D.V Sehgal, J.:— The petitioner, who is a Brigadier in the Indian Army, has sought a writ of mandamus to command the respondents to effect necessary change in bis service record so as to record his date of birth as 12-5-1935 instead of 1-3-1933 after quashing the impugned order dated 18-6-1983 Annexure P. 8, whereby his statutory complaint dated 19-1-1983 for change of his date of birth as above was rejected.
2. The petitioner claimed that he was born on 12-5-1935 in village Balhar, tehsil Kahuta, district Rawalpindi, now a part of Pakistan.
3. In the year 1947, after partition of the country, he along with the other members of the family migrated to India. In September, 1948, he joined the Indian Army as a boy. Since he had no proof of his date of birth in his possession, the Recruiting Officer, after examining his physique and taking into account the report of his medical examination, entered in the service record his date of birth as 1-3-1933. While serving the Army, he appeared in the Matriculation examination held by the Panjab University in the year 1956 as a private candidate from Jalandhar. In his application form for the said examination, he entered his date of birth as 1-3-1933 on the basis of the date entered in his service record. He passed the Matriculation examination and certificate in this regard showing his date of birth as 1-3-1933 was issued. Later on, when he learnt that his actual date of birth is 12-5-1935, he moved an application for correction of his date of birth in his certificate of Matriculation examination, which was forwarded to the Registrar, Panjab University, by the Commandant, Indian Military Academy, Dehra Dun, where he was posted as a Captain at that time, vide letter dated 8-9-1965. His Commandant actively pursued the matter and addressed a letter dated 22-10-1965 Annexure P. 11 to the Punjab University requesting that the decision Page: 756on his application should be expedited. The Registrar, Panjab University vide his letter dated 29-10-1965 Annexure P. 12 informed the Commandant that necessary action on his application for correction of date of birth was being taken and the decision when arrived at would be communicated to the petitioner. It was after nearly five years that the Registrar, Panjab University, vide his letter dated 4-2-1970 Annexure P. 1 addressed to the petitioner, who by that time had been promoted to the rank of Major, communicated to him the decision of the Syndicate of the University in its proceedings dated 17-1-1970 to accept his application to the effect that his correct date of birth is 12-5-1935. His original Matriculation certificate was cancelled and a duplicate copy thereof (Annexure P. 2) with his correct date of birth as 12-5-1935 was issued. His Commanding Officer submitted a casualty return Serial No. 26 dated 13-2-1970 to the Adjutant General's Branch, Army Head-quarters, New Delhi, and also submitted the original letter of the Panjab University and the Matriculation certificate for perusal and return with the request that the petitioners record should be amended accordingly and that this fact should be confirmed. A copy of the casualty return is Annexure P. 4. The Army Headquarters vide letter dated 13-3-1970 Annexure P. 5 informed his Commanding Officer that before his case regarding change of his date of birth was examined, he should forward in original all the correspondence exchanged between him and the Syndicate of the Panjab University and the particular document on the basis of which his date of birth was changed to 12-5-1935. He made a reference to the Panjab University and received a reply from its Registrar vide letter dated 4-6-1970 Annexure P. 6 informing him that the correction of his date of birth was allowed on the basis of an extract of entries from the Admission and withdrawal Register supplied by the Headmaster, Government Primary School, Balhar (Pakistan) and the genuineness of the entries therein was got verified through the Indian High Commissioner in Pakistan. It was further stated that the original extract of entries could not be returned to him as it formed the part of the office record of the University. However, an attested copy of the same was sent to him. It may be mentioned here that during the course of hearing of the petition before me, the learned counsel for the petitioner produced an attested copy of the said entry Annexure P. 16 from the register maintained in the Lower Middle School, Balhar, tehsil Kahuta, district Rawalpindi, duly attested by the Superintendent (Stores), Panjab University, Chandigarh. The petitioner supplied this information to the Army Headquarters. On a subsequent reference, he further supplied information with respect to the dates of birth of his brothers and sisters, elder and younger to him, to the Army Headquarters vide letter dated 20-11-1970 Annexure P. 7. It was vide order dated 18-6-1983 Annexure P. 8 that an order passed by the Central Government rejecting his request for change in his date of birth in his service record was communicated to him. The order of the Central Government is to the following effect:—
“The Central Government, after considering the statutory complaint dated 19 January, 1983 submitted by Brig. Prithvi Raj (IC- 11003N) for change of his date of birth from 1 Mar 1933 12 May 1935, hereby rejected the said complaint.
By order and in the name of the President.
(Sd). (P.G GEORGE),
Under Secretary to the Government of India.
4. On receipt of this decision, he made another representatio n dated 18-8-1983 Annexure P. 9 to the Central Government which, both according to the petitioner as also the respondents, is s ill pending consideration with the Ministry of Defence, The petitioner, however, approached this Court through the present writ petition for seeking necessary relief and made an application to the effect that the Promotion Board was to meet somewhere in the middle of April this year to consider the cases for promotion of Brigadiers to the higher rank of Major General and if the date of birth of the petitioner was not corrected to 12-5-1935, he would not be entitled for consideration for promotion to the said higher rank.
5. The respondents have opposed the prayer in the writ petition by filing a written statement. It has been stated therein that the petitioner was entitled to get the date of birth corrected within a period of two years from entry into service. Since his application for correction of his date of birth was long after this period of two years, his request was rightly turned down by the Central Government in view of the instructions of the Government of India, Ministry of Defence contained in Memo No. 33(1)/A/64.D dated 21-4-1964 and Memo No. 757.D(MS)5046-M/D(Coord) dated 23-6-1954 which lay down that the amendment of date of birth should be carried out within two years of enrolment or commisioning as applicable. The petition was also opposed on the ground that it suffers from laches in that the first representation of the petitioner was rejected in the year 1979. He then made a second representation which was similar to the earlier one except that in this subsequent representation he quoted the instances of correction of date of birth of Major N.C Chingappa, Major Parduman Singh and Major G.S Negi. It is this representation which was rejected through the impugned Annexure P. 8. No doubt, he made yet another representation, which is pending, but he has chosen to approach this Court at a late stage and this Court should not exercise its extraordinary jurisdiction to afford relief to the petitioner as claimed by him.
6. I have heard the learned counsel for the parties at some length. As regards the preliminary objection of the respondents that the petition is belated and suffers from laches, I am of the considered view that this objection should not stand in my way to grant necessary relief to the petitioner. The judgments of the Supreme Court in Rabindra Nath Bose v. Union of India, (1970) 1 SCC 84 : A.I.R 1970 S.C 470, and N.S Mehta v. Union of India, (1977) 3 SCC 260, relied upon by the learned counsel for the respondents are distinguishable. In those cases the petitioners sought rectification of their position in the seniority vis-a-vis other incumbents after a period of nearly 16 years. What weighed with the Supreme Court to decline the relief was that the rights of those who had already been placed senior to the petitioners were involved and their seniority could not be kept in uncertainty for so long a period. The present case is clearly distinguishable. Admittedly, the petitioner applied to to Panjab University for correction of his date of birth in the Matriculation certificate through the Army authorities as far back as in the year 1965. His date of birth was ultimately corrected by the Syndicate of the University after verifying the Lower Middle School record of his native village Balhar now in Pakistan through the agency of the Indian High Commissioner in Pakistan in the year 1970. The request for correction of date of birth was made by him through his immediate superiors the to Army Headquarters soon thereafter. No doubt his request was declined in the first instance in the year 1979. Since he was made to understand that the date of birth originally recorded in the service record on Page: 758his entry into service could be corrected only within a period of two years and further that had his correct date of birth been known at the time when he joined Army as a boy in September, 1948, he being under-age, might not have been so recruited, he made the second statutory complaint citing the instances of correction of date of birth of the officers mentioned above, which was ultimately rejected vide order Annexure P. 8. He made yet another representation whis is admittedly pending with the Ministry of Defence. In this view of the matter, relying on the ratio of the Supreme Court judgment in G.P Doval v. Chief Secretary, Government of U.P, 1984 (2) S.L.R 555, I held that the petition does not suffer from laches.
7. Now coming to the merits of the case, there is no material to question the correct date of birth of the petitioner being 12-5-1935. As already mentioned above, the Syndicate of the Panjab University corrected the date of birth in the Matriculation certificate of the petitioner after verifying the facts and the record of the Lower Middle School of his native village Balhar, tehsil Kahuta, district Rawalpindi in Pakistan through the Indian High Commissioner in Pakistan. A copy of the entry from the school register is Annexure P. 16. The correction in the date of birth in his service record has, however, been disallowed on the ground that it violates the instructions of the Ministry of Defence contained in its orders dated 23-6-1954 and 21-4-1964. As far back as in the year 1967 it was held by this Court in Shri Sohan Singh Bawa, District Education Officer v. State of Haryana, 1967 S.L.R 934, that the correct date of birth gives a right to the Government servant to continue in service till his attaining the age of superannuation provided he is otherwise fit to continue in service. This is an important legal right which cannot be brushed aside on the basis of administrative instructions. The impugned order Annexure P. 8 which has been reproduced above does not assign any reasons for rejecting the petitioner's request for correction of his date of birth in his service record. This is a non-speaking order which is violative of the principles of natural justice.
8. Similar view has been taken by a Division Bench of the Himachal Pradesh High Court in Shri Manak Chand Valdya v. State of Himachal Pradesh, 1976 (1) S.L.R 402, and by a Division Bench of the Calcutta High Court in Pramatha Nath Chaudhury v. The State of West Bengal, 1981(1) S.L.R 570. A recent judgment of a Division Bench of the Allahabad High Court in Baijnath v. The General Manager, N.E Railway, Gorakhpur, 1986 Lab. I.C 178, is also to the same effect. I am of the considered view that the administrative instructions contained in the orders of the Ministry of Defence on which reliance has been placed by respondents cannot take away the vested right of the petitioner to have his date of birth corrected in accordance with what has been actually found and which is now incorporated in his Matriculation certificate by the Panjab University as reflected in a copy of the said certificate Annexure P. 2. His date of birth 12-5-1935, it is imperative on the respondents to carry out the correction in his service record and afford him necessary benefits to which he is otherwise entitled on the basis of his merits and seniority in service. The contention that the petitioner was underage when he was recruited as a boy in September. 1948, loses significance when the case of Major N.C Changippa decided by the Government of India, Ministry of Defence, vide letter dated 22-4-1976 Annexure P. 14 is taken into consideration. His age was considered to be 15 years on the basis of his appearance when he was recruited as a boy. Vide order Annexure P. 14 his date of birth was corrected as 8-5-1935 with ah order that the over-payment made to him in boy's service for the period Page: 759he was under the age of 15 years should be recovered from him. There is no ground to treat the petitioner's case differently and to deny him the relief which in similar circumstances was afforded to Major N.C Chan gippa vide order Annexure P. 14. Consequently, I allow this petition, quash the order dated 18-6-1983 Annexure P. 8 and direct the respondents to correct the date of birth of the petitioner from 1-3-1933 to 12-5-1935 in his service record, as mentioned in his Matriculation certificate/Annexure P. 2 issued by the Panjab University. There shall, however, be no order as to costs.
9. Petition allowed.