Disputed questions of fact regarding date of birth should be decided in a civil proceeding with evidence from both oral and documentary sources.

Navin Sinha and Dinesh Kr.Singh JJ.

1. Heard learned counsel for the appellant and learned counsel for the State.

2. The original petitioner Kali Choudhary was deceased on 16.4.2002 during the pendency of the appeal and was substituted by his son Akhileshwar Choudhary.

3. The controversy concerns the date of birth of Shri Kali Choudhary who was appointed on 1.8.1969 as a helper originally in the Tenughat River Valley Project. He claims to have discovered an error in his date of birth recorded in the service book when the gradation list of Class-4 post in the Madhubani Collectorate at Bisfi, where he was then posted, was published on 13.9.1979 showing his date of birth as 1.8.1943. His contention was that his correct date of birth is 15.7.1951 according to the School Leaving Certificate dated 17.2.1962, and his date of superannuation in accordance with the same was 31.7.2009. Relying upon a Transfer Certificate No. 41 dated 2.1.1958 by the Headmaster, Basic School, Lakhanpur the respondents fixed his date of birth as 1.8.1943. Consequently, he was made to superannuate on 31.7.1991 giving rise to the writ application.

4. The impugned judgment noticed that the counter affidavit specifically stated. that Transfer Certificate No. 41 dated 2.1.1958 was furnished by Shri Kali Choudhary himself. No rejoinder to the counter affidavit was filed by Shri Choudhary leading the Court to hold that he cannot escape from the contents of the certificate submitted by him though a feeble attempt was made to disown it. It was held that he had filed a belated application for correction of his date of birth seven days prior to his superannuation as determined by the authorities.

5. Learned counsel for the appellant sought to persuade this Court that his date of birth entered in the service book at the time of entry into service was 15.7.1951, based on his school leaving certificate dated 17.2.1962. Before correcting the same to read as 1.8.1943 the petitioner was required to be given an opportunity to show cause why the correction be not made. The limitations of time which apply to Shri Kali Choudhary for making an application for correction of the date of birth shall equally apply to the respondents. They cannot be permitted to correct the same belatedly on 13.9.1992. The submission therefore was with regard to an error in the decision making process to change the date of birth done unilaterally to the prejudice to the appellant. It has additionally been urged that the appellate court had directed the State to produce the representation submitted by Shri Kali Choudhary alongwith the transfer certificate. That has not been produced.

6. We have considered the factual aspects of the matter. That the respondents may not have produced his representation before us does not appear very crucial to the decision of the case as we are satisfied that the writ petition itself raises serious disputed questions of facts with regard to the date of birth based upon the documents being furnished in support of the same which cannot be agitated in a writ petition.

7. The counter affidavit in the writ petition states that in the service book no date of birth of the petitioner was mentioned, but merely that his age was mentioned as 26 years with the endorsement within brackets that it was being recorded as per his declaration. Below that 31.12.1957 was mentioned in a different ink and different handwriting. If that was not enough to create factual controversies, if the petitioner had his school leaving certificate dated 17.2.1962 showing his date of birth as 15.7.1951 available with him when he came to be appointed on 1.8.1969, it is for him to answer why the specific date of birth was not incorporated in the service book and in its place the age 26 years was recorded. The submission that it was produced at the time of entry into service does not appeal to us as it becomes a disputed question of fact itself when there shall be a presumption of the correctness o