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Madhya Pradesh High Court · body

2018 DIGILAW 1002 (MP)

Chhote Batham v. State of M. P.

2018-12-05

G.S.AHLUWALIA

body2018
JUDGMENT : 1. This petition under Article 226 of the Constitution of India has been filed challenging the order dated 30.7.2018 (Annexure P/2) by which the petitioner has been retired from service after attaining the age of 62 years. 2. The necessary facts for the disposal of the present petition in short are that the petitioner was working on the post of Gardner; a Class IV employee, and by order dated 30.7.2018 he stood superannuated w.e.f. 31.7.2018 after attaining the age of 62 years. 3. It is the contention of the petitioner that as his brother, who is elder by two years, had also retired in the same year after attaining the age of 62 years, therefore, the petitioner realized that as his date of birth has been wrongly mentioned in the service record and, therefore, he has filed a representation on 22.10.2018 to the respondents seeking prayer for correction of his date of birth in the service record and his age should be reduced by two years. It is submitted by the counsel for the petitioner that since the said representation has not been decided so far, therefore, the order dated 30.7.2018 (Annexure P/2) by which the petitioner has been retired from service after attaining the age of 62 years should be quashed and the respondents be directed to rectify/correct the date of birth of the petitioner in the service book and the petitioner be permitted to continue till he attains the age of 62 years (wrongly mentioned as 60 years in the prayer clause), or in the alternative it has been prayed that the respondents be directed to decide the representation made by the petitioner. 4. 4. Challenging the order dated 30.7.2018 by which the petitioner has been retired w.e.f. 31.7.2018, after attaining the age of 62 years, it is submitted by the counsel for the petitioner that although it is well established principle of law that the application for correction of the date of birth of an employee in the service book should not be entertained at the fag end of the service, but the petitioner is an illiterate person belonging to a socio-economic backward class and he had no knowledge about the date of birth mentioned in the service book, therefore, he could not make an application for correction of his date of birth in the service book at an early stage and considering the socioeconomic backward class of the petitioner, his case should be treated as an exceptional case and the respondents be directed to rectify/correct the date of birth of the petitioner in the service book even after attaining the age of superannuation. It is further submitted by the petitioner that all his submissions should be considered and, therefore, it was specifically enquired that whether any submission has been left or not, however, no other submission has been made by the counsel for the petitioner. 5. Per contra, it is submitted by the counsel for the State that it is well established principle of law that the application for correction of date of birth of an employee cannot be entertained at the fag end of his service and thus, no useful purpose would be served if the direction is given to the respondents to decide his representation as the petitioner has failed to make out his legal right for getting his date of birth corrected in the service book. By referring to Annexure P/3; first page of the service book of the petitioner, it is submitted by the counsel for the State that the date of birth of the petitioner in the service book was written in English as well as in Hindi also and the said page has been signed by the petitioner and the same page of the service book also contains the fingerprints of the petitioner. Thus, it is clear that the petitioner was having a clear knowledge that his date of birth in the service book is mentioned as 6.7.1956 because the date of birth was also mentioned in Hindi. Thus, it is clear that the petitioner was having a clear knowledge that his date of birth in the service book is mentioned as 6.7.1956 because the date of birth was also mentioned in Hindi. It is not the case of the petitioner that he cannot even write and understand Hindi language also. 6. Considered the submissions made by the counsel for the parties. 7. It is well established principle of law that the application for correction in the date of birth of an employee in the service book cannot be entertained at the fag end of his service. The Supreme Court in the case of State of M.P. v. Premlal Shrivas reported in (2011) 9 SCC 664 has held as under : "8. It needs to be emphasised 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 Singh). 9. In Home Deptt. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh). 9. In Home Deptt. 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. 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. 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. 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.” 10. In State of U.P. 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." The Supreme Court in the case of LIC v. R. Basavaraju reported in (2016) 15 SCC 781, has held as under : "5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement. 6. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement. 6. It has not been disputed by the respondent that at the time of appointment his date of birth was recorded in the service record as 3-2-1943 and the said date of birth was duly acknowledged and accepted by the respondent. It was only after appointment, he asked the appellant to change his date of birth, which was not accepted by the appellant Corporation. 7. This Court in State of T.N. v. T.V. Venugopalan, elaborately dealt with such a demand made by the employee with regard to alteration in the date of birth. This Court observed: (SCC p. 307, para 7) “7. As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force i.e. 1961. If no application is made, after expiry of five years, the government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service on 12-1-1952, and only when he was due for superannuation at the age of 58 years on 31-8-1991, he made the application exactly one year before his superannuation. The Government rejected his claim before he attained the age of superannuation on 30-8-1991. When questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The Government considered various facts and circumstances in GOMs No. 271 and rejected the claim on 31-3-1993. The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs 3000.” The Supreme Court in the case of State of Punjab v. S.C. Chadha reported in (2004) 3 SCC 394 has held as under : "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. 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 the promotion forever. 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. 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 (sic of) 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." The Supreme Court in the case of State of Gujarat v. Vali Mohd. Dosabhai Sindhi reported in (2006) 6 SCC 537 has held as under : "8. It is to be noted that there are several rules governing request to change the date of birth. One of them is Rule 171 of the Bombay Civil Services Rules, 1959 (in short “the Rules”). This Rule clearly provides that the request made for alteration of date of birth should not be entertained after the preparation of the service book of the government servant and in any event not after the completion of the probation period or after 5 years of continuous service, whichever was earlier. The said Rule categorically provides that once an entry of age or date of birth has been made in the service book, no alteration of the entry afterwards should be allowed unless it is shown 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. 9. Normally, in public service, with entering into the service, even the date of exit, which is said as the 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, 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, 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 raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or by even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 10. Most of the States have framed statutory rules or in the 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. In State of Assam v. Daksha Prasad Deka this Court said that the date of the compulsory retirement: (SCC pp. 625-26, para 4) “must in our judgment, 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”. The Supreme Court in the case of Home Deptt. v. R. Kirubakaran reported in 1994 Supp (1) SCC 155 has held as under : "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. The Supreme Court in the case of Home Deptt. v. R. Kirubakaran reported in 1994 Supp (1) SCC 155 has held as under : "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. 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." The Supreme Court in the case of State of M.P. v. Premlal Shrivas reported in (2011) 9 SCC 664 has held as under : "13. Rule 84 of the M.P. Financial Code, heavily relied upon by the respondent reads as under: “84. Every person newly appointed to a service or a post under the 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 the 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 whatever.” 14. 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 whatever.” 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." So far as the contention made by the counsel for the petitioner that since the petitioner belongs to socio-economic backward class and, therefore, his case should be treated as an exceptional case and his application for correction of date of birth can be entertained by the respondents even after his superannuation is concerned, with great respect, this Court is not able to accept the contention raised by the petitioner. The date of birth of the petitioner so mentioned in the service book was also mentioned in Hindi. It is not the case of the petitioner that he was not in a position to understand the language mentioned in Annexure P/3. The same page of the service book on which the date of birth has been written was duly signed by the petitioner. It is not the case of the petitioner that he was not in a position to understand the language mentioned in Annexure P/3. The same page of the service book on which the date of birth has been written was duly signed by the petitioner. Thus, on the said date the petitioner was aware of the fact about his date of birth mentioned in the service book, but he never raised any dispute/objection with regard to the date of birth mentioned in his service book. So far as the contention made by the petitioner that since his brother, who is elder by two years, has also retired in the same year, therefore, he realized that his date of birth has been wrongly mentioned in the service book is concerned, the same cannot be accepted for the simple reason that it cannot be presumed that the elder brother of the petitioner had mentioned his correct date of birth. It is also possible that his elder brother might have disclosed a wrong date of birth while entering into service and might have succeeded in serving the Department even after attaining the age of 62 years. So far as the socio-economic backward class of the employee is concerned, the law does not differentiate between Class-I employee or Class-IV employee and once an employee has entered into service after going through the contents of the service book including his date of birth and has put his signature, then he cannot say that since he belongs to a socio-economic backward class, therefore, his application for correction of date of birth should be entertained even after his superannuation. As the petitioner has failed to point out any right to get his date of birth changed in his service book, therefore, no fruitful purpose would be served even by directing the respondents to decide the representation made by the petitioner. Accordingly, the petition fails and is hereby dismissed.