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Gujarat High Court · body

2015 DIGILAW 205 (GUJ)

Manjulaben Amichand Patel v. State of Gujarat

2015-02-19

C.L.SONI

body2015
JUDGMENT : 1. By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed to set aside the communication dated 11.6.2013 issued by the Director of Primary Education, and communication dated 11.6.2013 whereby the request-proposal to correct the date of birth of the petitioner was turned down. The petitioner has sought declaration that she is entitled to get her date of birth corrected from 31.5.1955 to 31.5.1956 and on the basis of date of birth of 31.5.1956, she is entitled to continue in service upto 31.5.2014 or the academic term ending in the month of October, 2014, as primary teacher. 2. The case of the petitioner is that when she joined the services as primary teacher on 2.2.1976, she had attached SSC Mark Sheet showing her date of birth as 31.5.1956. However, because of the mistake of the Department, instead of recording her date of birth as 31.5.1956, her birth of date was recorded by the department as 31.5.1955. The petitioner, when came to know about such mistake committed by the department, requested to correct such date and as per the case of the petitioner, even the District Primary Education Officer recommended for correction of birth date of the petitioner on the ground that it was the error on the part of the department in recording the incorrect birth date. As per the case of the petitioner, on the basis of her correct date of birth, the petitioner could have been continued in service till the end of term after 31.5.2014 but she is retired on 31.5.2013 based on the incorrect date of birth. 3. The petition is opposed by affidavit in reply filed on behalf of respondents No.3 and 4 mainly stating that the petitioner during her service from 1976 to 2013 has not given any application for correction in her date of birth and since as per the Government Resolution, the petitioner was required to give application for correction in the birth date within five years from the date of her joining service, the action taken to retire her with effect from 31.5.2013 is legal. 4. I have heard the learned Advocates for the parties. Mr. 4. I have heard the learned Advocates for the parties. Mr. Biren A. Vaishnav appearing for the petitioner submitted that when the petitioner entered the service of the respondent, she had attached SSC Certificate and the Mark Sheet showing her date of birth of 31.5.1956, still, her date of birth was recorded as 31.5.1955 which was a mistake of the department and when such mistake came to the notice of the petitioner and when the petitioner applied to correct such mistake, the respondents ought to have corrected such mistake without raising any technical objection. Mr. Vaishnav submitted that it is not the case of the respondents that the mistake committed by the department was ever brought to the notice of the petitioner during her service career and that after the petitioner came to know, the petitioner did not make any application. In fact, the Government Resolution for making application within five years for correction in birth date would come in the way of the petitioner only when the petitioner had her date of birth wrongly recorded and then sought correction in the birth date on the basis of some documents which were never produced by the petitioner at the time when the petitioner had entered into service. Mr. Vaishnav submitted that such is not the case with the petitioner but undisputedly it was the department which committed mistake and therefore, even at the fag end of the service career, when the petitioner had made application for correction in birth date, it was for the department to correct its own mistake. Mr. Vaishnav submitted that in fact, the District Primary Education Officer in the facts of the case recommended to make correction in the date of birth of the petitioner when it was found that the department had itself committed mistake in recording wrong date of birth of the petitioner. Mr. Vaishnav urged that since even the rules provides for correction of the mistake committed by any officer of the department in recording correct date of birth of the petitioner, the action of retiring the petitioner on the basis of incorrect birth date is illegal. 5. As against the above arguments, Learned Advocate Mr. Manish J. Patel and learned A.G.P. Mr. Yagnik appearing for the respective respondents submitted that the petitioner during her service career right from 1976 never made any application for making correction in her date of birth. 5. As against the above arguments, Learned Advocate Mr. Manish J. Patel and learned A.G.P. Mr. Yagnik appearing for the respective respondents submitted that the petitioner during her service career right from 1976 never made any application for making correction in her date of birth. They submitted that as per the Government Resolution, any employee, if wants correction in his or her date of birth, application for such purpose is required to be made within the period of five years from the date of joining the service, however, the petitioner, just before her retirement, made application for correction of birth date which was not permissible. They submitted that when there is settled procedure for making the application within the prescribed time limit and if the petitioner has failed to follow such procedure for correction in her date of birth, no illegality could be found with the action of the respondent authorities in not entertaining the request of the petitioner and in rejecting the claim of the petitioner on the basis of the date of birth recorded in the service record of the petitioner. 6. Having heard the learned advocates for the parties, it appears that there is no dispute on the fact that the correct date of birth of the petitioner is 31.5.1956. There is also no dispute on the fact that the petitioner when entered the services of the respondents, she had attached the SSC Mark Sheet, copy whereof is annexed at Annexure-B which reflects the date of her birth as 31.5.1956. As per the birth register, the date of birth of the petitioner is 31.5.1956, same birth date is also recorded in the school leaving certificate of the petitioner produced at Annexure-D collectively. When the petitioner made an application dated 2.4.2013 at annexure-C for making correction in the birth date on the basis of the above said documents, the Taluka Development Officer sent recommendation dated 1.5.2013 at annexure-F to the District Primary Education Officer respondent No.3 stating that as per the original certificates of SSC, birth register and school leaving certificate, correct birth date of the petitioner is 31.5.1956, but in her service book, date of birth recorded is 31.5.1955 which appears to be obvious clerical mistake. However, as per rule 40(2)(h) and (3) of the Gujarat Civil Services (General Conditions of Services) Rules, 2002, (“the Rules” for short), since the District Primary Education Officer has powers to correct the date of birth, the Taluka Development Officer proposed to pass necessary orders for correction of the birth date. It appears that the District Primary Education Officer sought guidance from the Director of Primary Education - respondent No.2. The Deputy Director then informed the District Primary Education Officer vide communication dated 11.6.2013 that in the case of the petitioner, since more than five years had already passed, no correction in the birth date of the petitioner could be made. However, before the aforesaid date, the petitioner was retired from service with effect from 31.5.2013. 7. It is not the case of the respondents that when the petitioner entered the service, she got recorded an incorrect date of birth or that the incorrect date of birth was recorded on the basis of any document supplied by her. Learned Advocates appearing for the respondents could not dispute that the petitioner, at the time of entering the service, had produced SSC Mark Sheet showing her date of birth as 31.5.1956 and it was a mistake of the Department to record 31.5.1955 instead of 31.5.1956 as the date of birth of the petitioner. 8. Rule 40(1)(2) and (3) of the Rules relevant for the purpose of deciding the issue reads as under:- “40. Procedure for writing the events and recording the date of birth in the service book:- (1) In the service book every step in a Government employee’s official life, including temporary and officiating promotions of all kinds, increments and transfers and leave availed of should be regularly and concurrently recorded, each entry being duly verified with reference to orders of the Department, pay bills and leave account at tested by the Head of the Office. If the Government employee is himself the Head of an Office, the attestation should be made by his immediate superior. If the Government employee is himself the Head of an Office, the attestation should be made by his immediate superior. (2) While recording the date of birth, the following procedure should be followed- (a) the date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relief on; (b) in the case of a Government employee, the year of whose birth is known but not the date, the 1st July should be treated as the date of birth; (c) when both the year and the month of birth are known but not the exact date, the 16th of the month should be treated as the date of birth; (d) in the case of a Government employee who is only able to state his approximate age and who appears to the attesting authority to be of that age, the date of birth should be assumed to be the corresponding the date after deducting the number of years representing his age from h is date of appointment; (e) when the date, month and year of birth of a Government employee are not known, and he is unable to state his approximate age, the age by appearance as stated in the medical certificate of fitness, in the prescribed Form in Appendix – III should be taken as correct, he being assumed to have completed that age on the date the certificate is given, and his date of birth reduced accordingly; (f) when once an entry of age or date of birth has been made in a service book, no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error; (g) requests made for alteration of date of birth should not be entertained after the preparation of the service book of the Government employee concerned and in any event not after the completion of the probation period or five years’ continuous service, whichever is earlier. In the case where there is no probation period, such request should not be entertained after the completion of five years’ continuous service. In the case where there is no probation period, such request should not be entertained after the completion of five years’ continuous service. (h) the date of birth may, however, be permitted to be altered at a later stage if the Government is satisfied that a bonafide clerical mistake has been committed and that it should be rectified. (3) Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book, which are obviously clerical, cases in which the correctness of the original entry is questioned on other grounds should be ref erred to a competent authority.” 9. As specifically provided in clause (f) and (h) of sub-rule (2), alteration in the entry of date of birth could be made if such entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error and the date of birth could be permitted to be altered at any stage if the Government is satisfied that a bona fide clerical mistake has been committed and that it should be rectified. As stated above, incorrect entry of date of birth in the service book of the petitioner could be said to be due to want of care on the part of some person from the department or was obvious clerical error and it was, therefore, for the concerned authority to rectify such mistake. Simply because the petitioner has brought to the notice of the concerned authority by application at belated stage would not dilute the spirit, purpose and object of the above said rules. In the facts of the case, when undisputed position has emerged that the petitioner was not responsible to get her incorrect date of birth recorded in her service book and when such was a clerical mistake of the department, limitation of five years to apply for correction of the date of birth would not apply to the case of the petitioner. 10. In the case of State of Madhya Pradesh and Others versus Premlal Shrivas reported in (2011) 9 SCC page 664, the Hon’ble Supreme Court has held and observed in paragraph 8 to 17 as under:- 8. 10. In the case of State of Madhya Pradesh and Others versus Premlal Shrivas reported in (2011) 9 SCC page 664, the Hon’ble Supreme Court has held and observed in paragraph 8 to 17 as under:- 8. It needs to be emphasized that in matters involving correction of date of birth of a Government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any Government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a Government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No Court or the Tribunal can come to the aid of those who sleep over their rights (See: Union of India v. Harnam Singh3) 9. In Home Department and Ors. v. R. Kirubakaran, indicating the factors relevant in disposal of an application for correction of date of birth just before the superannuation and highlighting the scope of interference by the Courts or the Tribunals in such matters, this Court has observed thus : (SCC pp 158-59 para 7) "7. An application for correction of the date of birth should not be dealt with by the 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 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 their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important 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 materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, 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 filed within the time, which can be held to be reasonable. 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 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 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 dates 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 for 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 merely caused injustice to his immediate junior." (Emphasis supplied) 10. In State of U.P. and Anr. v. Shiv Narain Upadhyaya, while reiterating the aforesaid position of law, this Court has castigated the practice of raising dispute by the public servants about incorrect recording of date of birth in their service book on the eve of their retirement. 11. Viewed in this perspective, we are of the opinion that the High Court committed a manifest error of law in ignoring the vital fact that the respondent had applied for correction of his date of birth in 1990, i.e., 25 years after his induction into service as a constable. It is evident from the record that the respondent was aware ever since 1965 that his date of birth as recorded in the service book is 1st June, 1942 and not 30th June, 1945. It is evident from the record that the respondent was aware ever since 1965 that his date of birth as recorded in the service book is 1st June, 1942 and not 30th June, 1945. It had come on record of the Tribunal that at the time of respondent's medical examination, his age as on 27th September, 1965 was mentioned to be 23 years and his father's name was recorded as Gayadin; and in his descriptive roll, prepared by the Senior Superintendent of Police as well, his father's name was shown as Gayadin and his date of birth as 1st June, 1942 and this document was signed by the respondent and the form of agreement known as "Mamuli Sipahi Ka Ikrarnama" was filled up by the respondent himself with the very same particulars. Therefore, it cannot be said that the decision of the Tribunal rejecting respondent's plea that it was for the first time in the year 1990, when he was promoted as Head Constable, that he noticed the error in the service record was vitiated. 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book. 13. Rule 84 of the M.P. Financial Code, heavily relied upon by the respondent reads as under :- "Rule 84. 13. Rule 84 of the M.P. Financial Code, heavily relied upon by the respondent 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 Christian era 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." 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. 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. 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. v. 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. Again, in Union of India v. C. Rama Swamy and Ors.6, it has been 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. 17. 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.” 11. As has been observed by the Hon’ble Supreme Court in above referred decision, when rules carve out exception for correction of the date of birth wrongly recorded on account of clerical error or mistake and the employee proves that the negligence was on the part of the department in recording incorrect date of birth, correction of the date of birth could be permitted. As stated above, it is not in dispute that it was on account of mistake or negligence on the part of the department to record the incorrect date of birth of the petitioner. As stated above, it is not in dispute that it was on account of mistake or negligence on the part of the department to record the incorrect date of birth of the petitioner. In such view of the matter, the respondents ought not to have rejected the application of the petitioner to correct her date of birth on the ground that the application was made after a period of five years. Under these circumstances, the action/order rejecting the application of the petitioner for correcting her birth date is required to be quashed and set aside. However, the petitioner having not worked after she was retired with effect from 31.5.2013, even if the action of the respondents in retiring her with effect from 31.5.2013 is held to be bad in law and the petitioner is held entitled to continue in service till 31.5.2014, the petitioner cannot be made entitled to any monetary benefit for the above spell of service after 31.5.2013 except the benefit of continuity of service till 31.5.2014 for the purpose of grant of retiral benefits to her. 12. For the reasons stated above, the petition is partly allowed. The order dated 11.6.2013 rejecting the request-proposal to correct the date of birth of the petitioner is quashed and set aside and it is held that the petitioner is entitled to continue in service upto 31.5.2014 on the basis of her correct date of birth of 31.5.1956. However, the petitioner shall not be entitled to back wages or any other monetary benefits except the continuity of service for the said period from 31.5.2013 to 31.5.2014 for the purpose of retiral benefits to the petitioner. The respondents are directed to work out the revised retiral benefits by considering the service of the petitioner upto 31.5.2014 and confer upon the petitioner the difference of retiral benefits within the period of two months from the date of receipt of the order and to pay regular terminal benefits based on revised calculation. Rule is made absolute to the above said extent. Rule is made absolute.