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
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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.
(B) xxxxx"
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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
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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
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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
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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
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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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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
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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
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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
