should file a representation within a reasonable time.

(11) The question which arises for consideration in such a situation is as to whether the state is bound to entertain such an application after a long delay. Rale 96 of the bihar financial rules enjoins that the date of birth as recorded in the service book cannot be altered except where an error is in the nature of clerical error under the order of the state government.

(12) Note 1 appended to the said rule 96 lays down that no representation for rectification of mistake in the date of birth shall be entertained if it is not submitted within a period of ten years of the date of his entry in the government service.

(13) The matter came up for consideration before a division bench of this court in sri gobardhan singh v. State of bihar, reported in 1986 pljr 109. In that case a medical certificate was filed to show that on the date of his examination, the concerned employee was 54 - 56 years of age. In that case upon taking into consideration rules 96 and 97 of the bihar financial rules, it was held ;

"in this case, it is not in controversy that the petitioner's date of birth recorded in the service book was 12th march, 1925. Despite the fact that was the date mentioned in the matriculation certificate and despite the fact that he was known to the petitioner about it, no steps were taken by him for rectification of the alleged mistake in recording the petitioner's date of birth within ten years of his joining service. The bihar financial rules apart, on the 31st october, 1959, the state government in the appointment department issued a circular bearing memo no. Iii - r - i - 2040/59 a - 13853 by which heads of department were informed that inspite the clear provisions under rules 96 of the rules, the government had noticed an increasing tendency on the part of the government servants, towards submitting representations at the fag end of their service for correction of their dates of birth entered in their service records on some grounds or the other. The state government had, therefore, decided that a government servant, making such a representation, must do so at any time before three years of his superannuation. The petitioner did not do so. He applied for correction of his date of birth only a few months before his superannuation. The law as it prevailed so long as the petitioner was in service, was rule 96 of the bihar financial rules. The petitioner not having taken any step for correction of the date of birth in the service book, the government, was not obliged to consider the representation of the petitioner filed in that behalf in 1982"

(14) This decision of the division bench is binding on us.

(15) In murli manohar tiwary v. State of bihar and others, reported in 1986 pur. , 1180 it was held :

"in my opinion, if the aforesaid decision is made applicable even to the persons who have passed the matriculation examination while in service in many cases, it shall lead to absurd results, for example, a person who was non - matriculate on the date of his appointment may later appear at the matriculation or an equivalent examination, and may give a date of his choice. On the basis of that matriculation certificate, later he can claim that his date of birth in the service book be corrected. To avoid such situation, in the decision of the state government itself it was specifically mentioned that corrections are to be made' only in respect of such police officers, whose dates of birth in the service books at the time of their appointment were not entered in accordance with their matriculation certificates :.

(16) In ramshobit rai v. The state of bihar, reported in 1989 bbcj 141, a learned single judge of this court, however, distinguished murli manohar tiwary's case (supra) and held :

"it will be an artificial distinction drawn on the basis of a person passing the matriculation examination before entering the service and one who had not passed the matriculation examination if the rule as stated in the judgment of this court in murli manohar tiwary's case (supra) is not read to mean that such genuine cases, where mistakes occurred in the service book would not be corrected unless the officer concerned was able to show that he had passed the matriculation examination before entering the service."

(17) In patna university v. Md. Quamrul hoda and others, reported in 1991 vol. I, pljr 1, a division bench in which one of us (g. C. Bharuka, j. Was a member) held : mere production of the school record by the head clerk of the school cannot be held to be sufficient to prove the correct date of birth. In this connection, the following observations of the supreme court in birad mal singhvi v. Anand purohit, air 1988, sc 1976 at page 1806 are pertinent ; -

". The date of birth mentioned in the school register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the school register mus t be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If entry in the school's register regarding date of birth as made on the basis of information given by the parents, the entry whatever evidentiary value, if it is given by a stranger or by someone who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents exts. 8 9 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents exts. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents."

(18) It was further held :

"the petition under article 226 of the constitution filed by the petitioner against the appellant university cannot be converted into a suit for declaration where a finding regarding the date of birth of the petitioner can be given in the absence of the parties which would be affected by that finding. The proceedings under article 226 of the constitution commenced by the petitioner against the university alone were, in my opinion, misconceived."

(19) In manik ch. Baidya and others v. State of himachal pradesh, reported in 1976 vol. I, service law reporter, 402, a division bench of the himachal pradesh high court held that in the matter of determination of date of birth, the matriculation certificate is a relevant document which may be taken into consideration. No exception can be taken to the said ratio, but the question in this case is absolutely different.

(20) The director general - cum - inspector general of police in his impugned order has pointed out that various irregularities in relation to the grant of certificate have been committed. It was further pointed out that under law a person who is a regular candidate could not have been permitted to sit as a private candidate in the matriculation examination.

(21) In this situation, the documents filed by the petitioner were found to be suspicious and inter alia on that ground the representation of the petitioner was rejected.

(22) We, in exercise of a writ jurisdiction cannot determine such a disputed question of fact. No rule has been pointed out before us to show that the date of birth in the matriculaiion certificate should be regarded as sacrosant. Although, in appropriate case the state may consider the desirability of making corrections in the entry in the service book relating to the date of birth of an employee but admittedly the state is not obliged to do so after a notice is served upon the concerned employee intimating of his superannuation on the basis of the entry of date of birth in the service book.

(23) Rule 96 of the bihar financial rules, although, is an executive instruction, the same had been issued with the object that the employee concerned should be vigilant in making a representation within a period of ten years from the date of entering in the service. As noticed hereinbefore in 1983, the government had issued a circular that no representation shall be entertained unless filed within a period of three years prior to his superannuation.

(24) In ramshobit rai's case (supra) , several decisions of this court have been taken into consideration wherein it has been pointed out that the state of bihar has also issued circulars to all concerned that an application for correction of date of birth by the personnel of the police department be made by 1 - 2 - 1977. It is not the case of the petitioner that he was not aware of the said circulars as was the case in parmanand ghosh v. State of bihar, in cwjc no. 1836 of 1991 disposed of on 12 - 2 - 1980.

(25) For the purpose of grant of a relief to the petitioner under article 226 of the constitution of india, his conduct is a relevant factor. The petitioner was appointed in the year 1955. He was later on treated to be literate constable.

(26) From the representation of the petitioner as contained in annexure - 10 to the writ application, it appears that he was promoted to the post of sub - inspector of police. In his representation he gave his designation as retired sub - inspector of police, a. P. P. Jehanabad court, jehanabad. Thus, it must be presumed that while he was promoted to the post of assistant sub - inspector of police and, thereafter to that of subinspector of police, he came to learn about the wrong entry of date of birth in service book and. Thus, had occasion to file representation for correction of date of birth.

(27) It has also not been stated that it was a case of mass recruitment, when the petitioner was appointed. It is also not a case where the petitioner has alleged that he was not aware of the decisions of the state of bihar fixing time limit for filing application for rectification of date of birth. The petitioner in view of entry of his date of birth as recorded in the service book was given a notice of his superannuation as far back as on 10th february, 1991.

(28) In this situation, in our opinion, although in some of the cases delay by itself may not be a good ground for rejecting a representation in relation to the date of birth, it is not a fit case where we should exercise our discretion under article 226 of the constitution of india.

(29) This application is, therefore, dismissed. In the facts and circumstances of the case, however, there will be no order as to costs. Writ application dismissed.