Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 86 (MP)

Ramhit Sahu v. State of Madhya Pradesh

2016-02-03

SUJOY PAUL

body2016
ORDER : Sujoy Paul J. The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to challenge the orders dated 22.04.2015 (Annexure P/15) and order dated 23.04.2015 (Annexure P/16). It is further prayed that respondents be directed to superannuate the petitioner by taking into account his date of birth as 20.01.1958. 2. Draped in brevity, the relevant facts are that this is second visit of the petitioner to this Court. The petitioner earlier filed W.P. No.14337/13 for correction of date of birth. This Court by order dated 5.5.2014 directed the respondents to get the petitioner examined by the Medical Board within two weeks. The Medical Board was directed to submit the report before the competent authority. In turn, the competent authority was directed to take suitable action with regard to alteration of date of birth based upon the recommendation of the Medical Board. 3. The bone of contention of Shri Anshuman Singh, learned counsel for the petitioner is that respondents were bound to implement the order dated 5.5.2014 in letter and spirit. They were required to take the decision based upon the recommendation of the Medical Board. By taking this court to the impugned order dated 22.04.2015, it is urged that the respondents have not taken the decision on the basis of Medical Board's report. On the contrary, the decision was taken on the basis of Rule 84 of the M.P. Financial Code Part-I. To elaborate, it is urged that in the peculiar facts and circumstances, the respondents were bound to act strictly in consonance with the interim direction of this court issued on 5.5.2014. The respondents have erred in rejecting the application on the basis of irrelevant and improper grounds. 4. Prayer is opposed by learned counsel for the respondents. 5. Shri Pushpendra Yadav, learned GA contended that petitioner's date of birth was mentioned in the service record as 01.06.1954. The said date of birth was consistently shown in various seniority lists. The petitioner, on the basis of certain documents sought correction in the date of birth which is impermissible. It is urged that if petitioner's proposed date of birth is accepted, he would have been of 19 years of age at the time of appointment whereas for Government service, 21 years is the minimum age. Reliance is also placed on Rule 84 of the M.P. Financial Code. It is urged that if petitioner's proposed date of birth is accepted, he would have been of 19 years of age at the time of appointment whereas for Government service, 21 years is the minimum age. Reliance is also placed on Rule 84 of the M.P. Financial Code. It is further averred by the respondents that the petitioner has signed the service book and was aware about such entry. He did not raise any objection for decades. Hence, at the fag-end of his career, such request for alteration of date of birth cannot be entertained. Lastly, it is submitted that as per settled legal position, no interference is warranted in this matter because in the final order passed in W.P.No.14377/13 dated 13.12.2014, the respondents were directed to take a decision on the report in accordance with law. The decision taken by the impugned order Annexure P/15 is in accordance with law. The date of birth cannot be altered at the fagend of the career. 6. Learned counsel for the parties confined their arguments to the extent indicated above. No other point was pressed. 7. I have bestowed my anxious consideration on rival contentions advanced at the bar and perused the record. 8. No doubt, while passing the interim order in W.P.No.14377/13, this Court directed the competent authority to take suitable action with regard to alteration of date of birth based upon the recommendation of the Medical Board. However, admittedly, the said order stood merged in final order passed in the said writ petition on 13.12.2014. The said writ petition was disposed of by directing the respondents to take a decision on the report in accordance with law. Thus, the core issue needs consideration in this matter is "whether the decision taken by the respondents on 22.04.2015 (Annexure P/15) is in accordance with law". This point is no more res integra. In 1993(2) SCC 162 (Union of India v. Harnam Singh), the Apex Court held as under :- "The application for correction of date of birth, entered in the service-book in 1956, for the first time made in September, 1991 was hopelessly belated. It had not been made even within the period of five years from the date of coming into force of Note 5 of FR 56(m) in 1979. It had not been made even within the period of five years from the date of coming into force of Note 5 of FR 56(m) in 1979. His inaction for all this period of about thirty-five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth." In Harnam Singh (Supra), it is further held that : "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." (emphasis supplied) In the case of State of Gujarat and others v. Vali Mohd. Dosabhai Sindhi- (2006)6 SCC 537 , the Apex Court held that the States have framed statutory rules or in absence of it, issued administrative instructions as to how a claim made by a Government 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. The sole object of making such provision is that any such claim regarding correction of date of birth should not be made or entertained after decades, especially on the eve of superannuation of Government servant. The Apex Court considered the judgment of State of Assam v. Daksha Prasad Deka- (1970) 3 SCC 624 wherein it was held that the date of birth must 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 para-12, the Apex Court held as under :- "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. In para-12, the Apex Court held as under :- "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 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." Same view is taken by the Apex Court in the case of State of Maharashtra and another v. Gorakhnath Sitaram Kamble and others, (2010) 14 SCC 423 . It was held that date of birth cannot be permitted to be altered at the fag-end of the career. This Court in the matter of Surendra Singh v. State of M.P and others, 2007(1) MPLJ 286, has taken the same view. Relevant portion of the M.P. Financial Code Rules reads as under :- ^^84- 'kklu ds v/khu fdlh lsok vFkok in ij izR;sd uofu;qDr O;fDr dks HkrhZ ds le; viuh tUe frfFk dh tgk¡ rd gks ,sls vfHkys[kksa ds lkFk tks ml frfFk dh iqf"V djrs gksa tSls eSVªhdqys'ku lfVZfQdsV] E;qfufliy tUe frfFk lfVZfQdsV] vkfn ds lkFk fdzf'p;u ,sjk esa] ?kks"k.kk djuh pkfg,A ;fn okLrfod tUe frfFk Kkr u gks rks yxHkx D;k frfFk gS ;g crk;k tkuk pkfg,A lsok fooj.k] lsok iqfLrdk vFkok vU; vfHkys[k tks 'kkldh; lsod ds laca/k esa j[ks tk;sa muesa okLrfod tUe frfFk vFkok fu;e 85 ds varxZr fuf'pr dh xbZ frfFk vafdr dh tkuh pkfg,A bl rjg ,d ckj vafdr dh xbZ tUe frfFk vfUre :i ls fu;r frfFk le>h tkosxhA vkSj dsoy fyfidh; =qfV ds ekeyksa dks NksM+dj ,slh ?kks"k.kk esa fdlh Hkh iz;kstu ds fy;s rnqijkar dksbZ la'kks/ku ekU; ugha fd;k tkosxkA** A plain reading of this provision makes it clear that the date of birth can be altered only in case of clerical error. A Division Bench of this court in 2003 (1) MPHT 148 (DB) (State of M.P. v. Mathura Singh and another) considered this aspect and held as under :- "Rule 84 of M.P. Financial Code (Volume I) provides that date of birth once recorded 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." 9. While passing the final order in the earlier writ petition, this court made it clear that decision is required to be taken in accordance with law. The respondents have taken the decision in accordance to the governing provisions contained in the Financial Code. No fault can be found in such decision. The respondents have rightly declined the request of the petitioner which was made after decades of his appointment. It is made clear that for the purpose of computation of retiral dues, the date of birth recorded in the service record shall be final and determinative. Since petitioner has worked beyond the date of retirement as per date of birth recorded in the service record, the salary/emolument which has been paid for such extended period shall not be recovered from the petitioner. 10. In view of the aforesaid analysis, the petition fails and is hereby dismissed.