ORDER

1. Facts giving rise to this petition are that petitioner was born in former princely State of Travancore t now forming part of Kerala State). After graduation from Madras University in 1946 he was appointed as Income Tax Officer in princely State of Bastar on 11-3-47. In June 48 he was transferred to Surguja State. When these estates were merged in Union in 1949 the services of petitioner were also absorbed and by a Notification issued on 10-11-49 petitioner was appointed as Income Tax Officer Class 11. grade III, in the Income Tax Department of the Govt. of India. In 1950 the petitioner was posted at Jabalpur in State of Madhya Pradesh. While he was posted there the Income Tax Commissioner Madhya Pradesh and Bhopal sent two letters on 27th June and 7th Oct. 50 requiring the petitioner to furnish details regarding date of birth. educational qualification, departmental examination, last post held etc, in the letter dated 27th June it was mentioned that information is needed urgently where as in letter dated 7th Oct. petitioner was required to furnish it within two days. It is averred in writ petition that as the papers were not available with petitioner but the matter was urgent he furnished the information as required to the best of his memory. And in the proforma supplied to him the date of birth was disclosed as 22nd March 1103 (Malayalam era) corresponding to 9th Nov. 1926 of Christian era. The disclosure so made by petitioner was entered in his service record. Later on petitioner is stated to have visited his home town where he came across his school leaving certificate and then he came to know that disclosure made by him in pro forma was incorrect because his date of birth recorded in the certificate was 22nd August 1103 and not 22nd March 1103. Her thereafter checked the almanac in Malyalam and found that equivalent of 22nd August 1103 (Malyalam era) in Christian era was 4th April 1928. In this respect he obtained two certificates, also, from his senior officers. D.it as the proof was not conclusive he did not make any representation. In 1975 petitioner went to Trivendrum (Kerala) and he obtained certificate from Librarian, Trivendrum Public Library, which is a Government Library that 22nd March 1103 was equivalent to 8th Nov. 27 and thereafter he made a representation to Govt. of India for altering his date of birth in the service record as the mistake was clerical in nature. On 23/26th Nov. 77 this representation was rejected as the mistake was not clerical because the entry was made in service record due to disclosure made by petitioner himself. And such errors were not liable to he corrected in Rule 79 of General Financial Rules. It is the validity of this order which is under challenge.

2. Rule 79 reads as under :

"79. Date of Birth :- (1) Every person newly appointed to a service or a post under Government shall at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a Matriculation certificate, Municipal birth certificate and so on. If the exact date is not known an approximate date shall be given.

(2) The actual date or the assumed date determined under rule 80 shall be recorded in the history of service, service book, or any other record, that may he kept in respect of the Government servant's service under Government and. once recorded it cannot he altered except in the case of a clerical error, without the previous orders of a Department of the Central Government or an Administrator."

Note :- Head of Departments are authorised to exercise the powers delegated to a Department of the Central Govt. and an Administrator under rule 79 in the cases of non-gazetted Govt. servants under their control.

Government of India's decision :- Requests for alteration of date of birth shall not be entertained after the preparation of the service books of the Government servants concerned and in any event not later than the completion