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Madhya Pradesh High Court · body

2012 DIGILAW 527 (MP)

Chintaman Masulkar v. State of M. P.

2012-05-11

U.C.MAHESHWARI

body2012
JUDGMENT : The petitioner working as Patwari in the revenue department of the State of M. P. has filed this petition under Article 226 of the Constitution of India for issuing appropriate writ in the nature of mandamus directing the respondents/authorities to correct his date of birth as "5-5-1954" at the place of "10-4-1952" in the service record with a further direction to extend him all : consequential benefits accordingly. 2. The facts giving rise to this petition in short are that the petitioner was appointed on the post of Patwari in the service of respondent No. 1 vide order dated 3-1-1986 (Annexure P/5). In connection of the aforesaid appointment, the requisite informations including the date of birth "10-4-1952"were given by the petitioner. The same date of birth i.e. 10-4-1952 was mentioned in the mark-sheet of his Higher Secondary School Examination of 1973 (Annex.P/3). Pursuant to aforesaid information of the petitioner, in his service book and record, his date of birth "10-4-1952" was recorded and since then the same is coming in the record. | After completing the service of near about 25 years, the petitioner has come to this Court with the case that near about year 2009 from the Certificate of Primary School Education of the year 1966 (Annex.P/1) and the School Leaving Certificate issued on 12-10-1988 with the signature of the Head Master of the concerning school (Annx.P/2) in which his date of birth "5-5-1954" is mentioned, he came to know about his correct date of birth and the aforesaid mistake of supplying the wrong date of birth at the time of entering in the service, on which, immediately along with copy of the aforesaid Annexures P/1 and P/2, he submitted his representation (Annex.P/6) in the office of the respondents/authorities on 2-6-2009 to correct his date of birth as "5-5-1954" and since then such representation has neither been considered nor his date of birth has been changed in the service record, on which, the petitioner has come to this Court with this petition. 3. In the return of the respondents, it is stated that the petitioner, according to his own case joined the aforesaid service in the year 1986 and the aforesaid representation (Annex.P/6) along with Annexures P/1 and P/2 has been made in the year 2009. It is further stated that in this regard, the District Education Officer, Balaghat has conducted an enquiry. In the return of the respondents, it is stated that the petitioner, according to his own case joined the aforesaid service in the year 1986 and the aforesaid representation (Annex.P/6) along with Annexures P/1 and P/2 has been made in the year 2009. It is further stated that in this regard, the District Education Officer, Balaghat has conducted an enquiry. According to its report dated 16-3-2011 (Annex.R/1), the date of birth of the petitioner in 6th Class certificate and mark-sheet was found to be 10-4-1952 while in the Dakhil Kharij/Admission Register, the same was mentioned as 5-5-1954. In such premises, the date of birth 10-4-1952 mentioned by the petitioner, at the time of entering in the service, based on Higher Secondary School certificate and the same has been accepted since long for years together by him, cannot be corrected. As such, in recording his date of birth 10-4-1952 in the service record, no clerical error was committed by any official of the respondents No. 1 to 4. As per further averments, in the available factual matrix, in the light of Rule 84 of the M. P. Finance Code Bill also (Annx.R/2), such correction could not be carried-out at the fag end of the service or at the eve of retirement of the petitioner in near future. If such alteration is directed to be carried out then it would cause prejudice to the interest of the respondents department and prayer for dismissal of the petition has been made. 4. Having heard the counsel at length on admission as well as for final disposal of the matter, keeping in view their arguments, I have gone through the petition and the return along with the annexed papers so also the case law cited by the counsel of the parties. It is undisputed fact on record that initially the petitioner entered in the service as Patwari on the basis of the mark-sheet of Higher Secondary School the part of Annexure P/3 in which his date of birth "10-4-1952" has been mentioned and accordingly at his instance, such date of birth was recorded in his service book and record. Thereafter, till 2-6-2009, the same was neither objected nor any steps for it's modification or correction was taken on behalf of the petitioner. Thereafter, till 2-6-2009, the same was neither objected nor any steps for it's modification or correction was taken on behalf of the petitioner. Besides this in the progress book of the petitioner of the year 1969 (Annex.p/4) of 8th class, issued by Shaskiya Madyamik Shala, Ponia his date of birth "10-4-1952" is mentioned. Even in his mark-sheet of Class 6th the part of Annexure P/3 issued in the year 1966-67 also his date of birth "10-4-1952" is mentioned. 5. Now, the petitioner has come to this Court for appropriate direction to change his date of birth from "10-4-1952" to "5-5-1954" on the basis of the photocopy of the duplicate certificate of the Primary School Examination of district Balaghat (Annexure P/1) issued by the District Education Officer as also the photocopy of the School Leaving Certificate issued by the Head Master of some school of Balaghat vide dated 12-10-1988 (Annexure P/2) in which his date of birth "5-5-1954" is mentioned. 6. Initially in the course of the argument, on asking the petitioner's counsel regarding availability of the original mark-sheet of Annexure P/1, on which, he could not satisfy the Court regarding existence of the original certificate Annexure P/1. Apart this, it is apparent from the School Leaving Certificate issued on 12-10-1988 (Annexure P/2) that the same was available with the petitioner since long while the aforesaid duplicate mark-sheet (Annexure P/1) was obtained by the petitioner on 1-8-2005. In spite that to correct such date of birth in the service record for years together on the basis of such certificate and mark-sheet Annexures P/1 and P/2, no step was taken by the petitioner upto the year 2009 and now, near about at the eve of his retirement, at the fag end of service, he wants to change his date of birth in the service record contrary to his mark-sheet of Higher Secondary School (part of Annex.P/3) which is not permissible under the existing Rules. 7. In the aforesaid factual matrix, the correction in the date of birth of the petitioner in his service book as prayed is not permissible under Rule 84 of M. P. Finance Code Bill. Such rule reads as under :- "Rule 84. 7. In the aforesaid factual matrix, the correction in the date of birth of the petitioner in his service book as prayed is not permissible under Rule 84 of M. P. Finance Code Bill. Such rule reads as under :- "Rule 84. Every person newly appointed to a service or a post under Government should at the time of the appointment declare the date of his birth by the Christianera 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 85 should be recorded in the history of service; Service book or any other record that may be kept in respect of the Government servant's service under Government. The date of birth, once recorded in this manner, must be deemed to be absolutely conclusive, and except in the case of a clerical error no revision of such a declaration shall be allowed to be made at a later period for any purpose whatsoever." In view of the aforesaid rule, on subsequent request of the petitioner, contrary to his service book prepared on the information and documents submitted by him in the department at the time of entering in the service, his date of birth could not be directed to be changed. 8. My aforesaid approach is also fortified with the decision of the Apex Court in the matter of State of M. P. vs. Premlal Shrivas, AIR 2011 SC 3418 in which considering the similar circumstances, taking into consideration the aforesaid Rule 84 of the M. P. Finance Code Bill, it was held as under :- 14. It is manifest from a bare reading of Rule 84 of the M.P. Financial Code that the date of birth recorded in the service book at the time of entry into service is conclusive and binding on the government servant. It is clear that the said rule has been made in order to limit the scope of correction of date of birth in the service record. However, an exception has been carved out in the rule, permitting the public servant to request later for correcting his age provided that incorrect recording of age is on account of a clerical error or mistake. However, an exception has been carved out in the rule, permitting the public servant to request later for correcting his age provided that incorrect recording of age is on account of a clerical error or mistake. This is a salutary rule, which was, perhaps, inserted with a view to safeguard the interest of employees so that they do not suffer because of the mistakes committed by the official staff. Obviously, only that clerical error or mistake would fall within the ambit of the said rule which is caused due to the negligence or want of proper care on the part of some person other than the employee seeking correction. Onus is on the employee concerned to prove such negligence. 15. In Commissioner of Police, Bombay and anr. vs. Bhagwan V. Lahane, this Court has held that for an employee seeking the correction of his date of birth, it is a condition precedent that he must show, that the incorrect recording of the date of birth was made due to negligence of some other person, or that the same was an obvious clerical error failing which the relief should not be granted to him. observed that a bona fide error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. 16. As aforesaid, in the instant case, no evidence has been placed on record by the respondent to show that the date of birth recorded as 1st June, 1942 was due to the negligence of some other person. He had failed to show that the date of birth was recorded incorrectly, due to want of care on the part of some other person, despite the fact that a correct date of birth had been shown on the documents presented or signed by him. We hold that in this fact situation the High Court ought not to have directed the appellants to correct the date of birth of the respondent under Rule 84 of the said Rules. 17. In view of the foregoing discussion, the decision of the High Court, holding that the respondent was entitled to get his date of birth corrected in the service record, cannot be sustained. 17. In view of the foregoing discussion, the decision of the High Court, holding that the respondent was entitled to get his date of birth corrected in the service record, cannot be sustained. Resultantly, the appeal is allowed and the impugned judgment is set aside, leaving the parties to bear their own costs throughout." 9. Apart the above, the person like the petitioner could not be permitted to change his date of birth in the service record at the eve of his retirement on the principle of estoppel enumerated under section 115 of the Evidence Act also. Once the petitioner, by stating his date of birth "10-4-1952" entered in the aforesaid service as Patwari and such date of birth was recorded in the service record, the same could not be changed. 10. In the aforesaid premises, I have not found any substance in the petition for invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India to direct the respondents/authorities to change the date of birth of the petitioner in the service record. Consequently, the petition is hereby dismissed. Petition dismissed.