Mohd. Ahmed Ansari, J.
1. This writ petition seeks Mandamus against the State Government to retire the petitioner in accordance with law after altering the petitioner's date of birth in his service register to 6-12-1904. At present the writ petitioner is 1st grade Municipal Commissioner of Eluru with a monthly salary of Rs. 420/- and clearness allowance of Rs. 70/-. He has been in service since 9-11-1934, which would be counted for purposes of his pension. On 16-12-1958 the respondent by G. O. No. 2623/LA had admitted all the Municipal Commissioners to the benefit of the provident fund pension scheme, and these employees would also be entitled to half pension if they put in service for 25 years or proportionate pension where the service be less.
The cause for filing the petition is that the respondent by G. O. (Ms) No. 27/LA dated 5-1-1959 had informed the petitioner that he was due to retire on 12-7-1959. This date of the superannuation had been calculated on the basis of the entry in the petitioner's service register concerning his date of birth. But he claims that on 11-4-1959 he went to Palcole and verified the date of his birth in the Office of the Sub Registrar, Palacole and found it to be 6-12-1904. Thereafter in April, 1959 he submitted a petition to the State Government requesting the alteration of the date to 6-12-1904 and to continue him in service till 6-12-1950, on which date the petitioner would he completing his acre of 55 years. The request has been rejected by G. O. (Ms) No. 1294/LA dated 16-5-1959. Thereafter he has come to this Court seeking Mandamus.
2. The grounds taken in the petition shortly put are that the authorities under Note to Rule 6 of the Subsidiary Rules under Rule 74(a) of the Fundamental Rules, are bound to amend the date of birth entered in the service book kept under orders of the Local Government, and this duty the writ petitioner has a right to enforce. Ho avers that the duty had not been discharged, because by the communication of 16-5-1959 he has been directed to establish his correct date of birth in accord with law. The aforesaid letter has further been challenged as discriminatory and viola-tive of Article 14; for the date of birth of one A. Venkataswamy in his service register has been corrected through G. O. (Ms) 1323/LA dated 31-5-1958. The two questions therefore that invite decision in this writ petition are; (i) whether the Government's action is discriminatory and (ii) whether there has been failure to perform any duty which can be enforced by issue of a writ of Mandamus.
3. The date of birth shown in the writ peti-tioner's service book is 13-7-1904, and this appears to have been given at the time of his admission in the elementary school. The date apparently continued in the relevant school record and crept in the S. S. L. G. register. Apparently the entry in the service register is based on the entry in the S. S. L. C. register. It is therefore clear that from 9-11-1934 till the date on which the writ petitioner asked the State for amendment of the entry in his service register, the date had been treated as correct. Indeed the case by the writ petitioner is that he himself did not know of the mistake till 11-4-1959. In these circumstances the complaint of the State having discriminated by refusing to make the amendment is not justified. I do not know the circumstances under winch the amendment in other cases has been made. But in this case the long silence of nearly 24 years does form the rational basis of refusing the writ petitioner's request. Even a single case may be treated as class without Article 14 being infringed, and therefore the first ground fails.
4. The counsel for the petitioner has relied on Ramamurthy v. Director of Public Instruction. Madras, 1943-2 Mad LJ 665: (AIR 1944 Mad 187) for the proposition that the duty to correct a mistake concerning the date of birth can be enforced by a writ of Mandamus. In that case the school authorities were directed to amend. I would be reluctant to issue Mandamus on the basis of the aforesaid authority; for its being issued depends upon the construction of the particular provision.
If the statute imposes a duty and the particular claimant has corresponding right to enforce, Mandamus would be issued. On the other hand where the particular provision only confers discretionary powers different considerations would arise. The duty, therefore, that Bell, J., enforced in the case relied on by the Counsel for the Writ Petitioner is not similar to what the writ petitioner seeks to enforce in this case. The counsel further relied on General Manager Southern Rly. v. Mohammed Yakub, : (1958)IILLJ324Mad .
There an entry in the service book has been modified without affording the particular employee an opportunity to meet the corrections. That decision, I am afraid, is no authority for the proposition that the provision as to correction in this case imposes a statutory obligation on the authority to correct. It would be useful at this stage to give the note relied on in this petition. This is part of the sub-rules framed under Rule 74(a) IV and runs as follows:
'Note: -- The date of birth entered in the service book can be altered, except in the case of a clerical error only under the orders of the Local Government. This power may be exercised in the case of non-Gazetted Government servants by heads of Departments and also by all Collectors of Dis-trict, Superintending Engineers, Chief Operative Engineer (Electricity), Chief Construction Engineer (Electricity), District and Sessions Judges and Deputy Inspector Generals of Police.'
It is common ground that the aforesaid fundamental rules were framed by the Secretary of State in Council under Section 96B of the Government of India Act, 1919 and were meant to regulate the conditions of service of all the civil services in India in regard to pay etc. Having regard to the use of the words 'at the pleasure of the Crown' in the main provision these rules are not mandatory. We have the pronouncement by the Supreme Court in State of Madhya Pradesh v. G. C. Mandawar, 1954 SCJ 503: (AIR 1.954 SC 493) that Rule 44 of the aforesaid Rules concerning the dearness allowance was not obligatory. There is also decision in A. Sambandhan v. Regional Traffic Superintendent, 1957-2 Mad LJ 541: (AIR 1958 Mad 243). Taking the note in its context, it is difficult to construe the word 'can' in the note as creating an obligation and not conferring mere power to amend the mistake.
It follows that this is a case where a powerhas been conferred and it is common ground thatMandamus would not lie to enforce the exercise ofa power or discretion. It is true that wrong exercise of discretion in certain circumstances justifyissue of Mandamus. But I am convinced that nosuch circumstances have been made out in thisparticular case. Therefore, this writ petition failsand is dismissed. I fix Rs. 75/- as the lawyer'sfee.