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Madhya Pradesh High Court · body

2006 DIGILAW 1241 (MP)

SURENDRA SINGH v. STATE OF M P

2006-11-06

R.K.GUPTA

body2006
Judgment ( 1. ) THE petitioner by way of filing this petition has claimed for the correction of his date of birth. According to the petitioner his correct date of birth is 16-3-1947 but in the service record, the date of birth is recorded as 16-7-1945. Accordingly, the order of retirement was passed retiring the petitioner from the services of the respondents by an order Annexure P-5, dated 31-7-2005. ( 2. ) THE petitioner entered into the services of the respondents as a jeep Driver on 1-1-1972. After when the petitioner entered into the services of the respondents the service book of the petitioner was prepared. Extracts of the service book have been filed by the petitioner himself which is Annexure P-2 to the petition. In the said service book the date of birth by Christian era has been recorded as 16-7-1945. The petitioner submitted an application for correction of his date of birth on 24-5-2004 though he entered into the services the respondents in the year 1972. The petitioner intimated that in the service book, his date of birth has wrongly been recorded as 16-7-1945 and accordingly prayed for correction of his date of birth. The application as such was submitted after 32 years. The representation of the petitioner was rejected by an order Annexure p-9, dated 7-10-2004 and the petitioner was informed that application for correction of his date of birth has been rejected and the date of birth as recorded in the service book shall alone be accepted. ( 3. ) THE respondents have filed the return and along with the return an affidavit of the petitioner has also been filed by the respondents which is annexure R-13 to the return. In the same it is shown that petitioner has submitted on his own that his correct date of birth is 16-7-1945. This affidavit has been sworn in on 17-7-2001. ( 4. ) THE extracts of the service book has already been filed by the petitioner wherein the date of birth is shown as 16-7-1945. The learned Counsel for the respondents submitted that on the basis of the documents submitted by the petitioner which is Annexure P-1 to the petition, the petitioners date of birth should have been treated by the respondents as 16-3-1947. ( 5. ) THE submission so made by learned Counsel for the parties is considered. ( 6. The learned Counsel for the respondents submitted that on the basis of the documents submitted by the petitioner which is Annexure P-1 to the petition, the petitioners date of birth should have been treated by the respondents as 16-3-1947. ( 5. ) THE submission so made by learned Counsel for the parties is considered. ( 6. ) IT may be seen the Apex Court in State of T. N. Vs. T. V. Venugopalan, (1994) 6 SCC 302 , has taken view that delay in seeking correction in the date of birth at the time when the petitioner entered into the services and counter signed the service book, the employee as such cannot be permitted to challenge at the fag end of his service. The relevant Paras 6 and 7 of the aforesaid judgment is reproduced as under:- "6. In Executive Engineer Vs. Rangadhar Mallick interpreting Rule 65 of the Orissa General Financial Rules, when an application for correction of date of birth was made near about the time of superannuation, this Court held that it shall not be corrected. In Secretary and Commissioner, Home Department Vs. R. Kirubakaran, arising from the Tamil Nadu State and Subordinate Rules, this court while noticing the inordinate delay in filing the application for correction of the date of birth, set aside the order of the tribunal. Director of Technical Education Vs. K. Sitadevi, relied upon by the respondent, renders little assistance to the facts in this case. The respondent in that case filed a civil suit for correction of date of birth without impleading the Government and got suit decreed. While upholding that the State being not a party to the suit, the decree did not bind the Government, since the evidence of the Municipal birth Register was not objected by the State when it was found by this Court, cannot be faulted. In that factual background, this Court upheld the order of the Tribunal directing correction of date of birth of the respondent therein. " 7. As held by this Court in Harman case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i. e. , 1961. " 7. As held by this Court in Harman case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i. e. , 1961. If no application is made, after expiry of five years, the Government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service onl2-l-1952, and only when he was due for superannuation at the age of 58 years on 31- 8-1991, he made the application exactly one year before, his superannuation. The Government, rejected his claim before he attained the age of superannuation on 30-8-1991. When questioned the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The government considered various facts and circumstances in the goms No. 271 and rejected the claim on 31-3-1993. The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a Court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or Court just to gain time to continue in service and the Tribunal or Courts are unfortunately unduly liberal in entertaining and allowing the Government employees or public employees to remain in office, which is adding an impetus to resort to fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view the Tribunal has grossly erred in showing over indulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with cost quantified as Rs. 3,000/ -. ( 7. ) AGAIN the Apex Court had an occasion to consider the said aspect in state of U. P. and others Vs. Gulaichi (Smt.), (2003) 6 SCC 483 . The relevant paras 8 and 9 of the aforesaid judgment is reproduced as under:- "8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the constitution of India or by filing applications before the administrative Tribunals concerned, or even filing suits for adjudications as to whether the dates of birth recorded were correct or not. " 9. "most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. " 9. "most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained, the sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam vs. Daksha Prasad Deka, (1970) 3 SCC 624 , this Court said that the date of compulsory retirement:-"must in our judgment, be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. " In the case of Govt. of A. P. Vs. M. Hayagreev Sarma, the AP. Public employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births-and-deaths register maintained under the Births, Deaths and Marriages registration Act, 1886. The Andhra Pradesh Administrative tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births-and-deaths register ignoring the Rules framed by the State Government referred to above. It was inter alia observed by this Court:- "7. The object underlying Rule 4 is to avoid repeated applications by a Government employee for the correction of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 rules, he will not be entitled for alteration of his date of birth. " in Executive Engineer Vs. " in Executive Engineer Vs. Rangadhar Mallick, Rule 65 of the Orissa general Finance Rules was examined which provides that representation made for correction of date of birth near about the time of superannuation shall not be entertained. The respondent in that case was appointed on 16-11-1968. On 9-9-1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the order of the Tribunal saying that the claim of the respondent that his date of birth was 27-11-1938 instead of 27-11-1928 should not have been accepted on the basis of the documents as produced in support of the said claim, because the date of birth was recorded as per the document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as 27-11-1928. The said respondent did not take any step nor made any representation for correcting his date of birth till 9-9-1986. In the case of Union of India Vs. Harnam Singh, the position in law was again reiterated and it was observed :- "7. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. " an application for correction of the date of birth should not be dealt with by the Courts, Tribunals or the High Court keeping in view only the public servant concerned. It need not be pointed out that 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. It need not be pointed out that 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. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. Cases are not unknown when a person accept appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 bright. 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 and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or made a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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 the 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 applicant must be within at least a reasonable time. 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 about 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 date of birth in the service-books. 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 date of birth in the service-books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior. " ( 8. ) AGAIN the Apex Court in State of Gujarat and others Vs. Vali mohmed Dosabhai Sindhi, 2006 AIR SCW 3687, has considered the said aspect and relying upon the earlier judgments as referred hereinabove, the claim with regard to correction of date of birth was not accepted and the practice as such was also deprecated. ( 9. ) LEARNED Counsel for the petitioner also relied upon the judgment which is reported in Phool Chand Rathore Vs. Nagar Palika Parishad, Betul and others, 2003 (4) M. P. H. T. 324 = 2003 (4) MPLJ 319 . ( 10. ) THE aforesaid judgments are considered and in view of the judgments passed by the Apex Court as discussed hereinabove, the judgments shall have no application in the present case. ( 11. ) IN the present case the petitioner admittedly entered into the services of the respondent on 1-1-1972 then the service book was prepared. Date of birth was recorded as 16-7-1945. The application for correction of his date of birth was moved on 24-5-2004 which is Annexure P-3 to the petition. ( 12. ) KEEPING in view the aforesaid aspect of the matter, there is no substance in the matter and the petition as such is dismissed. Writ Petition dismissed.