Judgment

SHAH, J.:- Daksha Prasad Deka-hereinafter called the respondent - was appointed Assistant Sub-Inspector of Police with effect from January 17, 1929. On a representation made by the respondent the date of his birth was entered in the service record as July 1, 1910. Under F. R. 56 (a) the respondent was liable to be compulsorily retired on July 1, 1965. In 1955 the respondent applied that the date of birth entered in his service record, be shown as August 1, 1911. That application was rejected. The respondent again applied in 1963 for correction of his date of birth The application was rejected and by order dated June 26, 1965, the respondent was informed that he will stand superannuated on June 30, 1965. His representation made to the Government of Assam against that order was unsuccessful.

2. The respondent then applied to the High Court of Assam praying for a writ in the nature of mandamus requiring the State of Assam to forbear from giving effect to the order dated June 26, 1965. The High Court quashed the order dated June 26, 1965, and directed the State of Assam to give an opportunity to the respondent to show cause against the order directing compulsory retirement and an opportunity to prove his true date of birth. Against that order, this appeal is preferred with special leave.

3. In the opinion of the High Court it the true date of birth of the respondent was August 1, 1911, the order compulsorily retiring the respondent on June 30, 1965, without giving him an opportunity to prove his true age, infringed the guarantee of Art. 311 (2) of the Constitution In our judgment, the High Court was wrong in holding that there was any infringement of Art. 311 (2) of the Constitution.

4. In the service record of the respondent his date of birth was recorded as July 1, 1910 and under F. R. 56 (a) the respondent was liable to be compulsorily retired on the date on which he attained the age of 55 years The date of compulsory retirement under F. R. 56 (a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistent with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record, and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Art. 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.

5. It is true that the State authorities did not give to the respondent an opportunity to support his case that he was born on August 1, 1911, and that the service record was erroneous. But in view of S. R. 8 Note, which governed the employment of the respondent an application for correction of the service record could not be entertained if it was made within three years before the date of "actual superannuation". S. R. 8 Note provides

"No alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made. Such mistakes should be rectified at the earliest opportunity in the course of (1) periodical re-attestation of the entries in the first page of service book, and (2) preparation of the annual detailed statement of a permanent establishment (Financial Rule Form No. II) in which is noted the date of incumbent s birth. In no case the request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained."

Validity of the Rule is not challenged by the respondent. We are unable to agree with the view of the High Court that the date of "actual superannuation" within the meaning of S. R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the da