Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 115 (MP)

MIRZA SHARIF BEG v. STATE OF M P

2009-01-23

RAJENDRA MENON

body2009
Judgment ( 1. ) PETITIONER has filed this petition challenging the order annexure P-2, dated 26/09/2008, issued by the Jail Superintendent, Central Jail, indore, informing the petitioner that in the service record maintained, his date of birth is recorded as 17/01/1949 and, therefore, he shall attain 60 years on 31/01/2009 and will be superannuated. ( 2. ) IT is the case of the petitioner that his date of birth is wrongly mentioned in the service book, the correct date of birth is 01/01/1960 and, therefore, he shall attain the age of superannuation only on 01/01/2020 and, therefore, his retirement is not sustainable. Facts that have come on record indicates that petitioner entered the service on 06/01/1977 and in his service book the date of birth is entered as 17/01/1949, it is the case of the petitioner that he had submitted the school leaving certificate and mark sheet of Class VIIth which was issued to him on 31/07/1974, vide Annexure P-1 and in this document his date of birth is recorded as 01/01/1960, it is his case that when he has received the notice Annexure P-2, he filed an affidavit annexure P-3, pointing out that the date of birth is incorrectly entered in the service book and the same be corrected, this request of the petitioner was rejected vide Annexure P-4, on 21/10/2008 and it is stated that thereafter petitioner had represented and filed various documents to show that his date of birth is 01/01/1960, but as his claim is not being considered, petitioner has filed this petition. ( 3. ) SHRI V. P. Nema, opposes the aforesaid prayer and submits that petitioner is challenging his retirement only when he has been issued with the notice of retirement, which is not permissible under M. P. Financial Code, Part I, Rule 84 and 85, only clerical mistake in the service book can be corrected and as there is no provision for correction of date of birth, as claimed by the petitioner, it is argued that the correction cannot be permitted, accordingly, respondents seek for dismissal of this petition. ( 4. ( 4. ) HAVING heard learned counsel for the parties and on a perusal of the record it is clear that petitioner had entered the service on 06/01/1977 and at the time of entry into service, in the service book his date of birth is recorded as 17/01/1949, from 1977 onwards petitioner continued to work and it was only after Annexure p-2 was issued on 26/09/2008, that he raised objections with regard to correction of his date of birth. Nothing is brought to the notice of this Court to indicate that petitioner has ever sought for correction during his entire service period, petitioner seeks correction now on the ground that while entering service on 06/01/1977, he had produced the school leaving certificate issued by Ballabhdas Ishwardas Subhash higher Secondary School, Khandwa, on 31/07/1974, in which his date of birth is recorded as 01/01/1960, it is stated that he had also filed a mark sheet of class Vllth, in para 5. 3 he shows this document as Annexure P-1. The document annexure P-1 is seen to be a duplicate transfer certificate issued by Shri Ballabhdas ishwardas Subhash Higher Secondary School, Khandwa, which indicates that the petitioner was a student of this institute from 20/08/1973 to 31/07/1974, even though in this certificate his date of birth is recorded as 01/01/1960, this certificate is shown to have been issued on 20/08/1988, if this certificate was issued only on 20/08/1988, it is not known as to how petitioner claims that the school leaving certificate is dated 31/07/1974. However, 31/07/1974, is the date of leaving of the school and there is nothing in the certificate to indicate that it was issued on the same date. On the contrary the seals and the date affixed after the signature at three places, in Annexure P-1, indicates that it was issued on 20/08/1988, i. e. after more than 10 years of petitioners entry into service. That being so, contention of the petitioner that he has produced the certificate is not correct. Even though in para 5. 3 petitioner make a contention that in the mark sheet of Class Vllth also his date of birth is recorded, the said mark sheet is not available on record. That being so, contention of the petitioner that he has produced the certificate is not correct. Even though in para 5. 3 petitioner make a contention that in the mark sheet of Class Vllth also his date of birth is recorded, the said mark sheet is not available on record. The other documents filed by the petitioner in support of his date of birth are his own affidavit annexure P-3, the claim made by him in his representation, Annexure P-5 on 03/10/2008 and transfer certificate issued on 01/12/2008, these documents are obtained after the notice of retirement is issued and cannot be considered to be authentic documents for the purpose of holding that the petitioners date of birth is 01/01/1960. Thereafter, petitioner has filed a sheet from the admission discharge register, said to have been maintained by Hakimia Higher Secondary School Burhanpur, Annexure P-11, this is an attested document and it shows that petitioner had studied in this institute from class Vlth to class Vllth between 10/08/1971 to 09/12/1972, if petitioner was a student of class Vllth on 09/12/1972, as can be seen from Annexure P-11, then it is not known as to how he was again studying in class Vllth in Ballabhdas Ishwardas Subhash Higher Secondary School, Khandwa, as the certificate Annexure P-1, issued by this School shows petitioner to be a student of class Vllth (Hindi Medium) during the year 1974 and promoted to class viiith, However, both the certificates produced with the petition are issued after the notice of retirement is issued and, therefore, this is a case where petitioner is seeking correction of his date of birth and the authenticity and genuineness of the documents forming basis for this claim becomes highly doubtful. It is in the light of the aforesaid fact that have come on record that this Court is required to consider the matter. ( 5. ) THE principles for reviewing and permitting correction of date of birth of an employee and the scope of judicial review is considered in various cases, in the case of State of U. P. and Ors. Vs. Gulaichi (Smt.), 2003 6, SCC, 483, it has been so laid down by the Supreme Court in para 8 and 9 : 8. ) THE principles for reviewing and permitting correction of date of birth of an employee and the scope of judicial review is considered in various cases, in the case of State of U. P. and Ors. Vs. Gulaichi (Smt.), 2003 6, SCC, 483, it has been so laid down by the Supreme Court in para 8 and 9 : 8. Normally, in public service, with entering into the service, even the date of exit, which is said as 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 concerned Administrative Tribunals, or even filing suits for adjudication as to whether the date 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. 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 v. Daksha Prasad Deka, 1970 (3) SCC 624 , this Court said that the date of the 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 Government of Andhra Pradesh v. M. Hayagreev Sarma, 1990 (2) SCC 682 , the A. P. 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: "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, Bhadrak (Randb) Division, Orissa and others v. Rangadhar Mallik, 1992 (3) SCT 518 (SC) : 1993 supp. (1) SCC 763, 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 November 16, 1968. On September 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 november 27,1938 instead of November 27,1928 should not have been accepted on basis of the documents produced in support of the said claim, because the date of birth was recorded as per 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 November 27, 1928. The said respondent did not take any step nor made any representation for correcting his date of birth till September 9,1986. The said respondent did not take any step nor made any representation for correcting his date of birth till September 9,1986. In case of Union of India v. Harnam Singh, 1993 (3) SCT 120 (SC) : 1993 (2) SCC 162 the position in law was again reiterated and it was observed : "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. 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 case for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts 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 birth. 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 make a declaration on the basis of materials which make such claim only plausible. Before any such direction must be 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 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. 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. 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. (Emphasis Supplied) ( 6. ) THE aforesaid judgment is again considered and followed in the case of State of Gujarat and Ors. Vs. Vali Mohd, Dosabhai Sindhi, (2006) 6, SCC, 537. ( 7. ) AS far as the Rules in question are concerned, it may be seen that learned counsel for the petitioner has not relied on any statutory rules, which permits correction of date of birth at such a belated stage. Vs. Vali Mohd, Dosabhai Sindhi, (2006) 6, SCC, 537. ( 7. ) AS far as the Rules in question are concerned, it may be seen that learned counsel for the petitioner has not relied on any statutory rules, which permits correction of date of birth at such a belated stage. On the contrary the rule relied upon by the respondents for rejecting the claim of the petitioner as contained in annexure P-4, indicates that correction in date of birth is permissible only if there is clerical error in the service book and no other correction is permissible. Once the date of birth of the petitioner was recorded as 17/01/1949 according to petitioners own showing in the service book on 06/01/1977, petitioner cannot seek correction in the absence of any statutory provisions being pointed out permitting such a correction. That apart when the principles laid down by the Supreme Court in the cases referred to hereinabove prohibits correction of date of birth at such a belated stage, when the employee is in the verge of retirement and when the documents adduced for seeking correction do not indicate without any doubt that the date of birth of the petitioner is the one as claimed by him, interference into the matter is not permissible. ( 8. ) A Division Bench of this Court considered these questions in the case of girish Nath Vs. Union of India, 2005 (1), M. P. L. J. , 233, in the said case after taking note of the principles laid down in the case of Gulaichi (Supra) so also in the case of Union of India Vs. Harnam Singh, AIR, 1993 (2), SCC, 162, it has been held by the learned Division Bench in para 6-7 as under :- "the petitioner did not make any effort for change of date of birth within a reasonable time. Belatedly he approached the respondents for correction of date of birth in service record. The basis for the claim for correction of date of birth is the educational certificate. Why this certificate was not produced at the time of entry into the service record is not explained. The petitioners belated request was rightly rejected by the respondents. The Tribunal after considering the facts, and following the law laid down by the Apex Court in the case of Harnam Singh (Supra) dismissed the petition. Why this certificate was not produced at the time of entry into the service record is not explained. The petitioners belated request was rightly rejected by the respondents. The Tribunal after considering the facts, and following the law laid down by the Apex Court in the case of Harnam Singh (Supra) dismissed the petition. In view of the settled legal position extracted above, we do not find any merit in the contentions to interfere with the decision of the Tribunal. ( 9. ) FROM a complete reading of the aforesaid judgment it is clear that application seeking correction of date of birth submitted by an employee has to be considered by this Court not only keeping in view the interest of employee but to adverse chain reaction, it has into the entire system and the suffering and un-repairable injuries to the long list of co-employee. ( 10. ) KEEPING in view the totality of facts, the circumstances and the principles laid down by the Supreme Court it is clear that prayer made for correction of date of birth can be accepted by Court or Tribunal only when prayer is made within a reasonable time and it is shown that the employee concerned has cogent and irrefutable proof and evidence available with him which warrants correction, in the present case, none of the aforesaid circumstances are in existence at the very fact that petitioner is seeking correction in his date of birth at the fag end of the career when the notice of superannuation is issued after he had kept quite for more than 31 years while he was in service. That apart the material adduced by the petitioner on the basis of which correction is sought does not impress this court and the nature of the evidence adduced is not such that it thrust credence to petitioners contention i. e. his date of birth is 01/01/1960, if petitioner was in possession of all these documents evidencing his correct date of birth, his silence for the long period of 33 years, disentitles him from seeking indulgence and, relief from this Court exercising jurisdiction under Article 226 of the Constitution. That apart for the reasons already indicated hereinabove the documents produced are mostly those which are obtained after the impugned notice Annexure P-2 was issued and the genuineness becomes doubtful for the reasons already indicated in para 4 above, considering the totality and the facts and circumstances of the case this Court does not find any merits in the matter warranting admission of this petition. ( 11. ) ACCORDINGLY, finding no case made out for interference petition stands dismissed.