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2013 DIGILAW 1003 (HP)

Anand Kumar Dhiman v. STATE OF H. P.

2013-12-06

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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JUDGEMENT DEV DARSHAN SUD, J. - 1. HEARD. 2. THE petitioner challenges Annexures P-5 and P-11 whereby his request for correction of his date of birth in his service record by changing the same from 15.8.1959 to 30.12.1960 has been declined. Learned counsel places reliance on clause-(b) of Note 6 to Rule 56 of the Fundamental Rules and Supplementary Rules providing inter alia:- "Note-6 The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the Appropriate Authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the Appropriate Authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if (a) a request in this regard is made within five years of his entry into Government service; (b) it is clearly established that a genuine bona fide mistake has occurred; and (c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service." 3. LEARNED counsel submits that according to this Rule, his case falls within clause-(b) supra and therefore, his date of birth was required to be rectified. 4. WE have heard learned counsel for the parties and have gone through the record of the case. On the first submission all that we need say is that we have perused the record and find that the order has been passed by the competent authority and has been conveyed to the petitioner herein. 4. WE have heard learned counsel for the parties and have gone through the record of the case. On the first submission all that we need say is that we have perused the record and find that the order has been passed by the competent authority and has been conveyed to the petitioner herein. On the second aspect we cannot accept the submission made on behalf of the learned counsel for the petitioner. 5. IN Mohd.Yunus Khan vs. U.P. Power Corporation Limited and Others, (2009) 1 SCC 80 , the case relied upon by the petitioner, the Supreme Court holds that the correction in the date of birth can be made at any time in case it is the mistake of the employer. 6. ADVERTING to the other submissions made that the case is squarely covered by clause-(b) supra we note that it cannot be read in isolation but has to be read in conjunction with clause-(a). We need not multiply precedent that the law frowns on resort to correction of date of birth of an employee on his eve of superannuation. In State of Punjab and Others vs. S.C.Chadha, (2004) 3 SCC 394 , the Supreme Court holds:- "11. An application for correction of the date of birth should not be dealt with by the Courts, Tribunal 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 cases 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. 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 clinching 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 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. 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. The position was succinctly stated by this Court in the above terms in The Secretary and Commissioner Home Department v. R.Kirubakaran, 1994 Supp (1) SCC 155." 7. THIS principle was in fact laid down in State of U.P. and Others vs. Gulaichi (Smt.), (2003) 6 SCC 483 . 8. IN this case what we find is that it is not the mistake of the employer, but that of the petitioner himself who has moved for correction of the entry in the date of birth on the basis of some school record when he was in the primary school. We do not find any satisfactory explanation as to why the mistake could not be discovered earlier by the petitioner who was quiet happy with the state of affairs as it existed. We find no merit in this writ petition which is dismissed. No order as to costs. All miscellaneous applications are disposed of. Applications are disposed of.