ORAL JUDGMENT

By way of this petition under Article 226 of the Constitution of India, the petitioner who was at the relevant time working in the Gujarat Electricity Board, has prayed for an appropriate writ, direction and/or order quashing and setting aside the order passed by the respondent Board rejecting the request of the petitioner to correct his date of birth from 1st December 1938 to 11th February 1940. It is also further prayed to direct the respondent to correct the date of birth of the petitioner from 1st December 1938 to 11th February 1940 as per the circulars dated 20th June 1986 and 18th February 1974 (Annexures A and B), relying upon certificate issued by the Gondal Nagar Palika based upon the Births and Deaths Register maintained under the provisions of the Registration of Births and Deaths Act, 1969 (for short “the Act”). It is also further prayed to quash and set aside the circular dated 12th May 1989 (Annexure H to the petition) by which it has been decided and provided that for satisfactory proof of the date of birth will mean the date of birth as recorded in the SSC or equivalent examination in case of those who have passed that examination and date of birth as recorded in school leaving certificate in case of those who have not passed S.S.C.E. or equivalent examination. It is also further prayed for a declaration that the petitioner continues in service until 20th February 1998.

2. Facts leading to the petition are that the petitioner was serving in the respondent-Electricity Board, his actual date of birth as per the record of the Nagar Palika was 11-2-1940, however, by mistake his date of birth was recorded as 1-12-1938 in the service record on the basis of the school leaving certificate. That in fact, his correct date of birth even recorded in the Births and Deaths Register maintained by the Gondal Nagar Palika maintained under the provisions of the Act was 11- 2-1940 and therefore, the petitioner submitted an appropriate application dated 13-1-1987 for necessary correction in the birth date in the service record of the Board as 11-2-1940 instead of 1-12-1938, relying upon regulation 18 of the Gujarat Electricity Board Service Regulations. It is also further submitted that as per the circular dated 20th June, 1986 the extracts of Birth and Death Registration was required to be accepted as correct and final for all purposes including admission into the Government service. It is submitted that the application of the petitioner was forwarded by the Superintending Engineer (O & M), Bhavnagar to the Secretary, GEB on 21- 1-1987. It is submitted that all the necessary documents were submitted to the executive Engineer. However, by communication dated 17-1-1990 relying upon the circular dated 22-5-1989, the respondent Board refused to correct the birth date and rejected the application of the petitioner. It is the case on behalf of the petitioner that subsequently the petitioner has submitted an appeal on 14-2-1990. However, the date of birth of the petitioner was not corrected in the service record and therefore, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India for the aforesaid relief.

The petitioner has also challenged the circular dated 22-5-1989.

3. Shri SP Majmudar, learned advocate appearing on behalf of the petitioner has made following submissions;

1. That the circular dated 22-5-1989 should not have been made applicable retrospectively and the application of the petitioner dated 21-1-1987 ought not to have been rejected relying upon subsequent circular.

2. That other employees, who have submitted their applications for correction/change of birth date in the service record came to be considered on the basis of the circular dated 20th June 1986 and therefore, the action of the respondent is discriminatory and violative under Article 226 of the Constitution of India.

3. The circular dated 22-5-1989 issued by the GEB deciding to only consider t