ORDER :

1. The present petition under Article 226 of the Constitution of India has been fled challenging the order dated 07th January, 2020, passed by The Maharashtra Administrative Tribunal, Mumbai Bench (for short “MAT”). The Petitioner, had fled the Original Application before the Tribunal challenging the order dated 03rd August, 2016 passed by Respondent No. 1, whereby the prayer of the Petitioner to correct his date of birth entered in his service record as 15th December, 1963 to 25th January, 1966, was rejected.

2. Briefly stated the material facts are as under:

The Petitioner joined service as Police Constable on 16th December, 1991. The date of birth in his service record, based upon the date of birth particulars recorded in his Secondary School Certificate Examination held in March-1980 was recorded as 15th December, 1963.

On 27th January, 1999 i.e. within a period of eight years of joining his service, an application was fled by the Petitioner seeking correction of his date of birth. The basis for seeking such a correction was that the date of birth of the Petitioner’s elder brother Ashok Shankarrao Deshpande as also the Petitioner was erroneously recorded as 15th December, 1963. It was alleged that the Petitioner was three years younger to his brother Ashok Shankarrao Deshpande and, therefore, his date of birth ought to be corrected as 25th January, 1966 in place of 15th December, 1963.

This application was rejected by the Commissioner of Police (Respondent No. 2) vide his order dated 23rd December, 1999. It is stated that thereafter the Petitioner fled a representation cum appeal on 26th July, 2000, before Respondent No. 1, the Home Department of the Government of Maharashtra, which too came to be rejected on the ground that the request for change of particulars was being made beyond the period of five years from the date of joining of service and hence not maintainable as per rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, (for short “the MCS Rules, 1981”) as substituted by Notification dated 24th December, 2008.

3. Being aggrieved of the order of rejection, the Petitioner herein preferred the Original Application (O.A.) before the MAT, in which it was contended that the rejection of the prayer of the Petitioner by the Home Department, based upon the amendment Notification dated 24th December, 2008 of the Rule 38 of the MCS Rules, 1981, was bad inasmuch as the said rule was prospective in nature, as had been held by a Single Bench of this Court in the case of Ashok S/o Pralhad Meshram vs. Head Master, Zilla Parishad High School, 2014 (6) Mh. L.J. 590.

4. Since a reference has been made to the provisions of Rule 38(2)(f) of the MCS Rules, 1981, it is apposite to reproduce the same as it existed before and after its substitution by virtue of Notification dated 24th December, 2008.

Rule 38 of the MCS Rules, 1981 (before substitution) read as under:

38. Procedure for writing the events and recording the date of birth in the service book:

(1)...................................

(2) While recording the date of birth, the following procedure should be followed:

(a) The date of birth should be verified with reference to documentary evidence and a Certificate recorded to that effect stating the nature of the document relied on:

(b)...................................

(c)...................................

(d)...................................

(e)...................................

(f) When once an entry of age or date of birth has been made in a service book no alteration of the entry should after-wards 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.

Instruction:

(1) Normally, no application for alteration of the entry regarding date of birth as recorded in the service book or service roll of a Government servant should be entertained after a period of five years commencing from the da