The High Court cannot entertain a writ petition challenging the date of birth recorded in the service record on the basis of a matriculation certificate, as this is a question of fact which cannot be gone into under writ jurisdiction.

( 1 ) DURING the pendency of the appeal, the appellant-employee died and his heirs and legal representatives were brought on record. This is an appeal directed against the judgment, dated March 19, 1981, passed by the learned single Judge in C. R. No. 9873 (W) of 1978, whereby the learned single Judge dismissed the writ petition holding that whether the age given in the matriculation certificate is the correct date of birth or given in service record, are all questions of fact which this Court under Article 226 of the Constitution would not inquire.

( 2 ) BRIEF facts which are necessary for disposal of this appeal are that the petitioner-appellant retired from service of Allahabad Bank in December 1978 on attaining the age of superannuation after having been given two extensions of one year each. The writ-petitioner filed the present petition for a direction to the bank to correct his date of birth in service record in conformity with the matriculation certificate. The affidavit-in-opposition filed by the respondent bank pointed out that the petitioner's date of birth has been recorded while he entered the bank's service and that all the dates were filed in by the petitioner himself. Therefore, whatever date of birth had been recorded in the service record shall govern the service of the petitioner and subsequent application filed by him for correction of date of birth at the fag end of the service career cannot be entertained. Learned single Judge dismissed the writ petition holding that these are disputed questions of fact and that cannot be gone into under writ jurisdiction.

( 3 ) WE have heard the learned counsel for the parties. It is an admitted fact that the petitioner while entering into service gave his date of birth as January 1, 1918. Since the entries were made in his own hand writing and he served the bank with those entries and did not wake up to correct that date of birth till he attained the age of superannuation, therefore, now he cannot be permitted to turn back at the fag end of his career to challenge the entry in his service record of the date of birth. The view taken by the learned single Judge appears to be correct and there is no ground to interfere in the appeal.

( 4 ) THE appeal is hence dismissed. There will be no order as to costs. S. Sinha, J. Although I agree with the judgment and order pronounced by Hon'ble the Chief Justice, I would like to add a few words of mine.

( 5 ) THE appellant herein admittedly of the basis of the entries made in his service record was to superannuate in 1976. He accepted the said fact and obtained an order of extension of service for one year. He again obtained the second extension whereafter only he filed the writ application.

( 6 ) THE right to get the date of birth corrected either on the basis of matriculation certificate or otherwise is not a legal right far less a constitutional right.

( 7 ) EVEN if such a right was a legal one the same could be waived and in fact has been waived as the same was not in public interest. See: graphite India Ltd. and Anr. v. Durgapur Projects Ltd. and Ors.

( 8 ) FURTHERMORE, the appellant filed the writ application at the fag end of his career on the basis of a matriculation certificate. The employer was not bound to correct his date of birth on the basis thereof as has been held by a Division Bench of this Court in Calcutta Port Trust and Ors. v. Ajit Kumar Deb 1996 L. and I. C. 167.

( 9 ) THIS aspect of the matter has also been considered by this Court in Chittaranjan Das v. Durgapur Project Ltd. and Ors. , (1996-III-LLJ (Suppl)-188) (Cal) and in Babu Ram Pandey v. Mining and Allied Machinery Corporation and Ors. (1997-III-LLJ (Suppl)-1295) (Cal ).

( 10 ) YET again in Pratul Kumar Mukherjee v. Steel Authority of India and Ors. (1996-II-LLJ-869) (Cal), upon taking into consideration a large number of decisions including the decision of Deputy Commissioner of Police Special Branch and Ors. v. Bhupesh C