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Uttarakhand High Court · body

2017 DIGILAW 260 (UTT)

MEHARBAN SINGH v. STATE OF UTTARAKHAND

2017-04-25

RAJIV SHARMA

body2017
JUDGMENT Hon’ble Rajiv Sharma, J. Petitioner was engaged on 21.3.1988. He was regularized on 12.8.2015. His date of birth in the service record was recorded as 26.4.1953. Petitioner submitted a certificate on 17.3.2006 disclosing his age to be 41 years (CA2). Petitioner also submitted copies of Family Register showing his date of birth as 1965. As per the reply, he also submitted the medical certificate on 15.7.2010, wherein his age was shown to be between 42 to 60 years. In the seniority list also, the date of birth of petitioner at Serial No.339 is recorded as 26.4.1953. Petitioner has also annexed copy of the school leaving certificate to prove his date of birth. 2. Petitioner has not placed before the concerned authorities the original school leaving certificate wherein his date of birth was shown as 6.3.1965. 3. The State Government has issued the instructions on 12.3.2002 laying down that the date of birth, except in certain conditions, should not be changed at the fag end of the career. 4. Petitioner was also issued a notice. He filed the reply. Respondent no.2-Chief Engineer (Level-1) on 14.3.2003 has recommended the case of petitioner to make changes in the date of birth of the petitioner in the service record. 5. The fact of the matter is that the petitioner has sought change in the date of birth which is contrary to the instructions issued on 14.3.2013. The date of birth of petitioner in service was recorded as 26.4.1953 and in the seniority list at Serial No.339. Petitioner has placed on record the copies of the family register. There are discrepancies in the details of the family register. Petitioner, as noted above, has also placed on record the school leaving certificate which is merely a photocopy. The age of petitioner as per the certificate issued vide Annexure CA2 has been shown to be 41 years. The doctor has not examined the petitioner. Petitioner himself has mentioned his age as 41 years. It is settled law that the doctor who gives opinion with regard to the date of birth has to physically examine the patient. Petitioner has also placed on record the medical certificate disclosing his age between 42-60 years. There cannot be age variation of 20 years in age. There can only be the variation of 2-3 years on the higher or lower side even as per the ossification or radiology test. 6. Petitioner has also placed on record the medical certificate disclosing his age between 42-60 years. There cannot be age variation of 20 years in age. There can only be the variation of 2-3 years on the higher or lower side even as per the ossification or radiology test. 6. In view of this, respondent no.2 had no justification to make such recommendation to respondent no.3 for any alteration in the change of date of birth of the petitioner. 7. Their Lordships of Apex Court in (2004) 3 SCC 394 in the case of ‘State of Punjab v. S.C. Chadha’ have held that 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. In paragraph no. 9, their Lordships have held as under:- “9. 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. 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. 11. 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. 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. 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. 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.” 8. In 2005 (6) SCC Page 49 in the case of State of U.P. & another v. Shiv Narain Upadhyaya, their Lordships of Apex Court have held that normally, in public service, while 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. 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. 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. 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. 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. 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.” 9. In 2005 (11) SCC Page 465 in the case of U.P. Madhyamik Shiksha Parishad & others v. Raj Kumar Agnihotri, their Lordships of Apex Court have held that where the government servant had himself declared his date of birth in High School examination form and the same was entered in High School Certificate as well as in his service record, the same cannot be allowed to be changed without recourse to law just a few years before his retirement. Their Lordships have held as under: - “14. Their Lordships have held as under: - “14. In the instant case, the respondent had himself admitted that the signature in the High School Examination form was signed by him and, therefore, his plea that the form was filed by his teacher is not at all sustainable. We have also perused the judgment of the appellate Court. The appellate Court has after appreciating facts and law rightly held that the suit was barred by limitation as the relevant rules framed by the U.P. Board of Education had not been followed by the respondent. As per Rule 7 of G.R., any application for correction is to be made within two years of issuing certificate, while in the present case it was made after more than 15 years i.e. on 25.05.1981 and the suit was filed on 07.04.1995. The High Court, in our view, has wrongly held that there was a continuing cause of action. Even if for the sake of arguments if it is accepted that document No. 63 [Ga] i.e. letter dated 13.10.1981 was written, even then the respondent’s suit was barred by limitation as he filed the suit in 1995 after more than 14 years. The High Court has wrongly relied on the alleged application dated 27.02.1971 and Exhibit 63 & 64 and has failed to appreciate that the lower appellate Court after perusing the evidence categorically held that the respondent could have summoned the record from Kakori Shaheed Inter College, Jalalabad, Shahjahanpur when he got admission in Class IX and documents of his date of birth should have been produced by him at the time of admission in Class IX. These documents were the best documents to prove the respondent’s case. The respondent’s failed to produce these documents before the Court. As rightly argued by learned counsel for the appellant, the respondent’s claim regarding the correction of his date of birth could not be entertained after several decades, specially on the plea of superannuation. The respondent being an educated man having completed his education upto M.A.Lt. and having remained in service for about four decades reaching the age of his superannuation discovered his age as incorrect by over four years short to the record one could be unthinkable and unbelievable. The respondent being an educated man having completed his education upto M.A.Lt. and having remained in service for about four decades reaching the age of his superannuation discovered his age as incorrect by over four years short to the record one could be unthinkable and unbelievable. The respondent’s date of birth having been written and declared by him in his examination form for High School and entered as such in High School Certificate and also entered as such in his service record by him, could not be changed without having recourse to the law, the education rules and the service rules and the provisions governing the respondent against settled law.” 10. In (2005) 12 SCC Page 2010, their Lordships of Apex Court in the case of Coal India Ltd. & another v. Ardhendu Bikas Bhattacharjee & others, have held that an employee should not be permitted to seek change in his date of birth at the fag end of his service career. Their Lordships have held as under: - 8. Thereafter, in the year 1995 he applied to the Company to change the date of birth on the basis of duplicate matriculation certificate obtained by him. It is well settled that an employee will not be permitted to apply for change of date of birth at the fag end of his service career. In the instant case we do not know on what basis after 38 years the Secondary Education Board in Bangladesh corrected the matriculation certificate. This is essentially a question of fact, and in any case the High Court ought not to have exercised its writ jurisdiction to determine the real date of birth. We are of the view that the High Court was in error in allowing the writ petition filed by the respondent and directing Coal India Limited, the appellant herein, to change the date of birth of the respondent from 31-12-1938 to 26-1-1943. We, accordingly, set aside the impugned order of the High Court of Calcutta. 11. Accordingly, there is no merit in this petition and the same is hereby dismissed. 12. All pending applications stand disposed of in the above terms.