Gujarat High Court
Bhanuben Harilal Trivedi vs State Of Gujarat Thro The Secretary on 8 October, 2025
NEUTRAL CITATION
C/SCA/17657/2011 ORDER DATED: 08/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17657 of 2011
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BHANUBEN HARILAL TRIVEDI
Versus
STATE OF GUJARAT THRO THE SECRETARY & ORS.
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Appearance:
VENU H NANAVATY(7458) for the Petitioner(s) No. 1
MS FORUM J SHAH, AGP for the Respondent(s) No. 1
MS ASMITA V PATEL(5356) for the Respondent(s) No. 3
RULE SERVED for the Respondent(s) No. 2,4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/10/2025
ORAL ORDER
1. This petition is filed for the following prayers:
"7(A) Allow this petition (B) Quash and set aside the impugned order dated 30.7.2011 passed by respondent no.3, communicated to the petitioner on 9.9.2011 (Annexure A), insofar as it alters the date of birth of the petitioner, as being arbitrary, illegal, unjust, improper, highhanded and contrary to the principles of natural justice and violative of Article 14 and 16 of the Constitution of India.
(C) Declare that the date of birth of the petitioner is 20.10.1949 and the respondent authorities have no right or authority to change the date of birth of the petitioner. (D) Declare that the petitioner is entitled to receive pension and other retirement benefits on the basis of her date of Page 1 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined birth being 20.10.1949, and be further pleased to direct the respondents to recalculate the pension and other retirement benefits payable to the petitioner and pay arrears to the petitioner forthwith, in the interest of justice. (E) Declare that the petitioner is entitled to get interest from the respondents on the delayed payment of pension and other retirement benefits, for the period from 1.2.2007 till the date of actual payment, at such rate of interest as may be deemed fit, just and proper by this Hon'ble Court. (E) Direct the respondent authorities to treat the date of birth of the petitioner as 20.10.1949 and pay to the petitioner pension and other retirement benefits considering the date of birth of the petitioner as 20.10.1949. INTERIM RELIEF (A) Pending admission hearing and till final disposal of the present petition, Your Lordship may be pleased to grant stay of operation, implementation and execution of the impugned order dated 30.7.2011 passed by Education Department, so far as it relates to confirming the alteration made by respondent no.3 in the date of birth of the petitioner (Annexure A), and be further pleased to direct the respondent authorities re-calculate the amount of pension and retirement benefits by considering the date of birth of the petitioner as 20.10.1949 and pay the arrears to the petitioner forthwith.
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NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined
2. The brief facts leading to filing of this petition are such that the petitioner entered into Government Service as untrained Teacher w.e.f. 14.12.1971 at Nava Kanya Shala, Padana, Dist.Jamnagar; The date of birth of the petitioner was recorded in the service book on 20.10.1949 on the basis of the SSC certificate; the petitioner's service was confirmed by order dated 8.8.1973; the petitioner was transferred from Jamnagar District Panchayat run school to Kasturba Gam Shala run by Rajkot District Panchayat by order dated 17.6.1977 by verifying the service of the petitioner; the petitioner was transferred to a school run by Rajkot Nagar Prathmic Shikshan Samiti, the respondent no.3 herein, where the petitioner reported for duty on 7.1.1986 at Shala no.13; the petitioner retired from service voluntarily on 31.1.2007 after her request for retiring voluntarily was accepted by the authority; However, except the amount of provident fund, no retirement benefits of the petitioner was paid and the petitioner has not been paid pension since then. On 1.2.2007, the petitioner's pension papers were forwarded to the concerned authority; on 11.7.2008.
3. The respondent no.4, by communication dated 11.7.2008, stated that the petitioner should produce proof of her date of birth in the form of an affidavit confirmed before the First Class Magistrate and only thereafter her pension Page 3 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined papers will be finalized. By letter dated 25.7.2008, the petitioner pointed out that a true copy of the SSC certificate was produced before the competent authority on 23.7.2008 and reiterated that it is not open for the authorities to raise any doubt about the veracity of date of birth of the petitioner after more than 35 years; by communication dated 19.9.2008, the respondent no.4 again reiterated that the petitioner has not produced the proof with regard to her date of birth; the petitioner once again by letter dated 2.12.2008, requested the respondent authority that her pension papers ought to be finalized particularly when even the office of the Assistant Commissioner of Local Funds by letter dated 20.9.2008 directed that pension papers of the petitioner ought to be finalized.
4. It is further stated that by communication dated th 20/26 February, 2009, the Administrative Officer of respondent no.3 issued notice to the petitioner inter alia stating that the date of birth of the petitioner is 20.10.1947 and that said conclusion has been reached on the basis of the revised certificate obtained from the office of Higher Secondary Education Board and therefore the petitioner was called upon to explain as to why her date of birth should not be changed to 20.10.1947 from 20.10.1949; the petitioner submitted her reply through advocate on 12.3.2009 reiterating Page 4 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined that her date of birth should be taken as 20.10.1949 as recorded in the service book at the time of her joining services; that on 13.5.2009, the Administrative Officer of respondent no.3, by communication dated 13.5.2009, unilaterally changed the date of birth of the petitioner from 20.10.1949 to 20.10.1947. This action of the respondent authority will have adverse economical consequences of the petitioner and the pensionary benefits payable to the petitioner will also be adversely affected. The petitioner preferred Special Civil Application No.8233 of 2009 wherein this Court issued directions to the respondents to decide the issue within one month from the date of petitioner submitting the documents. On 13.5.2010, the respondent no.3 decided the issue vide order dated 13.5.2010, confirming that the date of birth of the petitioner as 30.10.1947 and held that the petitioner has worked for more period of one year and two months and hence a sum of Rs.2,77,835/- is to be recovered from the petitioner from the gratuity and commuted pension payable to the petitioner. Being aggrieved by the said order dated 13.5.2010 passed by respondent no.3, the petitioner made representation to the Secretary, Education Department. On 30.7.2011, the Education Department passed order confirming the date of birth of the petitioner as sought to be altered by the Respondent no.3 but directing that no recovery should be made from the petitioner. The said order Page 5 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined of Education Department was communicated to the petitioner on 9.9.2011 pursuant to the application made by the petitioner under the RTI Act, 2005; pension and other retirement benefits were also paid to the petitioner only in August, 2011 though she had retired from service in January, 2007. Being aggrieved by the impugned order dated 30.7.2011, the petitioner has been constrained to approach this Court by way of present writ petition.
5. Heard learned advocates for the parties. 5.1 Learned advocate Ms.Nanavaty for the petitioner has submitted that the certificates were verified by the competent officers when she was transferred to different schools. The petitioner has applied for voluntary retirement after completion of service of more than 20 years. At that point of time, the respondent authority has asked for some more documents which is provided where there is some difference of the dates, the date of birth was considered as 20.10.1947 and the authorities have given the benefit of retirement dues by considering the said date, however, no recovery is made towards the salary which is paid for the period for which the petitioner has worked. Aggrieved by this, she has submitted that the present petition is filed for the prayers, as at the fag end of service, the change in date of Page 6 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined birth is made by the authorities that too, after the petitioner has filed papers for voluntary retirement. She submitted that in view of Rule 40 of the Gujarat Civil Service Rules, 2002, any change in service book, more particularly, regarding the birth date should be made within five years. Therefore, she has submitted that in view of the settled position of law and considering Rule 40 of GCSR, the impugned communication/order is required to be set aside. 5.2 Learned advocate Ms.Patel for respondent no.3 strongly objected to the same by submitting that the person who is producing fraudulent documents as mentioned in the affidavit-in-reply cannot be given any relief by this Court while exercising power under Article 226 of the Constitution of India. She has further submitted that it is always open for the respondent authorities to verify the documents before considering the aspect of voluntary retirement and at that point of time, it came to the notice of the authority concerned that actually the birth date is 20.10.1947 and not 20.10.1949 which is mentioned by the petitioner. She has further submitted that even the birth certificate issued by the competent authority is subsequent to the retirement and it does not speak of what basis the birth certificate is registered.
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NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined 5.3 Learned advocate Mr.Nanavaty at this stage has submitted that the birth certificate is registered pursuant to the order passed by the competent Court, and therefore it is now not open for the respondent authority to ignore the valid document like birth certificate.
5.4 Learned AGP has also submitted that appropriate order may be passed considering the material available on the record and considering the fact that there is serious dispute regarding the correct date of birth of the petitioner which is emerging from the different documents.
6. I have considered the rival submissions and also perused the material on record. The petitioner has entered into service in the year 1971 and thereafter confirmed in the year 1973. At that point of time, the documents were verified by the authority. Thereafter, she was transferred from Jamnagar District Panchayat run school to Kasturba Gam Shala run by Rajkot District Panchayat in the year 1977 and once again verification of documents had taken place, thereafter, the petitioner was transferred to a school run by Rajkot Nagar Prathmic Shikshan Samiti-the respondent no.3 herein and there also, the documents were verified and accordingly the details of the petitioner is recorded in the service book.
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7. Rule 40 of GCSR specified as under:
"40(g) requests made for alteration of date of birth should not be entertained after the preparation of the service book of the Government employees concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period, such request should not be entertained after the completion of five years' continuous service."
8. Considering the above Rule, any action for change in date of birth is required to be done within five years and that too, for a limited aspect for correcting any clerical mistake. In the present case, it transpires that at the fag end of service, the respondent authority is trying to rely on the correct and birth date on the basis of the subsequent verification of documents while considering the voluntary retirement application of the petitioner and raising objection on that basis is not permissible in the eye of law.
9. The Hon'ble Apex Court in catena of judgments held that normally such change of birth date on the fag end of service should not be considered. Moreover, considering the fact that there is no challenge to the birth date at any point of time by any authority, though at every stage, the Page 9 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined documents of the petitioner are verified and at the time when the petitioner entered into service, the birth date is registered on the basis of marksheet for SSC examination.
10. Considering all these aspects, I find that the impugned action of the authority to consider the birth date of the petitioner as 20.10.1947 instead of 20.10.1949 is improper, unjust and illegal and also violative of settled principles of law and required to be interfered with by exercising powers under Article 226 of the Constitution of India.
11. Accordingly, the petition is allowed with the following directions:
(1) The impugned order dated 30.7.2011 passed by respondent no.3, communicated to the petitioner on 9.9.2011 (Annexure A) is quashed and set aside.
(2) The date of birth of the petitioner is to be considered as 20.10.1949.
(3) As the petitioner is entitled to receive pension and other retirement benefits on the basis of her date of birth being 20.10.1949, the respondents are directed to recalculate the pension and other retirement benefits payable to the petitioner and pay arrears to the petitioner forthwith. (4) The respondents authorities are directed to pay the Page 10 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025 NEUTRAL CITATION C/SCA/17657/2011 ORDER DATED: 08/10/2025 undefined interest @6% p.a. on the delayed payment of pension and other retirement benefits, for the period from 1.2.2007 till the date of actual payment.
(5) The respondents authorities are directed to complete the entire exercise within a period of six weeks from the date of receipt of this order.
Rule is made absolute accordingly. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 11 of 11 Uploaded by U. SRILATHA(HC00185) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:49:36 IST 2025