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Madhya Pradesh High Court · body

2017 DIGILAW 244 (MP)

Lajjaram Dhoubi v. State of M. P.

2017-02-15

S.A.DHARMADHIKARI

body2017
ORDER 1. Heard on the question of admission. 2. In this petition under Article 226 of Constitution of India, the petitioner has sought correction of date of birth in his service book. The petitioner has prayed for issuance of direction to the respondents to correct the date of birth which is recorded as 16.5.1955 in the service book and the same be replaced as 9.2.1958 and further be pleased to declare the date of retirement of petitioner to be 29.2.2020. The petitioner is going to be retired from service w.e.f. 31.5.2017. The petitioner has not chosen to challenge the order of retirement in the present petition. 3. On the other hand, learned counsel for the respondents has opposed the prayer of the petitioner and submitted that correction in the date of birth cannot be permitted at the fag end of the career. Much less in the present case, the petitioner is going to be retired from service w.e.f. 31.5.2017. It is further submitted that it is a settled legal position that the date of birth cannot be permitted to be altered at the fag end of the career. Learned counsel for the respondents has relied upon the judgment of Coordinate Bench of this case passed in the case of Ramhit Sahu v. State of M.P. and another, reported in 2016(2) MPLJ 426, in support of her contentions. 4. The apex Court in the case of Union of India v. Harnam Singh, reported in (1993)2 SCC 162 , has held as under : 5. 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. 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. 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.” In the case of State of Gujarat 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 the irrespective 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. 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.” 6. 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, 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.” 7. Admittedly, in the instant case the petitioner was appointed in the respondents department and after rendering considerable period of service in the respondents department he will be superannuated w.e.f. 31.5.2017 as per the entry made in the service book. 10. In view of the aforesaid analysis, the petition fails and is hereby dismissed.” 7. Admittedly, in the instant case the petitioner was appointed in the respondents department and after rendering considerable period of service in the respondents department he will be superannuated w.e.f. 31.5.2017 as per the entry made in the service book. It is only just before few months of the retirement, the petitioner has preferred representation dated 16.9.2016 seeking correction in the date of birth mentioned in the service book. Such entry was made at the time of entering in the service and during the entire service period, no representation/application was submitted by the petitioner in respect of correction in the date of birth. The respondents have taken decision in accordance with the governing provisions contained in the financial code and in the light of the settled legal position, no fault can be found in the decision of the respondents to retire the petitioner. 8. In view of aforesaid analysis, this petition being bereft of merit and substance is hereby dismissed. No order as to costs.