Prabhu Ram v. State of Himachal Pradesh through Collector, Bilaspur, H. P.
2014-04-22
SANJAY KAROL
body2014
DigiLaw.ai
JUDGMENT : - Sanjay Karol, J. (Oral) This is the plaintiff’s Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff’s Civil Suit No. 98/1 of 2009, titled as Prabhu Ram vs. State of H.P. & another, stands dismissed by Civil Judge (Junior Division) Bilaspur, District Bilaspur, H.P., in terms of judgment and decree dated 6.3.2013. Such findings of fact, judgment and decree stands affirmed by the District Judge, Bilaspur, H.P., in Civil Appeal No. 14 of 2013, titled as Prabhu Ram vs. State of H.P. & another, filed by the plaintiff. Thus, the present appeal arises out of concurrent findings of fact. 2. The issue in the present appeal primarily is with regard to correction of plaintiff’s date of birth, entered in his service book. According to the plaintiff he was born in the year 1952, whereas, according to the defendants-State he was born on 4.8.1947 which date is entered in the service record. Undisputedly service record of the plaintiff was prepared in the year 2002 and till the time of filing of suit, in the year 2009, he did not raise any objection with respect thereto. 3. Based on the material so placed on record by the parties, Courts below concurrently held the plaintiff not to have established his correct date of birth to be 4.8.1952. Age of parents of the plaintiff and his siblings was considered while returning such findings of fact. Significantly, respondents instituted an inquiry which was also against the plaintiff. Pariwar Register (Ext. PW-1/A), on the basis of which declaration with regard to plaintiff’s age is sought, has not been proved in accordance with law. 4. The Division Bench of this Court in State of H.P. & others vs. Shiam Lal Sharma, 2008 (2) Shim. L C 385 by taking into account several decisions of the apex Court has held as under:- “7. The decision in State of Punjab and others vs. S.C. Chadha, 2004(2) SLR 741 , shows that it was observed by their Lordships that the mere fact that the employees are given one time opportunity to get their dates of birth corrected does not in itself permit overlooking long delay. In the absence of any explanation and unrefutable evidence, the delayed requests must be rejected. It was further held that where no limit is prescribed, request made only within a reasonable time can be entertained. 8.
In the absence of any explanation and unrefutable evidence, the delayed requests must be rejected. It was further held that where no limit is prescribed, request made only within a reasonable time can be entertained. 8. The decision in State of Gujarat and others vs. Vali Mohmed Dosabhai Sindhi, JT 2006(6) SC 468, shows that the respondent had not taken any action for correcting the date of birth while in service, it was held that he was not entitled to any relief despite production of evidence subsequently. 9. Our attention has been drawn to a judgment of Division Bench of this Court in which one of us was a Member in case State of Himachal Pradesh vs. Mor Dhawaj,CWP No. 1006 of 2007, decided on 7.4.2008, wherein a reference was made to various decisions of the Apex Court in which it was held that the employee should apply for correction within five years, otherwise he will loose his right to make such application, which observations were made by the Apex Court in State of T.N. vs. T.V. Venugopalan, (1994) 6 Supreme Court Cases 302. We may refer to another decision of the Apex Court, in which it was observed that any direction for correction adversely affects chances of promotion to juniors also and, therefore, the correction may be sought within a reasonable time. The observations made in State of U.P. and others vs. Gulaichi (Smt.),(2003) 6 Supreme Court Cases 483, may be reproduced as under: “It shows that it was observed by the Apex Court that Court should keep in mind that any direction for correction of date of birth of a public servant may adversely affect chances of promotion to junior to him. The period within which the correction can be sought, if prescribed in statutory rules or in absence thereof, under administrative instructions, should be followed and in absence of such rules or instructions, correction should be sought within a reasonable time.” 10. it was held in that case by the Division Bench that the learned SAT should not have entertained such application at such a belated stage when the respondent was due to retire within a period of about two years. In the present case, we have not been informed about the date of retirement of the respondent since he joined in 1960 he may have retired by this time also. 11.
In the present case, we have not been informed about the date of retirement of the respondent since he joined in 1960 he may have retired by this time also. 11. A Division Bench of this Court had also considered this question in Narinder Kumar vs. Union of India and others, 2007(1) Shim. LC 274. In that case also after referring to the decision of the Apex Court in State of Gujarat and others vs. Vali Mohmed Dosabhai Sindhi, JT 2006(6) SC 468 (supra), it was observed by the Court that such requests must be made within five years of joining service. Request made at the fag end of career a few years of the retirement can never be said to be request made within a reasonable time under any circumstances. 12. It has already been held by the Apex Court in some of these decisions that the date of change of birth of an employee not only affects him but affects the persons who are due for promotion and any change made at a belated stage will affect their service prospective. To our mind, once the application has not been made within five years of joining service as per the rules prevalent at that time, no request should have been entertained by the learned Tribunal and, therefore, the order passed by the learned Tribunal cannot be said to be in accordance with law and as such, is liable to be set aside and is accordingly set aside.” 5. The ratio is squarely applicable to the instant facts. 6. Consequently, I do not find any reason or ground sufficient enough to interfere with concurrent findings of fact recorded by the Courts below. It cannot be said that the judgments passed by the Courts below are based on incorrect and incomplete appreciation of facts and material placed on record by the parties or that the same is perverse which has resulted in miscarriage of justice. No question of law, much less substantial question of law arises for consideration in the present appeal. The appeal is accordingly dismissed. Pending applications, if any, also stand disposed of accordingly.