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2007 DIGILAW 642 (JHR)

Baidyanath Singh v. State Of Jharkhand Through Chief Secretary, Govt. Of Jharkhand

2007-08-08

DHANANJAY PRASAD SINGH, M.KARPAGAVINAYAGAM, N.N.TIWARI

body2007
JUDGMENT M. Karpaga Vinayagam, C.J. 1. The employee in Government service, relying upon the date of birth in the Matriculation Certificate has raised the claim that the Matriculation Certificate alone would be conclusive proof of his age in preference to his service register. In order to decide the above issue, this case has been referred to this Full Bench. 2. The prayer in this writ petition by the petitioner, Baidyanath Singh, is for seeking for the quashing of the Memo dated 26.5.2004 of the SP(T), Special Branch informing the petitioner that his date of birth as per his Service Book is 1946 and so he is to retire on 30.6.2004 and to direct the respondents to correct the date of birth in the service book of the petitioner from 1946 to 6.6.1948. The case of the petitioner is as follows: (a) The petitioner passed the Matriculation in the year 1966. In the Matriculation Certificate, his date of birth has been mentioned as 6.6.1948. (b) He was appointed as Constable on 14.1.1969. (c) In the service book, the qualification has been recorded as matriculate. (d) When the petitioner was promoted in the rank of AS.I. in the year 1982 and when he was further promoted to the rank of S.I. in the year 1994, his qualification having matriculation certificate was considered. (e) The petitioner learnt that his date of birth in service book was wrongly recorded as 1946. Therefore, he filed a representation on 1.5.2004 before the S.P.(A), Special Branch requesting for correction of his date of birth in the service book as 6.6.1948 instead of 1946. (f) Even earlier, on 4.5.1982, when he came to know that wrong entry has been made in the service book, he sent a representation to correct the same on the basis of matriculation certificate. (g) In reply to the same, on 26.5.1982, the respondents sent a letter asking for certain queries. (h) On 30.5.1982, the petitioner filed explanation to queries, in reply of letter dated 26.5.1982. (i) So, on the basis of that, petitioner was under impression that his date of birth would have been corrected as per the Matriculation Certificate after filing his explanation on 30.5.1982. (h) On 30.5.1982, the petitioner filed explanation to queries, in reply of letter dated 26.5.1982. (i) So, on the basis of that, petitioner was under impression that his date of birth would have been corrected as per the Matriculation Certificate after filing his explanation on 30.5.1982. (J) Only, thereafter, he was granted promotion to the post of A.S.I, and thereafter to the post of S.I. (k) He came to know only in April 2004 that his date of birth in the Matriculation Certificate was not accepted, therefore, he sent a representation on 1.5.2004 requesting for correcting his date of birth. (1) However, on 26.5.2004, a memo has been issued by the SP (T), Special Branch, rejecting his request and intimating the petitioner that as his date of birth is recorded in service book as 1946, he is to retire on 30.6.2004. (m) Therefore, he filed this writ petition challenging the same. 3. The reply to the case of the petitioner by the respondents is as follows: (a) The petitioner was appointed as a Constable in the year 1969. (b) In the Service Book, Verification Roll and Candidate Register, the date of birth was mentioned as 1946. (c) The petitioner also put his signature in the column of candidate signature. (d) The petitioner submitted representation for the rectification of the date of birth only few months before the retirement. (e) As per the Bihar Service Code, Rule 9 and Bihar Financial Rule No. 96, the said representation must have been submitted within a period of ten years of the date of his entry into the government service. But, he was silent throughout the entire service tenure of 35 years. Therefore, he is not entitled to seek for correction. 4. We have heard the counsel for the parties and considered their submissions. 5. According to the petitioner, he passed the Matriculation in 1966 and as per the Matriculation Certificate, his date of birth is 6.6.1948. He joined as Constable on 14.1.1969. though in his Service Book, the date of birth was wrongly mentioned as 1946, in Matriculation Certificate it is correctly mentioned as 6.6.1948. He was promoted in 1982 as A.S.I. and further promoted as S.I. in 1994 only on the basis of the said Matriculation Certificate. He joined as Constable on 14.1.1969. though in his Service Book, the date of birth was wrongly mentioned as 1946, in Matriculation Certificate it is correctly mentioned as 6.6.1948. He was promoted in 1982 as A.S.I. and further promoted as S.I. in 1994 only on the basis of the said Matriculation Certificate. When he came to know that wrong entry has been made in the service regarding his date of birth, he sent a representation to correct the same on 4.5.1982. On 26.5.1982 respondents sent a letter asking for some queries. Then on 30.5.1982, the petitioner filed explanation for the queries and thereafter he was promoted. Therefore, petitioner was under impression that his date of birth would have been corrected on the basis of the Matriculation Certificate. The moment he came to know that his date of birth, as mentioned in Matriculation Certificate, has not been corrected in the Service Register, he sent a representation on 1.5.2004, requesting for correction. On 26.5.2004 the representation was rejected. 6. The main contention of the petitioners counsel is that the Matriculation Certificate was obtained in 1966 and as per the Matriculation Certificate, his date of birth is 6.6.1948 and when he is appointed in 1969, wrong date has been mentioned in the Service Record even though in the Service Book his qualification has been recorded as Matriculate. Since the Matriculation Certificate has been obtained prior to appointment, the date of birth should be determined on the basis of Matriculation Certificate and therefore, rejection is not valid. 7. On the other hand, it is contended on behalf of the respondents that the date of birth of the petitioner was mentioned in the Service Book, Verification Roll and Candidate Register as 1946 and the petitioner put his signature in all these documents and since the petitioners representation for rectification of date of birth was made only few months before the retirement, the same was rejected. As per the Bihar Service Code, Rule 9, and Rule 96 of the Bihar Financial Rule, the representation for rectification should be made within a period of 10 years from the date of entry into the Government Service. He was silent for entire service tenure of 35 years and the representation was made just few months before the retirement, and, therefore, he is not entitled for correction of his date of birth. 8. He was silent for entire service tenure of 35 years and the representation was made just few months before the retirement, and, therefore, he is not entitled for correction of his date of birth. 8. We have carefully considered the submissions made by the counsel for the parties. 9. In this case the employees are governed by the Bihar Service Code and Bihar Financial Rule with reference to the date of birth of the person who is in Government service. The service Register, Verification Roll and other documents would contain the signature of the petitioner, which shows that the date of birth was entered as 1946. As per Rule 96 of the Bihar Financial Rules, the date of birth once recorded in the Service Book of the Government Servant cannot be altered except in the case of a clerical error. Inspite of this clear provision, the Government have noticed the increasing tendency on the part of the Government Servants towards submitting representations at the fag end of their service for correction of their dates of births entered in their service records on some grounds or the other. The State Government have decided that the Government Servant making such representation must do so at any time within ten years of the date of his entering Government Service. Representation submitted after the expiry of this period will be summarily rejected by the authority competent to pass final orders unless there are very exceptional reasons to relax this time limit. 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 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. 10. The actual date or the assumed date determined under Rule 97 should be recorded in the history of 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. 10. In this case though Matriculation Certificate showed the date of birth as 6.6.1948, he has never requested for correction of date of birth within ten years of his entering into the job as per Rule 96. Of course, it is stated that in 1982 he sent a request for correction of date of birth and also sent a reply to the queries made by the department. But, the same was not pursued by the petitioner. No materials have been placed that he asked for correction in the year 1982. Even assuming that it is true, the said application was not filed within ten years as per Rule 96. Therefore, this Court cannot direct the department to correct the date of birth on the basis of the representation, which was made at the fag end of his service. The Supreme Court in various decisions held that the Court should not entertain those applications to make correction of date of birth on the basis of the representation after the prescribed time, that too, at the fag end of service. They are as follows: (i) 1994 Supp (1) SCC 155 Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran (ii) Burn Standard Co. Ltd. v. Dinabandhu Majumdar (iii) , Hindustan Lever Ltd. v. S.M. Jadav and Anr. (iv) AIR 2001 SC 72 : 2001 (1) JCR 99 (SC), G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors. (v) State of U.P. and Ors. v. Gulaichi (vi) State of U.P. v. Shiv Narain Upadhyay. 11. The observations made by the Honble Supreme in the above decisions are as follows: (i) 1994 Supp (1) SCC 155 Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran 9. The Tamil Nadu Service Manual contains Rules 49 and 49-A, which are the provisions in respect of alteration and correction of the date of birth. 11. The observations made by the Honble Supreme in the above decisions are as follows: (i) 1994 Supp (1) SCC 155 Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran 9. The Tamil Nadu Service Manual contains 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 persons governed by those rules, procedures prescribed therein have to be strictly followed, including the time limit prescribed for making such an application...whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that 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.... (ii) , Burn Standard Co. Ltd. v. Dinabandhu Majumdar 12. ...It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment.... 10. ...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 the employers, placing reliance on the so-called newly-found material.... 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 this retirement." (iii) , Hindustan Lever Ltd. v. S.K. Jadav and Anr. 9. ...It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth.... In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12.6.1927 and also mentioned that his age was 25 years. 9. ...It is settled law that at the fag end of career, a party cannot be allowed to raise a dispute regarding his date of birth.... In the application, which had been filed by the 1st respondent he himself had given his date of birth as 12.6.1927 and also mentioned that his age was 25 years. On the basis of this application and the Matriculation Certificate the Manager had issued a certificate. Thereafter his service record, Provident Fund Booklet and even the Annual Reports contained the 1st respondents date of birth as 12.6.1927. It is impossible to believe that for all these years the 1st respondent was not aware of the date of birth in his service record or the Provident Fund Booklet. (iv) AIR 2001 SC 72 : (2001) 1 JCR 99 (SC), G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors. 17. The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters Courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly which will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature.... (v) State of U.P. and Ors. v. Gulaichi While examining the grievance of a public servant in respect of correction of his date of birth, 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 make 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 application must be within at least a reasonable time, (para 9) (vi) State of U.P. v. Shiv Narain Upadhyay 7. 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 objection 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. 12. The above decisions would give the specific mandate with reference to the entertaining of the application, requesting for correction of date of birth: (i) Whenever any application is filed by the persons for correction of date of birth, governed by the Service Rules, the procedures prescribed therein have to be strictly followed including the time limit for making such an application. (ii) It is common knowledge that every establishment has its. own set of service conditions governed by Rules, therefore, ordinarily High Court should not, in exercise of the discretionary writ jurisdiction, entertain a writ petition by the employee of the Government or its instrumentality towards the fag end of his service seeking correction of his date of birth. (iii) It is impossible to believe that for all these years the employee was not aware of the date of birth recorded in his service record. (iii) It is impossible to believe that for all these years the employee was not aware of the date of birth recorded in his service record. While determining dispute In such matters, Court should bear in mind that the change of date of birth, long after joining service, particularly, when the employee is due to retire shortly, which will upset the date recorded in the service records, should not generally be accepted. (iv) While examining the grievance of the public servant in respect of correction of his date of birth, unless a clear case, on the basis of materials, which can be held to be conclusive in nature, is made out, that too, within reasonable time, as provided under the Rules governing the service, the Court should not issue any direction regarding the correction of date of birth. (v) Before any such direction is issued by the Court, the Court must be fully satisfied that there has been real injustice to the person concerned, that his claim for correction of his date of birth has been made within the time fixed by any Rule or Order. If no Rule is framed, prescribing the period within which such application has to be filed, then such application must be within a reasonable time. 13. The above mandate would clearly indicate that as per the governing Rule 96, the application had to be filed by the petitioner within ten years from the date of his entering Government Service. Admittedly, this is not done. Since the mandatory requirement has not been fulfilled, the act of the department, rejecting the application that was made at the fag end of his service cannot be found fault with. 14. Therefore, in this case, the question referred to the Full Bench with reference to the conclusive proof of the age does not arise as the application, itself, was made beyond the period of time prescribed by the Rule. Therefore, the writ petition is dismissed. Narendra Nath Tiwari and D.P. Singh, JJ. 15. I agree.