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2022 DIGILAW 18 (HP)

Bala Ram, S/o Sh. Naru Ram v. State Of H. P.

2022-01-07

VIVEK SINGH THAKUR

body2022
JUDGMENT : Present petition has been preferred against denial of correction of date of birth of petitioner in his service record as 10.2.1996 instead of 24.1.1964, despite the correction thereof in Middle Standard Certificate by the Himachal Pradesh Board of School Education (herein after referred to as the School Board) in compliance of judgment and decree dated 23.5.2017 (Annexure -2) passed by competent Civil Court in Civil Suit No. 73/17/2016, titled as Bala Ram Vs. H.P. Board of School Education, Dharamshala, and inspite of issuing direction by respondent No. 2 Director of Health Services vide communication dated 17.11.2017 (Annexure P-5), to respondent No. 3 Medical Superintendent, Regional Hospital Kullu, District Kullu, H.P. to make necessary entries in service book of the petitioner as directed by the Court. 2. In pursuance to appointment as driver on contract basis in the Department of Health and Family Welfare, petitioner had joined as such on 21.3.2007 and as per policy of State government, for completion of requisite years on contract service, his services were regularized w.e.f. 11.8.2014. At the time of joining, on the basis of documents submitted by the petitioner, his date of birth was recorded as 24.1.1964. 3. On 23.5.2016, petitioner preferred a suit against School Board seeking declaration that his correct date of birth 24.2.1966 be recorded in his Middle Standard Examination Certificate, as recorded in the Birth Certificate issued by Births and Deaths Registrar, Gram Panchyat Nigulsari, Tehsil Aut, District Mandi, H.P. School Board did not contest the suit and ex parte decree of declaration as prayed by the petitioner was passed on 23.5.2017. 4. Petitioner, on 21.8.2017, had submitted an application to Medical Superintendent, Regional Hospital, Kullu for correction of his date of birth in his service book, stating therein that at the time of his initial appointment on 21.7.2007, he had submitted his Middle Standard Certificate and Birth Certificate issued by Panchayat and at that time his date of birth was recorded as 24.1.1964 on the basis of date of birth recorded in the Middle Standard Certificate. It was stated in the representation that his date of birth has been corrected as 10.2.1966 by the School Board in Middle Standard Examination Certificate and, therefore, request was made to accept his corrected Middle Standard Examination Certificate and to correct the date of birth in his service book. It was stated in the representation that his date of birth has been corrected as 10.2.1966 by the School Board in Middle Standard Examination Certificate and, therefore, request was made to accept his corrected Middle Standard Examination Certificate and to correct the date of birth in his service book. The action taken by the Medical Superintendent upon this representation has not been disclosed either by the petitioner or by respondents. However, a communication dated 17.11.2017 has been placed on record by petitioner as Annexure P-5, whereby Director Health Services had directed Medical Superintendent, Regional Hospital Kullu to make necessary entries in service book of petitioner, as directed by the Court, under intimation to the Directorate. 5. In response to communication dated 17.11.2017 (Annexure P-5), Medical Superintendent, Regional Hospital, Kullu had sent a communication dated 26.12.2017 to Director Health Services expressing his inability to alter the date of birth of the petitioner in the service book in absence of further clarification for the reason that in the decree passed by the Court, Department was not party and decree has been passed against the School Board and also for the reason that the application of the petitioner for correction of date of birth has been received after about 10 years from his initial entry in the service in the Department. In this communication, it was stated that as per Note No. 6 appended below FR-56, request for correction of date of birth is to be made within five years of entry into the Government service, whereas application for correction of date of birth was filed after a gap of more than 10 years. 6. For denial of correction of date of birth, petitioner filed present petition in August, 2020. As stated in the reply to the petition, claim of the petitioner for correction of date of birth was rejected by Director Health Services on 26.6.2021. Copy of communication dated 26.6.2021 sent by the Director Health Services to Medical Superintendent, Regional Hospital, Kullu has been placed on record as Annexure R-1 with the reply, wherein it has been stated that request regarding correction of date of birth of the petitioner has not been received within prescribed period of two years from the date of his entry into Government service and, therefore, it cannot be considered. It is apparent that final decision has been taken by the Director Health Services after receiving notice of the Court. Be that at it may. Factual matrix remains that request of the petitioner to correct his date of birth in the service record stands rejected by the respondents. 7. It has been contended on behalf of petitioner that petitioner was regularized vide order dated 11.8.2014 and as a contract employee, his service book was not being maintained before 11.8.2014 and, therefore, prescribed time for correction of date of birth is to be counted from 11.8.2014 and as the petitioner filed a Civil Suit for declaration against the School Board on 23.5.2016, which was decreed on 23.5.2017, filing of application dated 21.8.2017 by the petitioner for correction of his date of birth must be considered within reasonable period, rather within two years after excluding time spent for adjudication of Civil Suit and, therefore, it has been canvassed that stand of the respondents that application for correction of date of birth was submitted after more than 10 years of entry in service, is erroneous and misconceived and, therefore, prayer has been made to allow the petition, directing the respondents to correct the date of birth in the service book of the petitioner. It has also been contended that once direction was issued by Director Health Services to make necessary entries in the service book of the petitioner in terms of decree passed by the Court, the Medical Superintendent, Regional Hospital, Kullu had no business to refuse to make such entries and to sent a communication dated 26.12.2017 to the Director Health Services, as he was bound to obey the directions passed by his superior, Head of the Department. It has further been contended that Director Health Services, after issuing directions dated 17.11.2017 to make necessary entries in the service book of the petitioner, cannot take U-turn by rejecting the claim of the petitioner, that too after filing of present petition. 8. It has further been contended that Director Health Services, after issuing directions dated 17.11.2017 to make necessary entries in the service book of the petitioner, cannot take U-turn by rejecting the claim of the petitioner, that too after filing of present petition. 8. It has been further contended that in the Himachal Pradesh Financial Rules, 1971 Volume-1, in para 7.1 period of two years has been prescribed for making an application for correction of date of birth, but in Note-6 appended below FR-56, the prescribed period is five years and, as provision beneficial to the employee is to be applied, therefore, submission of application by the petitioner on 21.8.2017 is within the prescribed period of five years from his date of regularization which is 11.8.2014 and, therefore, rejection of claim of the petitioner vide communication dated 26.6.2021 is not sustainable, being based on erroneous and misconceived facts. 9. Learned Senior Additional Advocate General has contended that in view of provisions contained in para 7.1 of Himachal Pradesh Financial Rules, 1971 Volume-1 and pronouncement of the Supreme Court in case Punjab and Haryana High Court at Chandigarh Vs. Megh Raj Garg & another, AIR 2010 SC 2295 , the Director Health Services has rightly rejected the claim of the petitioner for correction of his date of birth. He has further stated that first entry of the petitioner in the service is to be counted from his initial date of appointment on contract and since then he is an employee of the Department and, therefore, according to him, prescribed time for filing the application for correction of date of birth shall recon from his initial date of appointment i.e. 21.7.2007 and, therefore, prayer for dismissing the petition has been made. 10. Note 1 (d) (1) under Para 7.1 of Himachal Pradesh Financial Rules, 1971 Volume-1, relevant for adjudication of present case, reads as under:- “(d) (1) in regard to date of birth a declaration of age made at the time of or for the purpose of entry into Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of services of a gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.” 11. No doubt Note-6 appended under FR 56 provides that alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if a request in this regard is made within five years of his entry into Government service by clearly establishing that a genuine bona fide mistake has occurred and date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appearing in such examination or on the date on which he entered Government service. But FR-56 relates to the employees of Central Government, Indian Audit and Accounts Department and Union Territory. In absence of any specific provision of the State, it would have been applicable to the employees of State Government. However, for specific provision contained in Himachal Pradesh Financial Rules, 1971, the provisions of Himachal Pradesh Financial Rules shall prevail with respect to the employees of the State. 12. The Supreme Court in Megh Raj Garg’s case, after applying ratio of law laid down by it in its earlier pronouncements in State of Assam Vs. Daksha Prasad Deka, 1971 SC 173; Jiwaan Dass Vs. State of Haryana and others, 1989 (2) ILR Punjab 110; Secretary and Commissioner Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 ; Union of India Vs. Harnam Singh, AIR 1993 SC 1367 and Union of India Vs. Daksha Prasad Deka, 1971 SC 173; Jiwaan Dass Vs. State of Haryana and others, 1989 (2) ILR Punjab 110; Secretary and Commissioner Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 ; Union of India Vs. Harnam Singh, AIR 1993 SC 1367 and Union of India Vs. C. Rama Swamy, AIR 1997 SC 2055 , has held that the suit filed by the plaintiff/Judicial Magistrate of Punjab Judiciary for correction of date of birth in records of his service book after 12 years of his joining service, was clearly misconceived and resultantly, decree passed by the trial Court, affirmed by the District Judge and High court, directing the High court to carry out correction in the date of birth record in his service book, has been set aside. In para 12 of this judgment, the Supreme Court has referred observations made in Harnam Singh’s case, ( AIR 1993 SC 2647 ). Relevant portion whereof reads as under:- "…..It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. 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……” 13. In C. Rama Swamy’s case, ( AIR 1997 SC 2055 ) the Supreme Court in para 25 has observed as under:- “…..In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability." 14. In Bharat Coking Coal Limited and others Vs. Shyam Kishore Singh, AIR 2020 SC 940 , the Supreme Court after taking into consideration its earlier pronouncements in Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 ; Union of India Vs. Harnam Singh, AIR 1993 SC 1367 ; State of Uttaranchal Vs. Pitamber Dutt Semwal, (2005) 11 SCC 477 ; U.P. Madhyamik Shiksha Parishad Vs. Raj Kumar Agnihotri, AIR 2005 SC 2491 ; Kamta Pandey Vs. M/S BCCI and others 2008 (2) AIR Jharkhand R 94; State of Maharashtra and another Vs. Gorakhnath Sitaram Kamble and others, (2010) 14 SCC 423 ; State of M.P. Vs. Premlal Shrivas, AIR 2011 SC 3418 ; Factory Manager Kirloskar Brothers Limited Vs. Laxaman AIR OnLine 2019 SC 978 and M/S Eastern Coalfields Limited and others Vs. Ram Samugh Yadav and others, AIR OnLine 2019 SC 997 and after distinguishing the decision in Bharat Coking Coal Limited and others Vs. Premlal Shrivas, AIR 2011 SC 3418 ; Factory Manager Kirloskar Brothers Limited Vs. Laxaman AIR OnLine 2019 SC 978 and M/S Eastern Coalfields Limited and others Vs. Ram Samugh Yadav and others, AIR OnLine 2019 SC 997 and after distinguishing the decision in Bharat Coking Coal Limited and others Vs. Chhota Birsa Urnaw ( AIR 2014 SC 1975 ), has re-iterated the ratio as propounded in its earlier pronouncements, referred supra. 15. Petitioner was appointed on contract basis on 21.7.2007 and his services were regularized on completion of requisite years on contract service. Therefore, he was not re-appointed or appointed afresh on 11.8.2014, but by giving benefit of his contract service, his services were regularized and as such he did not enter in Government service as a fresh candidate on 11.8.2014, but his initial entry has been considered as 21.7.2007 and for counting of that service his contract service has culminated into regularization of his services. Therefore, his service after regularization is to be counted in continuation of contract service and thus his initial entry in Government service is to be taken as 21.7.2007. 16. It is also apt to record that this High Court in various judgments including judgment in Jagdish Chand Vs. State of Himachal Pradesh and others, Latest HLJ 2020 (HP) (1) 310, has held that contract service is to be counted towards seniority, grant of increments and penionary benefits etc. by holding that regularization of contract employees is in continuation from the date of their initial appointment as contract employee. 17. Rule 17 of CCS (Pension) Rules 1972 also provides for counting of service on contract for pensionary benefits of a person initially engaged by Government on contract for a specified period, subsequently appointed to the same or another post in a substantive capacity in a pensionable establishment without interruption of duty, subject to option provided under this Rule. Therefore, regularization after appointment on contract basis is not to be considered as initial date of entry into service, but initial date of entry in service of a person shall be his first date of appointment on contract basis. 18. In view of above, initial date of appointment of the petitioner is to be taken as 21.7.2007. Therefore, regularization after appointment on contract basis is not to be considered as initial date of entry into service, but initial date of entry in service of a person shall be his first date of appointment on contract basis. 18. In view of above, initial date of appointment of the petitioner is to be taken as 21.7.2007. It is also admitted fact, as stated by the petitioner in his representation dated 21.8.2017 (Annexure P-4), that his documents were taken on record of the Department which were submitted by him at the time of first appointment on contract basis and on the basis of those documents his date of birth was recorded as 24.1.1964. It is not case of the petitioner that incorrect recording of date of birth came in his knowledge at a later stage, as it is case of the petitioner that his date of birth was correctly recorded in Births and Death Register maintained by the Panchayat and according to him he had also submitted certificate issued by the Panchayat at the time of his appointment on contract but his date of birth was recorded on the basis of Middle Standard Certificate. Petitioner has also placed on record a copy of Birth Certificate issued by Births and Death Registrar of Gram Panchayat on 6.8.2011 as Annexure P-1. The reasons for not claiming his date of birth on the basis of this certificate at earlier point of time or at the time of initial appointment on contract basis are best known to the petitioner. He is completely silent in this regard. In the copy of Birth Certificate (Annexure P-1), though registration number with respect to registering date of birth has been mentioned as 156, but the column of date of registration has not only been filled, but a dash in place of date has been put, which again creates doubt about the correctness of this certificate and probably for that reason the petitioner did not object his recording of date of birth at initial stage, at the time of his appointment on contract basis, on the basis of Middle Standard Certificate. 19. From the initial date of appointment, petitioner has filed application for correction of his date of birth entry after 10 years and Writ Petition has been filed about lapse of 13 years. 19. From the initial date of appointment, petitioner has filed application for correction of his date of birth entry after 10 years and Writ Petition has been filed about lapse of 13 years. Therefore, even if Note-6 appended under FR-56 is considered to be applicable in case of petitioner, then also his claim for correction of date of birth entry is belated one, as five years had completed on 21.7.2012, whereas two years had completed in the year 2009. 20. Copy of Birth Certificate (annexure P-1) indicates that it was issued by the concerned Registrar on 6.8.2011. The reason for not filing the suit for declaration of correction of date of birth in Middle Standard Examination Certificate since 2011 to 2016 has also not seen the light of the day. 21. It is also settled, as held by Division Bench of this Court in CWP No. 1227 of 2021, Laxmi Singh Verma Vs. H.P. Board of School Education, decided on 14.12.2021, that passing a decree by the Civil Court against the Education Board, directing correction of date of birth in certificate issued by the School Board, does not entitle the person for correction of entries of date of birth in his service record maintained by the Department. Therefore, in present case also decree dated 23.5.2017 passed against School Board is of no help to the petitioner and it was wrongly recorded by the Director Health Services that Court had directed for making necessary entries in the service book of the petitioner. It has been admitted in the reply by the Director Health Services that communication dated 17.11.2017 was issued from the Directorate without going into the details of facts and merits in the light of relevant service rules. The Government, competent authority and concerned Officers are always having a right to rectify their mistake on noticing it and in present case also mistake has been admitted by the Director Health Services in the reply with respect to issuance of communication dated 17.11.2017. Otherwise also this communication does not create any indefeasible right in favour of petitioner to alter his date of birth as prayed by him. No doubt in appropriate genuine case, concerned authority is always competent to correct the date of birth in service record in accordance with power conferred under law/Rules. 22. Otherwise also this communication does not create any indefeasible right in favour of petitioner to alter his date of birth as prayed by him. No doubt in appropriate genuine case, concerned authority is always competent to correct the date of birth in service record in accordance with power conferred under law/Rules. 22. For the aforesaid discussion, I am of the considered view that petition deserves to be dismissed being devoid of merits and dismissed accordingly, along with application(s) if, any.