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2006 DIGILAW 389 (HP)

MORDHWAJ v. STATE OF H. P

2006-12-08

M.R.VERMA, VIJAY PAL SINGH

body2006
JUDGEMENT M.R. Verma, J (Retd.) Chairman:- The applicant herein has claimed the following reliefs: (i) The order dated 11.1.1994 (Annexure-PL) may be set aside and quashed. (ii) The respondents be directed to correct the date of birth of the applicant as 15.2.1938 and that the applicant is not liable to the retired on 31st January 1994. (iii) That the respondents be directed to pay the applicant all his service and other consequential benefits to which he would have been entitled on his retirement on 29.2.1996. 2. The case of the applicant as made out in the original-application is that he was admitted in Primary School Gurkotha on 4.1.2001 (B.K.) and his date of birth at the time of admission was entered as Fagun 1994 which corresponds to 15.2.1938. After leaving the said Primary School the applicant took admission in the Middle School Bhangrotu where the date of birth of the applicant was wrongly recorded as 15.1.1936 instead of 15.2.1938. The wrong date of birth continued to be mentioned in the record including his service record. When the applicant came to known that his date of birth was wrongly record in the service record he made a representation dated 12.8.1992 for correction thereof which was rejected vide Annexure PG. The applicant then filed O.A. 1055/1993 against the wrong and illegal rejection of his representation, which was ordered to be treated as representation, to respondent No.2. When the representation was not decided by respondent No.2, the applicant filed M.A. in the aforesaid original application and the Tribunal granted the stay against the retirement of the applicant till February 1996 in case the representation was not decided finally during the period of one month. It is further case of the applicant that it was thereafter that the representation as the aforesaid original application was treated. Was rejected vide Annexure PL in an arbitrary, unconstitutional and illegal manner, hence this original application. 3. The respondents contested the claimed of the applicant. It has been averred in the reply that the applicant entered service in the year 1958 but never questioned his date of birth as "recorded in his service book till August 1992 when about one and a half year were left for his superannuation therefore, as per the law laid down by the Honble Apex Court, this original application is liable to be rejected. It has further been claimed that claim of the applicant is time barred. On merit it has been averred mat age of the applicant in his service record has been recorded in accordance with the matriculation certificate and his representation were duly considered and were rightly rejected as per the norms contained in Annexure R-1. 4. The applicant filed rejoined wherein the has re-affirmed his claim in detail and has repelled the defence as taken by the respondents in their reply. 5. We have heard the learned counsel for the applicant and the learned Deputy Advocate General for the respondents and have perused the material placed on record. 6. The stand of the respondents on merits is that the claim of the applicant has been duly considered on the basis of material and has been rightly rejected on merit vide Annexure PL and that the applicant traveled (as a student?) from one school to another according to his convenience and if any wrong date of birth was recorded by any teacher the same should have been taken note of by the applicant. It is pertinent to note here that it is not the claim of the respondents that during the process of the applicants joining different schools as a student, no mistake was committed about recording of his age. 7. The relevant part of Annexure PL rejecting the claim of the applicant on merits reads as under: "He is claiming the change in the date of birth on the basis of entry made in the School Admission Registry. Normally change can be allowed only on the basis of Panchayat record which maintains birth and death register. There is no documentary evidence from Panchayat record submitted by the petitioner/representations. The entry in the School Admission Registry can not be considered authentic. It is the Panchayat register which is considered authentic, it is normally not changed unless there are sufficient documentary evidence in the Panchayat record in the proof for change." 8.The above conclusions that change in date of birth can be allowed only on the basis of the Panchayat record which is considered authentic and entry in the school admission register cannot be considered authentic are contrary to law. The question as to the date of birth is a question of fact which can be proved by reliable evidence and entries in the school admission register made at the time of first admission unless changed on the basis of any other more reliable evidence is a reliable piece of evidence. 9. The aforesaid view is fully supported by the decision of the Honble Supreme Court in State of Punjab Vrs. Mohinder Singh (AIR 2005 S.C. 1868) where in it was held as under: " 12. On the contrary, the statement contained in the admission registry of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32. Clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of ones birth relates to the commencement of ones relationship by blood and a statement therefore, of ones made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 Clause (5)." 13. As observed by this Court in Umesh Chandra V. State of Rajasthan (1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam. 10. The applicant admittedly got his primary education in Govt. Primary School, Gurkotha. His school leaving certificate from the said school is Annexure PA showing the date of birth of the applicant as 4th Pagun, 1994 B.K. which corresponds to 15.2.1938 A.D. vide photo copies of the Jantries Annexures PC and PP. 11. 10. The applicant admittedly got his primary education in Govt. Primary School, Gurkotha. His school leaving certificate from the said school is Annexure PA showing the date of birth of the applicant as 4th Pagun, 1994 B.K. which corresponds to 15.2.1938 A.D. vide photo copies of the Jantries Annexures PC and PP. 11. The applicant thereafter joined Got. Middle School Bhangrotu, a fact not disputed by the respondents. The school-leaving certificate of the applicant issued from this school mentions the date of birth of the applicant as 16.1.1936. A.D. It is not in dispute that as per the procedure when a student leaves one school and joins another his date of birth is recorded in the later school as per the entries in the school leaving certificate issue from the former school. Evidently it had not been done so in the case of the applicant when he got admission in Bhangrotu school wherein his date of birth was recorded as per the gorgeon calendar whereas his date of birth in the school leaving certificate Annexure PA on the basis of which the age was to be recorded in Bhangrotu school was shown as 4th Falgun 1994 which in fact corresponds to 15.2.1938 A.D. and not 16.1.1936 A.D. The mistake thus had been committed while converting the Bikrami date into gorgeon date and such mistake evidently was not committed by the applicant but by the official of the school who wrongly converted and recorded the date of birth of the applicant as 16.1.1936. At the time when this mistake was committed/occurred the applicant was a minor and incapable of taking note of the mistake committed by the school staff therefore, the contentions that the applicant should have taken note of this mistake is not sustainable. 12. Insistence on production of entries of date of birth of applicant as in the Panchayat record where such entries did not exist was unwarranted. According to the averments made in the original application relevant Panchayat record had given gutted in fire. Such averments in the original applicant are duly supported by the certificate Annexure PE and copy of FIR Annexure PO. Evidently the applicant could not produce copy of entry in Panchayat record which stood gutted by fire in 1980. 13. It is not the case of the respondents that factually the date of birth recorded in Ann. Such averments in the original applicant are duly supported by the certificate Annexure PE and copy of FIR Annexure PO. Evidently the applicant could not produce copy of entry in Panchayat record which stood gutted by fire in 1980. 13. It is not the case of the respondents that factually the date of birth recorded in Ann. PA is incorrect or that the conversion of date in Annexure PB is correct or on any other ground so mentioned date is the correct date of birth of the applicant. Thus, there is no reason to disbelieve the correctness of the date of birth of the applicant as entered in Annexure PA. 14. It was contended by the learned Deputy Advocate General that this original application deserves to be dismissed for the reasons that (I) the applicant after entry into service could apply for correction of age within two years and no correction is permissible thereafter and (ii) the correction of date of birth had been sought for when the applicant was about to retire from service therefore, his representation have been rightly rejected in view of the decision of the Apex Court in Secretary and Commissioner Home Department and others Vrs. R.Kirubakaran (AIR 1993 S.C. 2647) and State of U.P. and another Vrs. Shiv Narain Upadhaya (2005) 6 SCC 49). 15. In R. Kirubakarans case the Tribunal ordered correction of the date of birth on the basis of the report submitted by a Revenue Officer on the basis of oral inquiry which was not accepted even by the superior revenue authorities and there were in-congruities and confusion about the dates of birth of the brothers and sisters of the respondents and the application for correction was filed about a year before the date of retirement. Against this back ground the Honble Supreme Court held as under:- "7. The Tamil Nadu Service Manual contained Rules 49 and 49-A which are the provisions in respect of alteration and correction of the date of birth. Whenever any application is filed, by person governed by those service rules, procedures prescribed therein have to be strictly followed, including the time limit prescribed for making such an application. The Tamil Nadu Service Manual contained Rules 49 and 49-A which are the provisions in respect of alteration and correction of the date of birth. Whenever any application is filed, by person governed by those service rules, procedures prescribed therein have to be strictly followed, including the time limit prescribed for making such an application. Clause (b) of the aforesaid Rules 49 provides that after a person has entered in service, an application to alter the date of his birth as entered in the Official records "shall be entertained only if such an application is made within five years of such entry in service..... "It need not be pointed out that if an application is made for correction of the date of birth mentioned in the service records at any early date or within the time prescribed, the authorities are in much better position to verify the same. Normally, in most of the services the date of birth is recorded in the service records of the eve of the appointment with reference to the date of birth mentioned in the matriculation certificate. Higher Secondary Education Board Certificate or any other certificate of similar nature produced by the applicant concerned at the time of making application for his appointment as such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about the time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the findings recorded by the Tribunal". 16. Similar view had been taken by the Honble Supreme Court in Shiv Narain Upadhyayas case (Supra). 17. In the case in hand it is undisputed case of the applicant that when he came to know about his aforesaid correct date of birth he immediately made a representation Annexure PF dated 12.8.1992 to the authorities. It is nobodys case that the applicant knew from the very beginning about his incorrect age in the service record but deliberately or because of negligence delayed making of the representation with a view to take any undesirable benefit of the incorrect entry about his date of birth. It is nobodys case that the applicant knew from the very beginning about his incorrect age in the service record but deliberately or because of negligence delayed making of the representation with a view to take any undesirable benefit of the incorrect entry about his date of birth. The applicant could have represented only on coming to know that his date of birth in the service record was incorrect and did so. Therefore, the fact that the representation had not been made earlier but was made when about one and a half years of his service left before retirement is inconsequential. Therefore, in the totality of the facts and circumstances of the case denial of correction of the date of birth of the applicant in his service record and consequential benefits will be denial of justice to the applicant. 18. As a result, Annexure PI dated 11.1.1994 is set aside and the respondents are directed to correct the date of birth of the applicant in his service record as 15.2.1938 and treat him to have retired on 29.2.1996 and give him all consequential service / retrial benefits within six months of the passing of this order. The original application is disposed of in terms of the above orders leaving the parties to bear their own costs.