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2002 DIGILAW 886 (PAT)

Lalji Ram v. State Of Bihar

2002-08-13

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. In this writ application prayer made by the petitioner is to quash the communication dated 29th May, 2001 (Annexure-9) whereby the petitioner has been informed that the Police Headquarters by its Memo No. 172 dated 22.1.2000 has rejected the prayer for correction of date of birth. His further prayer is to issue a writ in the nature of mandamus commanding the respondents to change his date of birth from 1943 to 3.7.1947 in the service book. 2. Bereft of unnecessary details, facts giving rise to the present application are that the petitioner was initially appointed as Constable on 1.2.1968 in B.M.P.X. and in the service book his year of birth has been mentioned as 1943, as also 25 years of age on 19.1.68. Said service book (Annexure-C) contains the signature of the petitioner. Petitioner later on was posted as Literate Constable by Force Order No. 154/86. He was promoted to the rank of Writer Havildar in the year 1996. In the year 1998 a gradation list of the Literate Constables in the Bihar Military Police was published and in that the date of birth of the petitioner has been shown as 1943 and the date of appointment as 1.2.1960. Petitioner filed application on 31.8.1998 (Annexure-5) for correction of his date of birth as also the date of appointment. His claim was that his date of appointment is 1.2.1968 and the date of birth 4th June, 1947. In support of his assertion, he filed certificates of the Junior High School Examination, 1960 conducted by the Educa Department of the State of Uttar Pradesh and High School Examination, 1963 conducted by the Board of High School and Intermediate Education, Uttar Pradesh. According to those certificates, petitioner passed the Junior High School Examination in the year 1960 and High School Examination in the year 1963. The request of the petitioner was considered by the Additional Director General, Bihar Military Police and he directed that typographical error i.e. 1.2.1960 in the date of appointment of the petitioner be read as 1.2.1968. However, he turned down the prayer of the petitioner for correction of date of birth. The decision of the Additional Director General of Police was communicated to the Commandant of Bihar Military Police-X where the petitioner was working by Memo dated 22.1.2000 (Annexure-A). However, he turned down the prayer of the petitioner for correction of date of birth. The decision of the Additional Director General of Police was communicated to the Commandant of Bihar Military Police-X where the petitioner was working by Memo dated 22.1.2000 (Annexure-A). The Commandant of the Bihar Military Police by its communication dated 29th of May, 2001 apprised the petitioner of the decision taken by the Additional Director, Bihar Military Police rejecting his prayer for correction of the date of birth. 3. Prayer of the petitioner has been rejected mainly on the ground that the application filed by the petitioner is beyond the time prescribed by the Home (Police) Department in its Memo No. 2115 dated 21.2.1976 which had, inter alia, fixed time limit of one year for making application for correction in the date of birth. 4. Mr. Teg Bahadur Singh, learned counsel for the petitioner submits that for the first time petitioner could know about the wrong entry in his date of birth when the gradation list was published in the year 1998. The plea of the petitioner that he came to know about the wrong entry in his date of birth for the first time in 1998 is difficult to swallow. Petitioner was appointed as Constable on 1.2.1968 and the service book which contains the signature of the petitioner clearly indicates his year of birth to be 1943 and age 25 years on 19.1.1968. It is not the stand of the petitioner that signature in the service book is not his. Petitioner is not an illiterate person. Entry in regard to the date of birth is of vital importance and the service book indicating petitioners date of birth containing his signature clearly defeats the plea of the petitioner that he, for the first time, came to khow about the wrong entry of date of birth in the year 1998. 5. Mr. Singh then contends that as the petitioner had passed the Junior High School Examination and the High School Examination in year 1960 and 1963 i.e. prior to his appointment on 1.2.1968, his prayer for correction of date of birth ought not to have been rejected on the ground that the application filed by the petitioner is at a belated stage. Singh then contends that as the petitioner had passed the Junior High School Examination and the High School Examination in year 1960 and 1963 i.e. prior to his appointment on 1.2.1968, his prayer for correction of date of birth ought not to have been rejected on the ground that the application filed by the petitioner is at a belated stage. He submits that prescription of time limit of one year in Memo dated 21.2.1976 referred to above is not mandatory and nothing prevents the State Government from making correction in the date of birth at any stage. In support of his submission learned counsel has placed reliance on an order of the Supreme Court dated 20th of February, 1991 passed in Civil Appeal No. 831 of 1991 (Radha Raman Singh V/s. The State of Bihar and others) and my attention has been drawn to the following passage from the said order : "The only point against the appellant is that he has applied for a change in.the date of birth after a lapse of about 23 years and that though there was an opportunity given to all employees to have the date of birth corrected in 1976 he did not avail himself of the same. This is no doubt true that having regard to the uncontrovertible evidence in this case we are of the opinion in the interest of justice that the appellants date of birth should be corrected as sought for by him". 6. Another decision on which strong reliance has been placed is the decision of a Division Bench of this Court in the case of Murli ManoharTiwary V/s. The State of Bihar and others (1986 P.L.J.R. 1180) and my attention has been drawn to the following passage from the said judgment: "It may be pointed out that the aforesaid communication dated 26.2.1976 had prescribed a time limit up to February, 1977 before which applications for corrections had to be filed but this Court in several pronouncements had held that once the decision to correct the service book has been taken by the State Government, the benefit there of cannot be denied to persons who failed to make application for correction within the period mentioned in that communication". 7. 7. Yet another decision on which Sri Singh has placed reliance is the Division Bench decision of this Court dated 3.9.91 passed in C.W.J.C. No. 1997 of 1991 (Parmeshwar Singh V/s. State of Bihar and others) and my attention has been drawn to the following passage from the said judgment. "It has also been held in the aforesaid decision that the Government circular fixing the time limit of one year for making application for such correction is not mandatory. Same, is the position with regard to Rule 96 of the Bihar Financial Rules (Volume-I) fixing the period of ten years for correction of age. For these reasons, the claim of the petitioner appears to be justified". 8. Mr. Ajoy Bihari Sinha S.C. X, however, appearing on behalf of the respondents submits that the question is not as to whether petitioner passed the High School Examination prior to his appointment but whether belated attempt made soon before superannuation for change of date of birth is fit to be granted by this Court in exercise of its writ jurisdiction. He points out that according to the entry made in the service book petitioner in normal course would have retired in July, 2001 and he had filed the application for correction of his date of birth for the first time before the employer on 31.8.1998 and writ application before this Court on 27.6.2001. He submits that in the facts of the present case the prayer made by the petitioner is not fit to be granted in exercise of writ jurisdiction. In support of his submission Mr. Sinha placed reliance on a judgment of the Supreme Court in the case of Chief Medical Officer V/s. Khadeer Khadri [1995 (1) P.L.J.R. 81]. In the said case it has been held as follows : "No doubt, sub-rule (5) of Rule 2 of the Andhra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules, 1984 provides power for correction of the bona fide mistake in recording the date of birth. It cannot be said that it is a clerical mistake. The date of birth having been given and recorded in the service register as early in 1951, it was not a bona fide mistake. The respondent claimed that he discovered the mistake in 1991 that his date of birth instead is July 15, 1934 but it was recorded as November 14, 1933. The date of birth having been given and recorded in the service register as early in 1951, it was not a bona fide mistake. The respondent claimed that he discovered the mistake in 1991 that his date of birth instead is July 15, 1934 but it was recorded as November 14, 1933. This is only a ruse to get over the bar of limitation to have the date of birth entered in the service record corrected. The rules prescribe the procedure for laying the application with in three years from the date of entering into service. In 1976, executive instructions were issued for correction of date of birth which were replaced by statutory rules issued in 1984. The latter also prescribes the procedure. He did not avail of the opportunity when, twice, it was available to him to have it corrected. It would clearly show that subsequent belated attempt is not a bona fide one but to have the correction made to his advantage after the bar of limitation created by the rules. The Tribunal has not properly considered the matter in this perspective. The appeal is allowed. O.A. stands dismissed. No costs". 9. It is relevant here to state that Rule 96 of Part-I of Bihar Financial Rules contemplates of filing of representation for rectification of mistake in the date of birth within a period of ten years and the same in specific term provides that representation submitted thereafter will be summarily rejected. Rule 96 of the Bihar Financial Rules reads as follows : "96. Every person newly appointed to a service or post under Government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servants service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government. The actual date or the assumed date determined under rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servants service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government. Note 1.No representation for rectification of mistake in the date of birth as entered in the records of service of a Government servant shall be entertained, if it is not submitted within a period of ten years of the date of his entry into Government service. Representation submitted thereafter will be summarily rejected by the authority competent to pass final orders under this rule unless there are very exceptional cases to relax this time-limit. Note 2.Heads of departments are authorised to exercise this power in the case of non-gazetted Government servants under their control. 10. The Home (Police) Department in its Memo No. 2115 21.2.1976 had invited applications for correction of the date of birth in the service book of the Constables, on the basis of the entry made in the matriculation certificate within one year. Petitioner was appointed as back as on 1.2.1968 and he filed the application for correction of his date of birth on 31.8.1998. 11. The whole emphasis on part of the petitioner, is that he having passed the high school examination prior to his appointment in the year 1968, his date of birth is fit to be corrected and for that prescription of time in the Circular dated 21.2.1976 and Rule 96 of the Bihar Financial Rules is directory in nature. I find difficulty in accepting the broad proposition that neither the period mentioned in Rule 96 of the Bihar Financial Rules nor the period of one year mentioned in the Circular of 1976 is mandatory. Broadly speaking prescription of time in Statute or Circular is held to be directory in nature but in a case in which consequence is provided under the statute itself, same cannot be held to be so. Here in the present case Note I to Rule 96 of the Bihar Financial Rules uses negative expression and provides for summarily rejection of the representation for correction of date of birth, in case it is not filed within 10 years. Here in the present case Note I to Rule 96 of the Bihar Financial Rules uses negative expression and provides for summarily rejection of the representation for correction of date of birth, in case it is not filed within 10 years. Circular of the State Government dated 21.2.1976 was issued to meet a particular contingency and gave liberty to the Constables to file application for correction of date of birth, on the basis of matriculation certificate within one year. Use of negative expression in Rule 96 of the Bihar Financial Rules and consequence having been provided, Mind it difficuicult to hold that the provision is directory in nature. However, in view of the decision of the Division Bench of this Court in the case of Siyaram Singh V/s. The State of Bihar and others [1995 (1) P.L.J.R. 691], I have no option than to hoid that prescription of time is directory. In the present case much does not turn on this. I am not inclined to dwell into this matter any further. In the said case it has been held as follows : "This Court has consistently taken the view that neither the period mentioned in Rule 96 of the Bihar Financial Rules nor the period of one year mentioned in the said circular dated 26th February, 1976 is mandatory and in appropriate cases, prayer for correction of the date of birth may be entertained even after the expiry of the aforesaid period". 12. However in my opinion, the meat of the matter is as to whether in case where the controversy over the date of birth of an employee has been raised long after joining the service and the matter has engaged the attention of the authority and has been determined by following the general instruction issued by the Government, whether in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, this Court be justified in interfering with the decision of the employer. It has to be borne in mind that any direction for correction of the date of the birth of the public servant leads to a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. It has to be borne in mind that any direction for correction of the date of the birth of the public servant leads to a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. On account of correction of the date of birth the employee concerned continues in office in some cases for years within which time many employees who are below him in seniority waiting for their promotion may lose their promotion for ever. In the present case, in case the claim of the petitioner is accepted, the difference would be of 4 years. 13. In the case of Secy. and Commr. Home Deptt. V/s. Kirubakaran [1994 Supp. (1) S.C. 155] it has been held as follows : "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 with in which such application has to be filed, then such application must be filed with in 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. In many cases it is a part of the strategy on the part of such public servants to approach the court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books". 14. In the case of Burn Standard Co. Ltd. V/s. Dinabandhu Majumdar, [ (1995) 4 SCC 172 ] the Supreme Court sounded a note of caution to the High Courts for exercise of its jurisdiction for correction of the date of birth towards the fag end of the serivce of an employee. In the said case it has been observed as follows : "10. Ltd. V/s. Dinabandhu Majumdar, [ (1995) 4 SCC 172 ] the Supreme Court sounded a note of caution to the High Courts for exercise of its jurisdiction for correction of the date of birth towards the fag end of the serivce of an employee. In the said case it has been observed as follows : "10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make 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 material. The fact that an employee of Government or its instrumentality who has been 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, in our view, should be a sufficient reason for the High Court, not to entertain such application on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his service and leave record could have genuinely waited till the fag end of his service career to get it corrected by availing of the extra ordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts, should not, in exercise of their 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 entered in his service and leave record or service register with the avowed object of continuing in service beyond the normal period of his retirement". 15. From the decisions of the Supreme Court in the cases of Secy. and Commr. Home Department (supra) and Standard Co. Ltd. (supra), the principle which is deducible is that before any direction to correct the date of birth is issued, the court has to be 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 limit fixed by any rule or order. The fact that an employee, who has been in service for over a decade with no objection whatsoever raised as to his date of birth and accepted by the employer as correct, when all of a sudden employee comes forward to wards the fag end of 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 is sufficient reason for the High Court not to entertain such application on grounds of acquiescence, undue delay and laches. 16. When I apply the ratio of the decisions of the Supreme Court in the facts of the present case, I find that the petitioner was appointed as Constable on 1.2.1968, then became literate Constable by Force Order No. 154/86 and promoted to the rank of Writer Havildar in the year 1996. In the service book his date of birth has been shown as 1943 and it contains his signature. In the service book his date of birth has been shown as 1943 and it contains his signature. Petitioner filed the application for correction of his date of birth on 31.8.1998. Rule 96 of the Bihar Financial Rules, referred to above, prescribed a period of 10 years for entertainment of representation for rectification of mistake. The decision of the Home (Police) Department in its Memo No. 2115 dated 21.2.1976 has given one year time to the Constables for correction of date of birth in the light of the entry made in the matriculation certificate. Thus in the present case, rule and the State Governments decision had prescribed the period within which such application has to be filed. The petitioner had been in service for about three decades before he filed the application for correction of the date of birth. Thus the petitioner has sought correction of the date of birth long after joining the service when he was due to retire shortly. The writ application has been filed on 27.6.2001 whereas he is to retire in July, 2001 for change in the date recorded in the service record maintained in due course of administration. Any change in the same shall have chain reaction as the employee, next in the line for promotion, shall be denied promotion. As the controversy over the date of birth of the petitioner has been raised long after joining the service and the matter has engaged the attention of Additional Director General of Police and has been determined by following the procedure prescribed under the instruction issued in the year 1976, it is not a fit case in which the extra ordinary jurisdiction under Article 226 of the Constitution of India is fit to be exercised. The view which I have taken not only flows from the decisions of the Supreme Court in the cases of Secy. and Commr. Home Department (supra) and Burn Standard Co. (supra) but also from the decision of the Supreme Court in the case of G.M. Coking Coal Ltd., West Bengal V/s. Shib Kumar Dushad and others [ (2000) 8 SCC 696 ] in which it has been observed as follows : "On the analysis and the discussions in the foregoing paragraphs, we have no hesitation to hold that the High Court erred in interfering with the date of birth/age of the respondent as determined by the appellant. Accordingly, the appeal is allowed. The judgment of the Single Judge in Writ Petition No. 2717 of 1994 and the judgment of the Division Bench, confirming the judgment of the Single Judge with a modification, are set aside. Writ petition stands dismissed. Consequentially the respondent shall not be entitled to any service benefit on the basis of the service beyond the date/ year of superannuation as determined by the appellant, except the salary/ wage already received by him. No costs". For the reasons stated above, I do not find any merit in this application and it is dismissed accordingly.