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Himachal Pradesh High Court · body

2011 DIGILAW 640 (HP)

Satish Rathor v. State of Himachal Pradesh

2011-02-24

RAJIV SHARMA

body2011
JUDGMENT : Rajiv Sharma, Judge. Petitioner was appointed as GDO-II (Medical Officer) in the respondent-Department on 12.8.1978. His date of birth in service book was recorded as 22.8.1948 on the basis of Annexure A-2, i.e. Higher Secondary Certificate. He made representation for the first time on 11.8.2006 (Annexure A-1) for the correction of date of birth from 22.8.1948 to 22.8.1949 to the respondent. 2. Mr. Dilip Sharma has strenuously argued that the date of birth of his client recorded in the Higher Secondary Certificate is wrong and according to him as per Annexure A-3, date of birth of his client is 22.8.1949. 3. Mr. Anshul Bansal has vehemently argued that the representation made by the petitioner was belated since the same has been made after 28 years of entering into the Government service. He also contended that in the service book, date of birth is recorded on the basis of Higher Secondary Certificate, Annexure A-2. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. A bare perusal of Annexure A-2 reveals that the petitioner’s date of birth is recorded as 22.8.1948. Petitioner has relied upon Annexure A-3 obtained from the Headmaster, Government Centre Primary School, Chaulthara, District Mandi where the petitioner’s date of birth has been recorded as 22.8.1949. 6. There is a prescribed procedure the manner in which date of birth can be changed. The application for the change of date of birth as per rule 7 of the Himachal Pradesh Financial Rules has to be submitted within a period of two years after entering into Government service. In the instant case, application, for the first time was made by the petitioner at the fag end of his service career, i.e. 11.8.2006. The same has rightly been rejected by the respondent. The petitioner’s date of birth has been recorded as 22.8.1948 on the basis of Annexure A-2 in the service book. The service book is countersigned by an employee. Petitioner has not led any tangible evidence that his date of birth has been wrongly recorded in Annexure A-2, i.e. Higher Secondary Certificate, as 22.8.1948. 7. Their lordships of the Hon’ble Supreme Court in Punjab & Haryana High Court at ChandigarhVs. Megh Raj Garg and another,2010 (6) SCC 482 have held that the entry of date of birth is to be corrected at the earliest. Their lordships have held as under: “10. 7. Their lordships of the Hon’ble Supreme Court in Punjab & Haryana High Court at ChandigarhVs. Megh Raj Garg and another,2010 (6) SCC 482 have held that the entry of date of birth is to be corrected at the earliest. Their lordships have held as under: “10. An analysis of the above reproduced rule makes it clear that the declaration of age made at the time of or for the purpose of entry into government service is conclusive and binding on the government servant. The only exception to this is that the government servant can make an application for correction of age within two years from the date of entry into service. This necessarily implies that an application made by a government servant for correction of age after two years of his entry into service cannot be entertained by the competent authority. However, the competent authority can, at any time, correct the age recorded in the service book or in the history service of a gazetted government employee if it is satisfied that the age has been so recorded with a view to give undue benefit to the employee / officer like continuance in service beyond the age of superannuation. Of course, while undertaking this exercise, the competent authority is bound to comply with the rule of audi alteram partemand give a reasonable opportunity to the concerned employee/officer to represent his cause against the proposed change in the recorded age/date of birth. In other words, while there is a complete bar to the making of an application by the government servant for correction of his recorded age after two years from the date of his entry into government service, the competent authority can make correction at any time if it is found that the age recorded in the service book is incorrect and has been so recorded with a view to enable the concerned employee to continue in service beyond the age of superannuation or gain any other advantage. 11. Undisputedly, the date of birth of respondent No.1, who joined service in March 1973 was recorded in his service book as 27.3.1936. This was done keeping in view the declaration made by him in the application form submitted for the purpose of recruitment to the service and his matriculation certificate. 11. Undisputedly, the date of birth of respondent No.1, who joined service in March 1973 was recorded in his service book as 27.3.1936. This was done keeping in view the declaration made by him in the application form submitted for the purpose of recruitment to the service and his matriculation certificate. Being a law graduate, respondent No.1 must have been aware of the date of birth i.e., 27.3.1936 recorded in his matriculation certificate and this must be the reason why he mentioned that date in the application form submitted to the Public Service Commission. If the correct date of birth of respondent No.1 was 27.3.1938 and this was supported by the certificates issued by the schools in which he had studied before appearing in the matriculation examination, then he would have immediately after joining the service made an application to the University for change of date of birth recorded in the matriculation certificate and persuaded the concerned authority to decide the same so as to enable him to move the State Government and the High Court for making corresponding change in the date of birth recorded in his service book in terms of Para 1 of Annexure-A to Chapter II of the Punjab Civil Service Rules, Volume I. However, respondent No.1 waited for more than ten years after entering into service and submitted an application dated 27.10.1983 to the University for effecting change in the date of birth recorded in the matriculation certificate by citing the school certificates as the basis for his claim. The Syndicate of the University took about one year and three months to decide the matter in favour of respondent No.1 and the date of birth recorded in the matriculation certificate was changed from 27.3.1936 to 27.3.1938 sometime in January/February 1985. Thereafter, respondent No.1 submitted representation dated 22.2.1985 to the Registrar of the High Court seeking correction in the date of birth recorded in the service book. His plea was finally rejected in January 1993. It is thus evident that respondent No.1 applied for change of the date of birth recorded in his service book much beyond the time limit of two years specified in the rule. The High Court or for that reason the State Government did not have the power, jurisdiction or authority to entertain the representation made by respondent No.1 after more than twelve years of his entering into service. The High Court or for that reason the State Government did not have the power, jurisdiction or authority to entertain the representation made by respondent No.1 after more than twelve years of his entering into service. Therefore, neither of them committed any illegality by refusing to accept the prayer made by respondent No.1 on the basis of change effected by the University in the date of birth recorded in his matriculation certificate. Unfortunately, the trial Court, the lower appellate Court and the learned Single Judge of the High Court totally misdirected themselves in appreciating the true scope of the embargo contained in the relevant rule against the entertaining of an application for correction of date of birth after two years of the government servant’s entry into service and all of them committed grave error by nullifying the decision taken by the State Government in consultation with the High Court not to accept the representation made by respondent No.1 for change of date of birth recorded in his service book. All the courts overlooked the stark reality that respondent No.1 had made application for change of date of birth recorded in the matriculation certificate after more than ten years of his entry into government service and the decision taken by the Syndicate to accept his request did not give him any cause for filing application or making representation for change of the date of birth recorded in the service book.” 8. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed.