Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 1291 (HP)

STATE OF H. P. v. SHIV LAL

2009-12-16

DEEPAK GUPTA, V.K.AHUJA

body2009
JUDGMENT V.K. Ahuja, J.- This judgment shall dispose of the civil writ petition filed by the petitioner State under Articles 226/227 of the Constitution of India against the order of the erstwhile H.P. State Administrative Tribunal, hereafter after referred to as ‘the Tribunal’, dated 1.8.2006, passed in OA(M) No.288 of 1995, titled Shiv Lal Sharma versus State of H.P. 2. Briefly stated the facts of the case, as alleged by the petitioners, are that the respondent, also referred to as the applicant, filed an Original Application before the Tribunal for correction of his date of birth entry in the service record from 12.5.1946 to 12.5.1947. The allegations made by the applicant in the Original Application were that he was appointed as JBT teacher on 20.11.1964 and had been working as such at different stations. The applicant alleged that he was posted as Teacher at Government Middle School, Chambi in the year 1989 where he had studied earlier and while checking the record, he learnt that his date of birth was 12.5.1947 and not 12.5.1946. He thereafter obtained copy of pariwar register and other documents and accordingly filed a representation to the Department for correction of his date of birth, which representation of his was rejected by respondent No.2. Thereafter, the applicant filed the Original Application before the Tribunal, which was allowed by the Tribunal. Being aggrieved by the said order of the Tribunal, the State has come up by way of the present writ petition. 3. We have heard the learned Deputy Advocate General for the State and the learned counsel for the respondent and have gone through the record of the case. 4. The submissions made by the learned Deputy Advocate General for the State/ petitioner were that the applicant filed the Original Application for correction of the date of birth entry after having been in service for about 31 years. It was pleaded that according to the Rules, the applicant could apply for correction of the birth entry within a period of 5 years of his joining service, which period was substituted by 2 years and since the application was presented after 31 years of joining of service, the applicant was not entitled to the relief granted by the Tribunal ordering correction of the date of birth entry. 5. 5. On the other hand, the learned counsel for the respondent had supported the impugned order for the reasons given therein, supplementing it with the submission that the representation was made by the applicant for correction of his birth entry not at the fag end of his career as observed by the learned Tribunal since he had still 10 years to reach the age of superannuation and, therefore, the impugned order passed by the Tribunal is not liable to be quashed. 6. Our attention has been drawn to FR 56(m) Note 6, which provides that an alteration of date of birth of a government servant can be made in case the request in this regard is made within 5 years of his entry into government service. This limitation of 5 years for seeking correction was introduced by amendment in the year 1979 vide notification, dated 30.11.1979. There was no limitation prior to the issuance of this Notification in the year 1979. In this regard, we may refer to Rule 7.1(d) of H.P. Financial Rules, which reads as under: “(d)(1) In regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Govt. service, shall as against the Govt. servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Govt. service. Govt., however, reserves the right to make a correction in the recorded age of the Govt. servant at any time against the interest of that Govt. servant when it is satisfied that the age recorded in his service book or in the history of services of a gazetted Govt. servant is incorrect and has been incorrectly recorded with the object that the Govt. servant may derive some unfair advantage there from.” 7. A reference can be made to the decision in Union of India versus Harnam Singh, AIR 1993 Supreme Court 1367, in which a reference was made to the amendment made in the year 1979. A perusal of this decision shows that their Lordships had held that according to Note 5 of the Notification, dated 30.11.1979, it is obvious that the request for correction of date of birth is required to be made by a Government servant within 5 years of his entry into government service. A perusal of this decision shows that their Lordships had held that according to Note 5 of the Notification, dated 30.11.1979, it is obvious that the request for correction of date of birth is required to be made by a Government servant within 5 years of his entry into government service. However, after the amendment of the Rules in the year 1979, a person already in service could seek correction of the date of birth entry within five years after 1979. 8. Coming to the facts of the case, the petitioner joined the service on 20.11.1964. He filed a representation for the first time, as alleged in the Original Application, on 5.1.1994. The said representation was rejected, according to the allegations made in the Original Application and the date of rejection of the said representation has not been mentioned in the Original Application. However, the applicant alleged that he was to attain the age of superannuation in 2005, meaning thereby that he had still about 10 years to retire. 9. The learned counsel for the respondent had relied upon the observations made by the Tribunal that the present Original Application has not been filed by the applicant at the fag end of his career since he had still 10 years to retire. The observations made are correct to this extent only that the Original Application had not been filed at the fag end of the career, but the Tribunal failed to consider the relevant Rules mentioned above and never considered the period of limitation prescribed under the Rules applicable to the applicant for filing such application for correction of the entry. 10. In case these Rules had been considered, it was apparent to the Tribunal that the applicant had filed the application after 15 years and the period for filing such application had expired in the year 1984. 10. In case these Rules had been considered, it was apparent to the Tribunal that the applicant had filed the application after 15 years and the period for filing such application had expired in the year 1984. This question was considered by the Apex Court in various decisions and also by a Division Bench of this Court in Narender Kumar versus Union of India and others, 2007(1) Shim.LC 274, relied upon by the learned Deputy Advocate General for the State, in which, after referring to the decision of the Apex Court in State of Gujarat and others versus Vali Mohmed Dosabhai Sindhi, JT 2006(6) SC 468, it was observed in paras 8 and 9 as under: “A perusal of the aforesaid law as laid down by the apex Court clearly shows that the request for change of the date of birth must be made within the time prescribed by the rules or if such time is not prescribed by the rules, the nsuch application must be made within a reasonable time. In the present case the rules prescribe that such request must be made within 5 years of joining service. The request made at the fag end of the career, a few years before retirement can never be said to be a request made within a reasonable time under any circumstances. The apex Court has clearly laid down that the change in the date of birth of an employee not only affects the employee concerned but it may adversely affect the rights of other employees who are the colleagues or juniors of the person who applies for correction of his date of birth. For this reason, it is imperative that the request for change of date of birth should be made at the earliest stage.” 11. Therefore, it was held that no employee can move his employer for correction of his date of birth at a belated stage since the request had been made at the fag end of the career. 12. For this reason, it is imperative that the request for change of date of birth should be made at the earliest stage.” 11. Therefore, it was held that no employee can move his employer for correction of his date of birth at a belated stage since the request had been made at the fag end of the career. 12. This question was also considered by another Division Bench of this Court in State of H.P. versus Mor Dhawaj (CWP No.1006 of 2007, decided on 7.4.2008), and after referring to the decision of the Apex Court in State of T.N. versus T.V. Venugopalan, (1994) 6 Supreme Court Cases 302, it was observed that the relevant service Rules of Tamil Nadu State and Subordinate Services Rules, 1961 provide that the application for correction of the recorded date of birth could be entertained only if made within five years after entering into service. These Rules are similar to the one referred to above in which period of limitation prescribed was 5 years and accordingly, it was held that the employee would not be permitted to challenge the entry at the fag end of his service. 13. The period of five years has been reduced to two years as per Himachal Pradesh Government Notification, dated 10th September, 1991. It was pleaded on behalf of the petitioner that this period has been reduced to two years by amending the provisions of H.P. Financial Rules, 1971, which fact has not been disputed. 14. It follows from the above discussion that an employee cannot be permitted to get his date of birth changed after the prescribed period of 5 years from joining service or the amendment of Rules in the year 1979. This assumes importance since the change will affect not only his date of retirement but it will also affect the prospects of other employees who may be due for promotion on the retirement of such an employee. It affects a number of employees and once the applicant had accepted this date of birth at the time of joining the service and did not apply for correction within the period prescribed for correction, he is not entitled to the relief even though he may have still 10 years to retire, as observed by the Tribunal. It affects a number of employees and once the applicant had accepted this date of birth at the time of joining the service and did not apply for correction within the period prescribed for correction, he is not entitled to the relief even though he may have still 10 years to retire, as observed by the Tribunal. The order by the Tribunal was not passed after referring to the relevant Rules and accordingly, we are of the opinion that the impugned order is liable to the set aside. 15. We may also mention here that in case the application for correction filed by the applicant was allowed, he would have been a minor on the date of joining of his service i.e. on 20.11.1964 and, therefore, was not eligible to be appointed as JBT teacher. Once he has shown the date of birth and made himself eligible for appointment to the post and after having taken the benefit on that basis, he cannot be permitted now to claim that the said entry was wrong, which rather goes to the extent that his initial appointment was wrong and, therefore, such request cannot be considered at a belated stage. 16. In view of the above discussion, the writ petition filed by the petitioners/State is allowed and the impugned order passed by the learned Tribunal is set aside. However, there is no order as to costs.