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Himachal Pradesh High Court · body

2013 DIGILAW 142 (HP)

Kanshi Ram v. State of Himachal Pradesh

2013-03-01

RAJIV SHARMA

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JUDGMENT Per Justice Rajiv Sharma, Judge. Petitioner was enrolled in the Police Department as Constable on 20.9.1965. He was 18 years 5 months and 16 days at the time of his enrolment. According to the petitioner, his date of birth is 4.4.1949 as per the entries made in the character and service roll and he has been wrongly retired on 30.4.2005. 2. The provisional seniority list of Inspectors of Police as on 1.10.2002 was circulated on 1.10.2002. It was brought to the notice of the Director General of Police by the office of ADGP/CID on 15.6.2004 and letter dated 16.6.2004 that the date of birth of the petitioner appearing at Sr. No. 106 in the seniority list of Inspectors has been wrongly shown as 4.4.1949. The date of birth of the petitioner was 4.4.1947, recorded at the time of his appointment as constable in District Bilaspur on 20.9.1965. 3. The matter was examined by the Director General of Police. Petitioner was also heard in person by the Director General of Police. He passed the order on 11.11.2004 ordering the date of birth of the petitioner to be considered as 4.4.1947, as was initially recorded at the time of his appointment as Constable on 20.9.1965. Thereafter, petitioner filed detailed application for review of office order dated 11.11.2004. The same was rejected by the Director General of Police by passing a speaking order on 21.4.2005. Petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal by filing O.A. No.1420/2005, which was transferred to this Court and assigned CWP (T) No. 11995/2008. It was decided on 6.8.2010 and the Director General of Police was directed to decide the review petition as per the grounds taken by the petitioner within a period of ten weeks. Thereafter, the Director General of Police has passed the fresh orders on 8.11.2010. 4. Mr. Dilip Sharma, learned Senior Advocate has vehemently argued that the date of birth of the petitioner is 4.4.1949 and not 4.4.1947. He has relied upon Annexure P-1 certificate issued by the Headmaster, Government Primary School Bahot-Kasol, District Bilaspur and Annexure P-2, duplicate matriculation examination certificate whereby the date of birth of the petitioner has been shown as 4.4.1949. He has also argued that S/Sh. Sukh Ram and Mangat Ram were also enrolled as Constables though they were under age. 5. Mr. Pramod Thakur, learned Additional Advocate General has supported the order dated 8.11.2010, i.e. Annexure P-15. He has also argued that S/Sh. Sukh Ram and Mangat Ram were also enrolled as Constables though they were under age. 5. Mr. Pramod Thakur, learned Additional Advocate General has supported the order dated 8.11.2010, i.e. Annexure P-15. 6. I have heard the learned counsel for the parties and have perused the record carefully. 7. Respondent-State was directed to produce the records. The record has been produced. The petitioner was enrolled as Constable, as noticed above, on 20.9.1965. In the character and service roll, in words, the date of birth of the petitioner has been shown as ‘nineteen hundred and forty seven’. However, in figures, it has been shown as 1949. It is clear to the naked eyes that figure ‘7’ has been changed to ‘9’. The first entry with regard to the qualification of the petitioner has been made by the Superintendent of Police, Bilaspur only on 26.7.1967, as per the record produced by the State. It is also clear from the original matriculation certificate of the petitioner that the date of birth has been smudged and 4.4.1949 has been mentioned. The certificate has been issued in the year 1964 and the petitioner has placed reliance on the duplicate certificate which has been issued in the year 1977. Petitioner has also not placed on record any tangible evidence to establish that his date of birth was recorded as 1949 either at the time of his admission to school or in the school leaving certificate or in the Birth and Death Register. 8. Petitioner cannot take advantage of Sukh Ram and Mangat Ram being under age also at the time of their enrolment. There is no over-writing or cutting in their date of birth. Even hypothetically, if the petitioner’s date of birth is taken as 4.4.1949, he was under age at the time of enrolment. The order passed by the Director General of Police is self-contained and all the pleas raised by the petitioner have been taken into consideration, as ordered by this Court. Consequently, there is no illegality in the action of the respondent-State retiring the petitioner on 30.4.2005 by taking his date of birth as 4.4.1947. The primacy has to be given to the date of birth recorded in the character and service roll, in which the date of birth of the petitioner has been recorded as 4.4.1947. Consequently, there is no illegality in the action of the respondent-State retiring the petitioner on 30.4.2005 by taking his date of birth as 4.4.1947. The primacy has to be given to the date of birth recorded in the character and service roll, in which the date of birth of the petitioner has been recorded as 4.4.1947. Petitioner has been given full opportunity to explain his position by the competent authority. 9. Their Lordships of the Hon’ble Supreme Court in State of U.P. and another Vs. Shiv Narain Upadhyaya (2005) 6 Supreme Court Cases 49 have held that the date of birth, as recorded in service book should be decisive and correction thereof can be sought only in accordance with procedure prescribed and within the time fixed under rules or order or within reasonable time in absence of any rules or order. Their Lordships have held as under: “6. 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, and 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 waking up from their supine slumber raise a dispute about their service 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 dates of birth recorded were correct or not. 7. 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. 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." 9. 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. 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 loose 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 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. 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. 14. Above being the position the High Court was clearly in error in holding that the date of birth of the respondent-employee was 1.9.1939, contrary to what has been recorded in the service book. We find that the respondent-employee had rendered service till the order dated 31.1.1991 was passed. It would not be equitable to direct refund of salary received by him upto 31.1.1991 beyond the actual date of superannuation i.e. 30.9.1990. However, the period beyond the actual date of superannuation i.e. from 30.9.1990 to 31.1.1991 shall not be reckoned towards his retiral benefits.” 10. Their Lordships of the Hon’ble Supreme Court in Punjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg and another (2010) 6 Supreme Court Cases 482, in a case where an application was filed for correction of date of birth in the service record, have held that neither the High Court nor the State Government have the power, jurisdiction or authority to entertain representation after more than twelve years of entering into service for change of date of birth. In this case, the petitioner had applied for correction of date of birth to Punjab University after ten years of entering into judicial service. In this case, the petitioner had applied for correction of date of birth to Punjab University after ten years of entering into judicial service. The Syndicate of University directed the change of date of birth recorded in matriculation certificate. Thereafter, representation was made to the State Government for making corresponding changes in the service book. The State Government in consultation with High Court rejected the prayer for correction. The trial Court, first appellate court and High Court held that the rejection of the representation was illegal and void. Their Lordships of the Hon’ble Supreme Court on analysis of the said rule held that declaration of age made at time or for purpose of entry into Government service is conclusive and binding on government servant. Their Lordships have held as under: “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. 15. 15. 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. 16. 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. 17. This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam Singh (supra), this Court considered the question whether the employer was justified in declining the respondent’s request for correction of date of birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original application filed by him. While reversing the order of the Tribunal, this Court observed: “A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. 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. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC pp. 625-26, para 4) “... This Court said: (SCC pp. 625-26, para 4) “... The date of compulsory retirement under F.R. 56(a) 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. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.” 11. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.