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2000 DIGILAW 1397 (RAJ)

Om Prakash Solanki v. State of Rajasthan

2000-11-27

A.R.LAKSHMANAN, RAJESH BALIA

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Honble LAKSHMANAN, CJ.–This writ petition was filed by the petitioner, a Judicial Officer in the Rajasthan Judicial Service, to make necessary correction in the date of birth of the petitioner from 10.4.1943 to 3.10.1944. Alternatively, it is prayed that the second respondent, Rajasthan High Court, be directed to reconsider and review the whole matter and allow the change in the date of birth and thereafter the same may be referred to the State Government with comments/recommendation for taking a final decision in the matter. (2). According to the petitioner he belongs to a rustic and illiterate family having meagre source of livelihood. His parents are illiterate. They were not conversant with the Rules and regulations. It is his further case that due to financial crisis the petitioners parents could not get the horoscope cast from an Astrologer at the time of petitioners birth or thereafter. The correct date of birth i.e. 3.10.1944 was recorded in petitioners primary, middle and secondary level school leaving certificates issued by the competent authorities. However as per service records in the Judiciary the date of birth of the petitioner has been entered as 10.4.1943. (3). The following is the further explanation for the incorrect date of birth entry: ``It is further relevant to mention here that after passing the Secondary Examination, which was conducted by the School Authorities and considered to be equivalent to Xth Class at the relevant time, petitioners father failed to get him admitted into the Higher Secondary Class well in time. Finding admission being closed to Higher Secondary Class, his father got petitioners examination Form filled-up for High School Examination, 1961 as a private candidate. Unfortunately, at the time of filling up this Examination Form, due to inadvertance, his date of birth was filled in as 10.04.1943 erroneously instead of his correct date of birth of 3.10.1944. This blunder resulted due to want of horoscope, copy of Transfer Certificate or any other relevant document/certificate readily available at the time of filling-up the High School Examination Form as a private candidate. It is in this fact-situation that a wrong date of birth was shown in the High School Examination Certificate, 1961; a true and exact copy of which is being submitted herewith and marked as Annexure 4. It is in this fact-situation that a wrong date of birth was shown in the High School Examination Certificate, 1961; a true and exact copy of which is being submitted herewith and marked as Annexure 4. It is submitted that he made an application for correction in his date of birth from 10.4.1943 to 3.10.1994 within the limitation prescribed under Rule 7(1) of the Rajasthan Service Rules, 1951 which provides that no claim and request for condonation, pay fixation, change in emoluments, correction in date of birth, change in service history etc. will be entertained by the Government unless such claims had been made three years prior to the due date of retirement. The petitioner made a representation dated 30.11.92. After a lapse of one year the petitioner received a letter dated 20.1.95 along with a copy of the report of the District and Sessions Judge, Pratapgarh directing the petitioner to submit his clarification on certain discrepancies/points raised in the report. In response to the said letter the petitioner submitted his clarification in detail vide his letter dated 15.3.1995. However, his representation was rejected without giving opportunity to the petitioner to plead and prove his case. The petitioner thereafter moved a review petition dated 17.1.98 with a prayer to reconsider and review the whole matter and allow the change in date of birth. The petitioner received a letter from the Registrar General dated 2.3.98 informing him that the application submitted by him had been filed. According to the petitioner there cannot be even an iota of suspicion that the claim of the petitioner is false and that the State Govt. is only the competent authority under the Rules for taking appropriate decision in the matter and the case of the petitioner has not been referred to forwarded to the State Government. (4). A reply to the writ petition was filed by the State of Rajasthan stating that the writ petition is not maintainable as it has not been preceded by service of a notice and hence the writ petition being pre-mature is liable to be dismissed. It is also submitted that the writ petition raises disputed questions of fact which cannot be gone into in a petition filed under Article 226 of the Constitution of India. It is also submitted that the writ petition raises disputed questions of fact which cannot be gone into in a petition filed under Article 226 of the Constitution of India. It is specifically stated that in the certificate of Secondary School Examination and Service Records the date of birth of the petitioner is shown as 10.4.1943 and it is only the correct date of birth of the petitioner. (5). A reply affidavit was also filed by the Registrar General of the High Court stating that the relevant document for the date of birth is High School Certificate and the contention made in the writ petition are disputed questions of fact and the same cannot be examined in the extra ordinary jurisdiction of this Court. A rejoinder to the reply by the Registrar of this Court was also filed. (6). We have heard the arguments of Shri K.K. Shah for the petitioner, Shri R.P. Dave for the High Court and Shri B.S. Bhati for the State of Rajasthan. (7). We have perused the entire pleadings and the annexures filed. In our opinion, it is no more res integra that the date of birth once recorded in the Service-Book cannot be sought to be changed and this position is more than clear from the provisions of Rule 8(2) (a) and 8(2) (b) of the Rajasthan Service Rules, 1951. Rule 8(2) (a) and 8(2)(b)(i) of the said Rules read as under:- ``8(2)(a) -In relation to a person already in the service of the Govt. on 1.1.79, the date of birth as recorded in the Service Book/Service Roll shall be accepted by the State Govt.as date of birth of such person irrespective of the basis or authority on which it was entered. The date of birth so recorded and accepted shall not be changed subsequently on the basis of High Secondary/Higher Secondary School Certificate or in the first certificate issued by any Board of Education etc. irrespective of whether it is advantageous to him or not. (b) (i) -In relation to a person appointed on or after 1.1.79 the age of a Government servant for the purpose of this Rule shall be determined with reference to the date of birth entered in the High Secondary/Higher Secondary School Certificate or in the first certificate issued by any Board of Education where the minimum qualification prescribed for the post under Govt. is Matriculation or Secondary or Higher Secondary or any other diploma or certificate recognised and declared by the Government equivalent thereto and above. (8). In the present case the petitioner was appointed on 31.12.1981 and therefore, Rule 8(2)(b)(i) has application in his case as that his age shall be determined with reference to the date of birth entered in the certificate at the time of appointment. In this view of the matter it is clear that the petitioner is not entitled for any relief under the equitable jurisdiction of this Court under Article 226 of the Constitution of India. It is not in dispute that in the certificate of High School and the Service Record the date of birth of the petitioner is shown as 10.4.1943. Rule 8(2)(b)(i) clearly provides that the person who was in the State Service on or after 1.1.79, his date of birth as recorded in the Service Book/Service Roll shall only be accepted by the State Government irrespective of its basis and once recorded, the date of birth in the aforesaid manner shall not be subject to any amendment or correction even on the basis of certificates of Middle/Higher Middle School or Education Board whether such changes are beneficial to such employee or not. The law on the subject is very much clear and hence the case put forward by the petitioner has no merits. Annex. R/2 is the notification dated 25.11.95 issued by the Finance Department which makes the position clear. In Annexure R/2 it is clearly provided that according to the provisions of the Rules of 1951 such matters should only be reviewed by the Administrative Heads and accordingly while exercising their powers, decision should be taken by them. Therefore, such matters, in our opinion, are not required to be sent to the Finance Department. In the instant case, the claim of the petitioner runs contrary to the provisions as contained in Annex. R/1 and, therefore, in our opinion, he is not entitled for any relief. It it submitted on behalf of the second respondent that on the report of the Additional District Judge, comments were called from the petitioner which were again sent to the District Judge and the District Judge in turn had submitted his comments vide his letter dated November 17, 1995. It it submitted on behalf of the second respondent that on the report of the Additional District Judge, comments were called from the petitioner which were again sent to the District Judge and the District Judge in turn had submitted his comments vide his letter dated November 17, 1995. The matter was thoroughly examined and the then Honble Chief Justice had taken the decision for not making any change in the date of birth of the petitioner already recorded and accordingly communication dated 10.12.1996 (Annex.9) was sent to the petitioner through the District Judge, Udaipur. It is also to be noticed that the petitioners representation was considered and on the report of the Additional District Judge, petitioners comments were also called and thereafter the same was thoroughly scrutinised and decision was taken not to make any change in the date of birth which was also communicated to the petitioner. Since a final decision had already been taken on 10.12.1996 itself, the review petition was rightly filed. (9). In our opinion, no Judicial Officer or other employees of the Service can claim a right of correction of date of birth and entertainment of such writ applications for correction of date of birth. It will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications with the sole object of preventing their retirement when due. The Supreme Court has held that extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution of India is not meant to make employees of the Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so called newly found material. In the instant case the petitioner has joined the Rajasthan Judicial Service on 3.1.1982. He is in service for about 18 years with no objection whatsoever raised as to his date of birth accepted by the employer as correct. However the petitioner came forward with the writ petition in the year 1999 seeking correction of his date of birth in his Service Records at the fag end of his service, who is due to retire on superannuation on 30.4.2001. However the petitioner came forward with the writ petition in the year 1999 seeking correction of his date of birth in his Service Records at the fag end of his service, who is due to retire on superannuation on 30.4.2001. The very conduct of non registering an objection for all these years should be a sufficient reason for this Court not to entertain the writ application on the ground of acquiescence and laches. Moreover, we are also not inclined to exercise our discretionary jurisdiction since the petitioner had waited to file the writ petition till the year 1999 to get the date of birth corrected by availing of the extra ordinary jurisdiction of this Court. In the present case the petitioner while seeking employment agreed with the terms and conditions on which employment was offered. The date of birth as stated by him was entered in the Service Records. This apart the revision of his date of birth now would upset the promotional chances of others in the Judicial Service who may be waiting for their promotion on the basis that the incumbent who would retire on the given date opening up promotional avenues for others. Permitting a change at this juncture in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning and will also upset the legitimate expectation of other Officers who are waiting in the queue hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. Any direction for correction of the date of birth of the petitioner concerned has a chain reaction, inasmuch as others waiting for years below him for the respective promotions are also affected in this process. In the instant case the onus which is on the petitioner to prove about the wrong recording of his date of birth in his Service Book has not been duly discharged. In our opinion, the date of birth should be determined on the basis of the Service Record and not on what the petitioner claims to be his date of birth. (9). We have perused the original Service Book of the petitioner and the entries made thereunder maintained by the High Court. In our opinion, the date of birth should be determined on the basis of the Service Record and not on what the petitioner claims to be his date of birth. (9). We have perused the original Service Book of the petitioner and the entries made thereunder maintained by the High Court. We have also perused the Service Book of the petitioner and the entries made in the said Service Book when he was in Government service as Lecturer in Geography in Government College, Kota, where he was initially appointed. We have also perused Form 25 which is a statement of Service of the petitioner. He joined as Lecturer in Geography in Government College on 1.1.1974. In the said statement the date of birth has been mentioned as 10.4.1943 in the column earmarked for the purpose. The said Form is attested by the Accounts Officer. On page 2 of the Service Book maintained by the Government College in Column 3 his date of birth by the Christian era has been mentioned as ``10.04.1944. This column is attested by the Principal, Government College, Kota as per statement received from the A.G. Rajasthan. The entry was attested by the Principal, Government College, Kota on 3.11.76. In column 9 of page 3 of the said Service Book the signature of the Government servant, namely, the petitioner has been made on 3.11.79 which was attested by the Principal of the Government College, Kota. Below the said signature of the Principal the petitioner has again affixed his signature. The signature of the petitioner was made on 2.5.81 and re-attested by the Principal on 2.5.81 in Column 9. The petitioner was relieved from the post of Lecturer on 14.1.1982 and he was appointed as Munsif under District and Sessions Judge, Pali vide order No.Estt./RJS/5/82 dated 3.1.82. He joined the post of Munsif on 15.1.82. Four Zerox copies of certificates are found in the file. In one copy of the Transfer Certificate issued by the Head Master, Govt. Thakkar Bapa School, Jodhpur his date of birth is mentioned as 3.10.44. The said certificate was obtained by the petitioner on 29.8.92. The date of birth is shown as 3.10.1994 in the copy of Transfer Certificate issued by the Head Master, Govt. Middle School, Rajmahal, Jodhpur. The said certificate was obtained by the petitioner on 3.10.91. In the said certificate it is mentioned on the top as `Duplicate copy. The said certificate was obtained by the petitioner on 29.8.92. The date of birth is shown as 3.10.1994 in the copy of Transfer Certificate issued by the Head Master, Govt. Middle School, Rajmahal, Jodhpur. The said certificate was obtained by the petitioner on 3.10.91. In the said certificate it is mentioned on the top as `Duplicate copy. Another certificate was obtained by the petitioner on 16.9.91 wherein the date of birth in the copy of the Transfer certificate issued by the Head Master. Govt. Naveen Sr. Hr. Sec. School, Jodhpur is mentioned as 3.10.44. Whereas in the Certificate No. 4324 issued, entries were made as under:- ``No. 4324 BOARD OF SECONDARY EDUCATION, RAJASTHAN High School Examination, 1961 Roll No. 17677 This is to certify that Om Prakash Son/Daughter of Shri Kishan, born on Ten.04.One thousand nine hundred and forty three, passed the High School Examination held in the month of March/April, 1961 from Jodhpur in the following Compulsory and Optional subjects:- Compulsory subjects 1. Hindi 2. English 3. General Science 4. Social Studies and 5. Elementary Mathematics Optional subjects: 1. Geography of Group III 2. Civics with Indian Administration of Group III with distinction in Nil and was placed in the First Division. Jaipur June 15, 1961 Secretary Board of Secondary Education, Rajasthan. This certificate was issued on 15.6.1961 by the Secretary, Board of Secondary Education, Rajasthan and attested by another Officer (not legible). As already noticed, the date of birth has also been entered in the Service Book opened by the Government College, Kota. The date of birth has been clearly mentioned as 10.04.1943. In the original Service Book of Rajasthan High Court the columns pertaining to the particulars of the government servant are blank. Only in Column No. 1 the name is written and columns No. 2 to 9 have been type written in Hindi and not attested by any officer. Though rubber stamp of the District & Sessions Judge, Pratapgrah is affixed and date is filled up in hand as 20.11.93, but it has not been attested by the District Judge. In this Service Book some pages have been pasted later on. In Column No. 2 the residential address is mentioned as Munsif Bungalow, Chooti Sadri. In Column No. 3 it is mentioned that the actual date of birth is 3.10.44. In this Service Book some pages have been pasted later on. In Column No. 2 the residential address is mentioned as Munsif Bungalow, Chooti Sadri. In Column No. 3 it is mentioned that the actual date of birth is 3.10.44. There is also a type written endorsement which is reproduced hereunder:- ^^okLrfod tUe frfFk 3-10-44 izkFkfed Ldwy] fefMy Ldwy o gk-lS-Ldwy dh Vh-lh-dh izfr layXu lgou~ ls gkbZ Ldwy esa 10-4-43 mYysf[kr gksus ls tUe frfFk kqf)dj.k gsrq fu;ekuqlkj izfrosnu izsf"kr fd;k tk pqdk gSA** It is pertinent to note that in Column No. 3 and Column No. 8 stamp of District & Sessions Judge, Pratapgarh is affixed but there is no signature of the District & Sessions Judge, Pratapgarh. Moreover the placing of above statement showing that real date of birth is 3.10.44 in the back of very first page of Service Book in typed condition, appears to be highly suspicious. In ordinary course of transacting business no Officer of the rank of District Judge making entries in the Service Book shall write a conclusion, which is yet to be investigated by High Court and decide on it. Placing of typed sheets in a pre-bound Service Book creates lot of suspicion about tampering with the record. In Column No. 8 there are thumb and finger impressions of the petitioner and in Column No. 9 the petitioner O.P. Solanki alone has signed and date 2.11.93 is mentioned below his signatures. (11). In our opinion, the blanks in the Service Book raise a very great suspicion in our mind and the certificates obtained on 29.8.92, 3.10.91 and 16.9.91 mentioning the date of birth of the petitioner as 3.10.44 are shrouded in mystry. As already noticed, his date of birth has been mentioned as 10.4.43 when he initially joined the service in the Govt. College, Kota as Lecturer. Thus the petitioner has come to this Court with unclean hands and with malafide intention to get his date of birth corrected as 3.10.44. (12). A Division Bench of this Court (comprised of Chief Justice Dr. AR. College, Kota as Lecturer. Thus the petitioner has come to this Court with unclean hands and with malafide intention to get his date of birth corrected as 3.10.44. (12). A Division Bench of this Court (comprised of Chief Justice Dr. AR. Lakshmanan and Rajesh Balia, J.) in D.B. Civil Special Appeal No. 840/98, decided on 25.7.2000 in Shambhoo Kumar vs. District Judge, Udaipur and Others (1) while considering the case of suppression of material by the petitioner therein has observed: ``It is well settled proposition of law that it is the duty of a person invoking the special writ jurisdiction of the Court to make a full and true disclosure of all relevant facts. He should not suppress any facts. The applicant for a writ under Article 226 of the Constitution must come in the manner prescribed and must be perfectly frank and open with the Court. If he conceals something, which is relevant, from the Court the Court will refuse to go into the matter. xxxxxx xxxxxxx xxxxx xxxxxx xxxxx In this case , the appellant, invoking the special jurisdiction of this Court under Article 226 of the Constitution of India, is bound to make a full and true disclosure of all relevant facts. However, the appellant has not done so. The appellant has not been as frank and candid as he is under a duty to be and has suppressed material facts relevant to the issues involved. We are, therefore, of the opinion that he is disentitled to any relief from the Court on this ground. The appellant was not justified in doing so. (13). The writ petitioner who comes to court for relief must come not only with clean hands but must further come with a clean heart, clean mind and a clean objective. In the instant case the petitioner has approached this Court with an unclean mind, and with ulterior objective and a bad intention. The intention of the petitioner appears to be obvious. It is an abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice. The petitioner being a Judicial Officer is not expected to come before this Court with an oblique motive. Such an attempt should be put an end and discouraged with an iron hand. It is an abuse of the process of the Court calculated to hamper the due course of a judicial proceeding or the orderly administration of justice. The petitioner being a Judicial Officer is not expected to come before this Court with an oblique motive. Such an attempt should be put an end and discouraged with an iron hand. The Court cannot overlook such an unreasonable, unfair and unjust attempt on the part of the petitioner. It should be remembered that a court of equity must act to prevent perpetration of legal fraud. It is expected to do justice by promotion of honesty and good faith. A party seeking relief in equity must come to the court with clean hands. We have noticed the conduct of the petitioner herein putting forward a plea which has been found to be wholly incorrect. He, therefore, in our opinion, is certainly did not come to this Court with clean hands. As already noticed, we are unable to comprehend ourselves as to how certain blank sheets in the Form of Service Records containing only one entry without even containing attesting signature of the District Judge has been found in the Service Book. In our view this is a calculated attempt on the part of the petitioner to mislead this Court and to obtain certain relief, if he can. Such an attempt of the petitioner, in our view, will disentitle him from any relief or assistance from this Court and the writ petition is liable to be dismissed. The conduct of the petitioner is most reprehensible and deserves to be strongly deprecated. (14). The writ petition, therefore, fails and is dismissed with costs quantified at Rs. 1, 000/-. (15). A copy of this Order shall be placed in the Service Records of the petitioner.