Judgment :

DALVEER BHANDARI, J.

Applications for exemption from filing Official Translation and certified copy of the impugned order are allowed. Leave granted. Heard learned counsel for the parties.

2. This appeal emanates from the judgment of the High Court of Judicature at Bombay delivered in Writ Petition No.6531 of 2006 dated 19th January, 2007.

3. Brief facts which are necessary to dispose of the appeal are recapitulated as under :

4. Respondent no.1 was appointed as Assistant Teacher on 13.02.1978. He filed a Secondary School Leaving Certificate indicating 02.06.1949 as proof of his date of birth. In the service record also consequently the same date of birth was recorded.

5. On 23.05.2004, respondent no.1 filed an application to the Education Officer (Primary), Zilla Parishad, District Sangli complaining that though in the School Leaving Certificate his date of birth is 02.06.1949 whereas, in fact the date of birth in the record of the Tahsildar is 03.05.1951, so the date of birth be corrected in the service record of the respondent according to the record of the Tahsildar.

6. The application, filed by the respondent no.1 was rejected by the Block Education Officer on the ground that the same is time barred and was not filed within five years from the date of joining i.e. 13.02.1978. He referred to Rule 38(2)(f) of the Maharashtra Civil Services (General Conditions) Rules, 1981 (for short 'the Maharashtra Rules, 1981') and the notification issued by the State. Relevant rule reads as under : "38(2)(f): When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error."

7. Respondent no.1 filed another application to the Head Master, Zilla Parishad primary school, Tujarpur, Taluka Walva, District Sangli. This application was also rejected on 09.12.2004.

8. Respondent no.1 again filed an application before the Education Officer (Primary), Zilla Parishad, Sangli on 22.07.2006. When respondent no.1 did not receive any satisfactory reply, he filed a Writ Petition No.6531 of 2006 before the High Court of Judicature at Bombay. The Writ Petition filed by the respondent was allowed by the impugned judgment dated January 19,2007. The High Court, in paragraph 2 of the impugned judgment, noted Rule 38(2)(f) of the Maharashtra Rules, 1981 but while interpreting the rule, the High Court has virtually re-written the rule and in paragraph 5 of the impugned judgment, the High Court observed as under : "....under the instructions issued, it is proved that the entry should not be normally changed after a period of five years...." The expression "normally" has not been used in the Rules and interpretation of this expression has led to an erroneous finding in the impugned judgment. In the impugned judgment the High Court failed to give any sustainable or acceptable reasons as to why the date of birth was permitted to be changed at the fag end of the career of respondent no.1.

9. The High Court, in the impugned judgment, has failed to notice the settled legal position which is crystallized by a series of judgments of this Court. All the judgments have consistently taken the view that change in the date of birth cannot be permitted at the fag end of the service career. In the instant case, according to the Notification dated 24th December, 2008, it is made clear that no alteration of the entry should be allowed after five years.

10. The spirit and the intention of this rule is reflected in a series of judgments of this Court. After the rules, a notification has been issued by the Government of Maharashtra. The relevant part of the notification dated 24th December, 2008 issued by the Finance Department, Government of Maharashtra, is set out as under : " FINANCE DEPARTMENT Mantralaya, Mumbai 400032, dated 24th December, 2008 NO