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2024 DIGILAW 418 (MP)

Rajdev Mishra v. State of M. P.

2024-05-13

SANJAY DWIVEDI

body2024
ORDER 1. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is assailing the order dated 3.2.2021 (Annexure-P/2) whereby the petitioner is shown to be retired on attaining the age of 62 years; the said order also contains the date of birth of the employees retiring within a period of 24 months. 2. In the order dated 3.2.2021, name of the petitioner is shown at Sr.No.33 and his date of birth is shown as 1.5.1962, which has been taken from the date of birth recorded in service book. 3. Learned counsel for the petitioner submits that in the mark-sheets of 5th and 10th class and also in his Aadhar Card and PAN Card, the correct date of birth is shown as 15.08.1962. As per the petitioner, on 25.10.2022, he represented the matter to the Superintendent of Police, Shahdol; his representation is available on record as Annexure-P/3. Thereafter, is case was recommended by the Superintendent of Police to the Finance Officer, Police Headquarters, Bhopal. The Finance Officer further returned the matter to the Superintendent of Police saying that the date of birth recorded in the service book cannot be changed unless there is an order of the Court because as per the circular dated 23.08.1996 of the Finance Department, if there is no manipulation in the date of birth in service book, the same can be changed only by virtue of order of the Court and that proposal is sent to the Administration department. 4. I have heard the submissions made by learned counsel for the petitioner and perused the record. 5. There is no dispute about the fact that the petitioner has raised doubt about his recorded date of birth in the service book and officers of the Department have also opined that there is no foundation available in the service book as to on what basis, the date of birth in service book is recorded as 1.5.1962, therefore, they advised that sanction be granted for correction in date of birth in service book of the petitioner. But, in my opinion, the request made by the petitioner cannot be considered because the date of birth recorded in the service book can be corrected only on an objection raised within a period of six months from the date of recording the same as per Rule-85 of the Madhya Pradesh Financial Code, which provides that the date of birth recorded in the service record shall be treated to be final and once it is recorded, only in case of clerical error, when any manipulation is found, the same can be corrected. The law is also settled on this issue that at the verge of retirement, there cannot be any change in service record unless an objection is raised with regard to correction of date of birth at the relevant point of time. Dealing with the same issue, the Supreme Court in the case of State of T.N. v. T.V. Venugopalan reported in (1994) 6 SCC 302 , has observed as under:- "7. As held by this Court in Harnam case [ (1993) 2 SCC 162 ], 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 ofsuperannuation 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 the 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." 6. Further, in the case of State of U.P. & Others v. Gulaichi (Smt.) reported in (2003) 6 SCC 483 , it has been observed that:- 8. 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 even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 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. In the case of State ofAssam v. Daksha Prasad Deka [ (1970) 3 SCC 624 ] this Court said (at SCC pp. 625-26, para 4) that the date of compulsory retirement "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". In the case of Govt. of A.P. v. M. Hayagreev Sarma [ (1990) 2 SCC 682 : 1990 SCC (L&S) 542 : (1990) 13 ATC 713] the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births-and-deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The public servant concerned had claimed correction of his date of birth with reference to the births-and-deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births-and-deaths register ignoring the Rules framed by the State Government referred to above. It was inter alia observed by this Court :(SCC p. 685, para 7) "7. The object underlying rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth." In Executive Engineer v. Rangadhar Mallik [1993 Supp (1) SCC 763 : 1993 SCC (L&S) 276 :(1993) 23 ATC 807] rule 65 of the Orissa General Finance rules was examined which provides that representation made for correction of date of birth nearabout the time of superannuation shall not be entertained. The respondent in that case was appointed on 16.11.1968. On 9.9.1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the order of the Tribunalsaying that the claim of the respondent that his date of birth was 27.11.1938 instead of 27.11.1928 should not have been accepted on the basis of the documents produced in support of the said claim, because the date of birth was recorded as per the document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as 27.11.1928. The said respondent did not take any step nor made any representation for correcting his date of birth till 9.9.1986. In the case of Union of India v. Harnam Singh [ (1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] the position in law was again reiterated and it was observed :(SCC p. 167, para 7) "7. In the case of Union of India v. Harnam Singh [ (1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] the position in law was again reiterated and it was observed :(SCC p. 167, para 7) "7. A government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the government servant must do so without any unreasonable delay." An application for correction of the date of birth should not be dealt with by the Courts, Tribunals 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 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 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 the 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 ofsuch 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 ofsuperannuation. 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.' 7. Thus, in view of the aforesaid, once the date of birth is recorded in the service book at the time of entry in the service and that has been verified by the petitioner himself, no change can be made at the verge of retirement especially under the circumstances when there is no manipulation in the date of birth recorded in the service book. 8. This petition, being without any substance, is hereby dismissed. Yogesh Singh Baghel for petitioner; Lalit Joglekar, Government Advocate for respondents/State.