JUDGMENT 1. - Bhura Singh (respondent plaintiff), who was an employee of the Rajasthan State Electricity Board (for short, "Board") (appellants defendants) instituted a civil suit for declaration, challenging his retirement from services of the Board w.e.f. 30.9.1988 on the ground inter-alia that he was initially recruited in services of the Board in the year 1953 as work-charged employee and later on confirmed as helper in the year 1964; at the time of his entry in the service, he had stated his age to be 18 years and in the year 1967 on again being asked as to what was his date of birth he stated his age to be 32 years. Since the date, month and year of the birth of the plaintiff were not known and there was no medical evidence or any other document certifying his exact date of birth, the appellant Board referred his case to the Medical Jurist SMS Medical College for ascertaining his correct age. After ascertaining medical opinion, the respondent Board (sic plaintiff ?) was issued a certificate by the Medical Jurist of SMS Medical College certifying his age to be 37 years in 1967. On the basis of such medical opinion the Board entered his date of birth in the service book as 9.9.1930 as his date of birth. As he would be completing his age of 58 years on the basis of date of birth i.e. 9.9.1930, in September, 1988, consequently the respondent was retired from services of the Board w.e.f. 30.9.1988 on attaining age of superannuation. The appellant on being issued notice filed its written statement, wherein it was pleaded inter-alia that the plaintiff's averment that in the year 1967 he attained the age of 32 years, was absolutely incorrect. It was further contended by the appellant Board that since there was no positive and direct evidence on record with regard to the actual date of birth of the respondent plaintiff only proper and logical course for the Board was to refer his case for medical opinion and accordingly the appellant was rightly referred to the Medical Jurist SMS Medical Hospital to ascertain his age. The medical jurist after having examined the respondent ascertained his age to be 37 years as on 9.9.1967. Accordingly the entry to that effect was made in his service record. The medical jurist after having examined the respondent ascertained his age to be 37 years as on 9.9.1967. Accordingly the entry to that effect was made in his service record. It was also contended that the plaintiff had full knowledge of the fact that his age was certified as 37 years by the Medical jurist w.e.f. 9.9.67 and he kept quiet about it after a period of full two decades and he never challenged the correctness of the same. It was only when he was on the verge of the retirement as on 30.9.1988, the respondent plaintiff challenged his date of birth notwithstanding this even as on the date of his joining service in the Board in the year 1964, he did not place any evidence on record with regard to his date of birth. It was further contended on behalf of the Board that it would be absolutely incorrect to say that as in the year 1967 the plaintiff had indicated his age as 32 years and for which also, there was no evidence on record and consequently the appellant Board had rightly referred his case to the Medical Jurist SMS Medical College Jaipur to ascertain his age which was certified as 37 years as on 9.9.1967 on the basis of which entry was made in his service book. On the basis of the pleadings of the parties, the learned trial Court framed following issues : (1) Whether the order dated 30.9.1988 whereby the plaintiff was retired from the services of the Board is illegal, inconsequential, non-est and whether the plaintiff was entitled to continue in services of the Board after 30.9.1988, as was so pleaded by him ? (2) Whether the plaintiff had wrongly stated his age 18 years in 1953 and 32 years at the time of his fixation in the year 1964 ? (3) Whether the defendant Board was within its rights to make ratification in date of birth as 30.9.1935 of the plaintiff in his service book ? (4) Whether the suit is barred by limitation ? (5) Relief ? 2. In support of his case, the plaintiff examined himself as PW-1 and did not place any documentary evidence on record which could be relied upon as substantial evidence. In defence, the Board examined D.B. Koshiva XEN as DW1 and Shankarlal Gupta SE as DW2. (4) Whether the suit is barred by limitation ? (5) Relief ? 2. In support of his case, the plaintiff examined himself as PW-1 and did not place any documentary evidence on record which could be relied upon as substantial evidence. In defence, the Board examined D.B. Koshiva XEN as DW1 and Shankarlal Gupta SE as DW2. After hearing the learned counsel for the parties and on the basis of the evidence of record, the learned trial Court recorded findings thus. From perusal of the judgment of the learned trial Court it is apparent that the documents which were exhibited in evidence on behalf of the plaintiff consist of service book Ex.1, from a perusal of which it is apparent that in Col. 3 his date of birth is indicated as 9.9.1930 i.e. 37 years as on 9.9.1967 as per certificate of the Medical Jurist. The learned trial Court has also recorded a positive finding to the effect that in examination-in-chief the plaintiff had not placed any evidence to the contrary on record which would have established his date of birth as 1.9.1935. In his cross examination he had also admitted that he had not taken any steps to verify his date of birth from the "Jaga" (person who keeps record of villagers pertaining to the date of birth and death). Though the plaintiff as on 12.7.1978 when the suit was filed had simply placed on record xerox copy of the certificate issued by one Bhagwan Sahai which too was not proved by producing its respective original and hence was not exhibited nor could be made admissible in evidence. Hence in absence of any such reliable evidence to the contrary it could not be assumed that the plaintiff was entitled to continue in services of the Board till 30.9.1993 nor he had any legal right to do so as to establish his case as to the date of birth of the year 1935 and consequently he was rightly retired from services of the Board on attaining the age of superannuation on 30.9.1988. Thus, issue No. 1 was decided against the plaintiff and in favour of the defendant Board. 3. Thus, issue No. 1 was decided against the plaintiff and in favour of the defendant Board. 3. As regards issue No. 2 it was held by the learned trial Court that since the plaintiff had himself admitted that when he was examined by the medical jurist who had certified his age 37 years on the basis of which the entry was made in his service book which he did not challenge till his retirement, consequently it was not open to the plaintiff to challenge the same at much belated stage i.e. when he had already retired from services of the appellant Board w.e.f. 30.9.1988. Therefore, issue No. 2 was also decided against the plaintiff and in view of the findings on issue Nos. 1 & 2, the learned trial Court dismissed the plaintiff's suit, against which the plaintiff preferred an appeal before the first appellate court which reversed the findings of the learned trial Court leading to the filing of the present second appeal which is now being decided finally after hearing arguments advanced by the learned counsel for the parties at admission stage. 4. I have heard the learned counsel for the parties at length and considered their rival contentions as well as legal position on the subject, besides examined the findings recorded by both the courts below. 5. The first question which has to be examined and considered is as to whether it was open to the first appellate court to reverse well reasoned findings of the trial Court contrary to the evidence led by the parties on record particularly when there was no mis-appreciation of the evidence by the trial court which would have justified reversal of its findings by the first appellate court. 6. On the basis of the pleadings, the rival contentions advanced by them and the legal contention raised therein, the following questions of law which arise for determination of this Court in this second appeal briefly stated are formulated thus : (1) Whether it was open to the respondent-plaintiff to have challenged the entry regarding his date of birth as duly recorded by the appellant-RSEB for short "the Board" in his Service Book as on the date when he was just at the verge of his retirement on attaining the age of superannuation, particularly when he did not challenge the same throughout his career for over two decades ? (2) Whether the entry in the service book of an employee duly made by the competent authority on the basis of the evidence of expert opinion i.e. the Medical Jurist in the instant case by way of secondary evidence, when the documentary evidence regarding the date of birth is not available, is it open to the petitioner to challenge the same on the question of its admissibility as against the intrinsic opinion of a witness known as 'Jaga' who is a Record Keeper in a village maintaining a register of dates of births and deaths of villagers and whether the medical opinion of an expert should have been discarded by the Appellate Court as against that of Jaga who is not an expert ? (3) Whether it was open to the First Appellate Court to have reversed the well reasoned finding of the trial Court based on the opinion of the evidence of the medical jurist duly certifying the age of the petitioner on the basis of which he was made to retire on attaining the age of superannuation and once having accepted the same as true and correct and which the petitioner did not challenge till he retired on attaining the age of superannuation, when just on the verge of his retirement he raised a dispute to that effect by filing a declaratory suit in the Civil Court seeking declaration contrary to the medical opinion? (4) Whether evidence of Jaga should have been accepted and relied upon by the First Appellate Court contrary to that of a medical expert as relied upon by the trial Court ? (5) What is the effect of delay in seeking correction of date of birth and whether belated claim can be entertained in the manner as has been done by the First Appellate Court ? (6) If the rules postulate the time limit to move an application for seeking correction in the date of birth, what wee those sparing reasons for appellant to have kept silent throughout and thereafter having moved an application belatedly after the prescribed period was over ? 7. (6) If the rules postulate the time limit to move an application for seeking correction in the date of birth, what wee those sparing reasons for appellant to have kept silent throughout and thereafter having moved an application belatedly after the prescribed period was over ? 7. On 14.9.1998 when the judgment was reserved, the appellant- Board was directed to place on record by way of an additional affidavit the relevant extracts from the service book of the respondent indicating the total amount which has already been released by the Board in favour of the respondent up to 30.9.1993 on account of Gratuity, Provident Fund and Salary dues etc. In compliance of the same, the Board has placed on the record of this Court the additional affidavit stating the above facts through its Personnel Officer (JCC) wherein, an entry has been made with regard to the date of birth of the appellant on the basis of the opinion of the medical jurist who deposed to the effect that in the present case, the respondent-workman raised a dispute with regard to his date of birth without any proof or any documentary evidence in his possession. When on number of occasions he was called upon to submit the documentary evidence which he failed to do so, he was referred for medical opinion at his own request. On the basis of the medical examination and opinion of medical jurist, the petitioner was assessed as 37 years of age as on 9.9.1967. Consequently, treating him to be 37 years in 1967, his date of birth was fixed as 9.9.1930 and entry to this effect was also made in his Service Book which was duly endorsed by the appellant-Board and this fact has been duly verified from perusal of the service book which was produced by the Board during the course of hearing. It has been contended on behalf of the Board that the date of birth was also mentioned in seniority list issued by the Board subsequently while the respondent-workman never raised any objection with regard to the same. It was further deposed by the deponent (Personnel Officer of the Board) that before introducing 9.9.1930 as his date of birth on the basis of the medical examination, 24.4.1918 was written as the date of birth of the respondent on account of which he required to be retired in 1976 itself. It was further deposed by the deponent (Personnel Officer of the Board) that before introducing 9.9.1930 as his date of birth on the basis of the medical examination, 24.4.1918 was written as the date of birth of the respondent on account of which he required to be retired in 1976 itself. The aforesaid amendment in the date of birth contrarily has increased his service period by 12 years. Consequently, the respondent retired on the basis of the medical opinion on 30.9.1988. Deponent further deposed that as on the date of superannuation the respondent was entitled to following amounts towards CPF and Gratuity: (a) CPF Rs. 1,10,521/- (b) Gratuity Rs. 35,920/- Rs. 1,46,441/- On the contrary the respondent-workman on the basis of the impugned-judgment passed by this Court, has received the following amount: Salary from 1.10.88 to 30.9.93 (during Rs. 1,98,327 (through this period the respondent never Cheque No. dated 16.10.96) worked) Earned Leave Rs. 10,935/- CPF Rs. 1,10,521/- Total : Rs. 3,19,783/ 8. Thus, according to the Board, the respondent-workman against his claim of Rs. 1,46,441/- has received Rs. 3,19,783/- i.e. Rs. 1,73,342/- has been drawn by the respondent-workman in excess which he supposed to refund to the Board. 9. Since the respondent-workman received the aforesaid amount in excess, the Board has sought a direction from this Court for refund of the excess amount of Rs. 1,73,342/-. 10. In support of his contentions, Mr. Ajay Rastogi, learned counsel for the petitioner during the course of hearing has relied upon the following decisions : (1) Effect of delay in seeking correction of date of birth. Belated claim cannot be entertained : (i) 1995 (3) SCC 17 (paras 4 to 9) : Union of India and Ors. Vs. Kantilal Hematram Pandya. ii) 1995(4) SCC 172 (para 10) : Burn Standard Co. Ltd. & Ors. Vs. Dinabandhu Majumdar and anr. (iii) 1996 (7) SCC 421 : Union of India vs. Ram Suia Sharma. (2) If Rules postulate time limit to move application for seeking correction in the date of birth, then any application moved after prescribed period is not maintainable : (i) 1994 Supp. (1) SCC 155 (paras 8 & 9) : Secretary and Commissioner, Home Department and Ors. Vs. R. Kirubakaran. (ii) 1993(2) SCC 162 (para 15 & 16) : Union of India vs. Harnam Singh. (3) Petitioner himself created confusion. No admissible evidence adduced in conformity with relevant Rules. (1) SCC 155 (paras 8 & 9) : Secretary and Commissioner, Home Department and Ors. Vs. R. Kirubakaran. (ii) 1993(2) SCC 162 (para 15 & 16) : Union of India vs. Harnam Singh. (3) Petitioner himself created confusion. No admissible evidence adduced in conformity with relevant Rules. No case for correction is made out : (i) 1997 (3) WLC 688 (paras 11 to 14) : Mohan Lal Punia (Verma) Vs. Rajasthan Electricity Board & Ors. In the matter of Union of India and Ors. Vs. Kantilal Hematram Pandya (supra) the question which arose for consideration of the Apex Court was as to whether it was permissible for the respondent to rely upon any alteration made in his service book regarding his date of birth. It was on an employee of the Railway Department who joined services of the railways in 1955 and in various documents in 1960 and 1980 the same date of birth has been recorded as in his service book. He did not avail of the opportunity given in 1972 by the Railways for seeking correction of his date of birth by 31.7.1973 and made representation for alteration of the recorded date of birth and only in 1985 and 1987 without adducing any reliable evidence and without explaining the inordinate delay on his part, he applied for alteration of his date of birth. 11. It was contended on behalf of the Union of India before the Apex Court that date of birth which has been recorded in the service book of the respondent was 6.9.1930 and till the eve of his retirement, the respondent took no steps to have it altered from the service book even through, opportunity was given to him, hence, the learned Tribunal whose impugned judgment was under challenge should not have permitted alteration of the date of birth of the appellant which had been claimed after inordinate and unexplained delay of more than quarter of a century. The appellant has also relied upon the judgment of the Apex Court in the matter of Union of India vs. Harnam Singh : 1993(2) SCC 162 wherein, the Apex Court observed, as under : "A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age." 12. It has been contended by the learned counsel for the appellant that the belated claim of the respondent for seeking correction for the date of birth would not be permissible since no explanation, much less satisfactory explanation had been furnished by the respondent in this regard. The approach adopted by the Tribunal was consequently held to be erroneous and the directions issued by it were held not sustainable. 13. In the matter of Burn Standard Co. Ltd. & Ors. Vs. Dinabandhu Majumdar and anr. (supra) , it was observed by the Apex, as under: "The extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant for enabling the employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly-found mateial. The fact that an employee of Government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee should be a sufficient reason for the High court, not to entertain such applications on grounds of acquiescence, undue delay and ]aches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application. Therefore, there should be no hesitation in holding that ordinarily High Court should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth enterted in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement". 14. With regard to the service benefit, it was held by the Apex Court that treatment of the post-superannuation period of service whereby the employee be continued beyond the date of superannuation in service of the concerned department would not entitle the said employee to any service benefit other than the salary drawn and admissible according to rules. 15. In the matter of Union of India vs. Ram Suia Sharma (supra) the question which had been raised before the Apex Court was as regards the effect of delay in seeking claim for correction of the recorded date of birth made 25 long back after joining services. While granting leave to appeal to the Union of India, it was held by the Apex Court that controversy raised in the said appeal was no longer res integra. It was further observed by the Apex Court that it was not open to the Court or Tribunal to entertain the claim seeking correction of the date of birth in the service records at the belated stage. The direction given by the Tribunal was held not sustainable. 16. In the matter of Secretary and Commissioner, Home Department and Ors. Vs. It was further observed by the Apex Court that it was not open to the Court or Tribunal to entertain the claim seeking correction of the date of birth in the service records at the belated stage. The direction given by the Tribunal was held not sustainable. 16. In the matter of Secretary and Commissioner, Home Department and Ors. Vs. R. Kirubakaran (supra) it was held by the Apex Court, as under:- "An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. Any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years below him for their respective promotions are affected in this process. This is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book". 17. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book". 17. In the matter of Union of India vs. Harnam Singh (supra) , the Apex Court held, as under: "The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. A publication servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him". 18. In the matter of Mohan Lal Punia (Verma) Vs. Rajasthan Electricity Board & Ors. (supra) , the similar controversy had arisen before this Court with regard to an employee of the RSEB. It was observed by this Court that it was not open to the petitioner to approach this Court by way of writ petition under Article 226 of the Constitution of India since it is not the province of this Court to examine disputed facts which obviously require proper adjudication by way of evidence hence, there was obvious fallacy in the arguments of the petitioner who had sought to create deliberate confusion in absence of any cogent and authentic evidence by seeking extension in his services beyond the age of superannuation to which he was not entitled under the rules. 19. I have examined the ratio of the aforesaid decisions and in my view, the ratio of the same is fully attracted to the instant case. 20. Mr. Arun Sharma, learned counsel for the respondent-workman contended during the course of hearing that the appellant-Board has argued the matter on the basis of Section 74 of the Indian Evidence Act, 1872 but has not considered the other relevant Section 32 of the said Act in support of his contention. 21. 20. Mr. Arun Sharma, learned counsel for the respondent-workman contended during the course of hearing that the appellant-Board has argued the matter on the basis of Section 74 of the Indian Evidence Act, 1872 but has not considered the other relevant Section 32 of the said Act in support of his contention. 21. In support of his contention, Mr. Arun Sharma, learned counsel for the respondent has placed reliance on the following decisions: (1) Mt. Ratni vs. Harwant Singh : AIR 1949 (East Punjab) 158 . (2) Sheo Shanker v. Ram Dei : AIR 1935 (Oudh) 231. (3) Nanikrao v. Devrao : AIR 1955 (Nagpur) 290. (4) Kartick Chandra v. Gossain Rudrananda GIR : AIR 1921 (Cal.) 482. (5) Umesh Chand v. State of Rajasthan : AIR 1982 (SC) 1057 . 22. I have examined the ratio of the aforesaid decision and in my view the ratio of the same is not attracted to the instant case. 23. The respondent has admittedly continued in services of the appellant-Board on the basis of the opinion of the medical jurist duly certifying his date of birth in the service book as 9.9.1930 on the basis of which he continued in the service of the Board till 30.9.1988 when he retired from the services of the Board on attaining the age of superannuation i.e. 58 years. His claim with regard to CPF, Gratuity and Leave Encasement etc. was duly settled by the Board as on the date of superannuation and as per the averment made by the Board in its affidavit dated 18.9.1998 the respondent has received Rs. 3,19,783/- against his actual claim of Rs. 1,46,441/- on account of CPF and Gratuity and as per the averment made by the Board through its affidavit, the respondent-workman has received an excess amount of Rs. 1,73,342/-. 24. Before parting with this case, I would like to observe that the appellant-Board has sought a direction from this Court for realising the excess amount of Rs. 1,73,342/- which has been paid to the respondent-workman against his claim of Rs. 1,46,441/- on account of CPF, Gratuity, Leave Encasement and Salary and other retiral benefits. 25. If any payment has been made in excess to the respondent- workman as so contended, the appellant-Board shall be entitled to recover and realise the same from the respondent-workman in accordance with law. 26. 1,46,441/- on account of CPF, Gratuity, Leave Encasement and Salary and other retiral benefits. 25. If any payment has been made in excess to the respondent- workman as so contended, the appellant-Board shall be entitled to recover and realise the same from the respondent-workman in accordance with law. 26. As a result of above discussion, this second appeal is allowed. Consequently, the judgment & decree of the First Appellate Court i.e. Additional District & Sessions Judge No. 6, Jaipur City, Jaipur dated 30.1.1996 passed in Civil Regular Appeal No. 109/94 reversing the judgment & decree of Additional Civil Judge (Junior Division) No. 2, Jaipur City, Jaipur dated 16.7.1994 passed in Civil Suit No. 1020/88 is quashed and set-aside.There will be no order as to costs.Appeal Allowed. *******