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2025 DIGILAW 1 (HP)

Ramesh Chand v. HPSEB Ltd.

2025-01-01

JYOTSNA REWAL DUA

body2025
JUDGMENT : Jyotsna Rewal Dua, J. The petitioner has instituted this writ petition just about 4 months prior to his retirement seeking directions to respondents-HPSEB Ltd. to correct his date of birth in the service record from 07.01.1967 to 08.01.1968. 2. The case pleaded by the petitioner is that:- 2(i). Petitioner was initially engaged as daily waged Labourer in the year 1983. His services were regularized by the respondents-HPSEB Ltd. as Cleaner in the year 1992. Petitioner was promoted as Additional Foreman-cum-Driver on 10.02.2022. He is working as such till date. 2(ii). At the time of regularization of the petitioner’s services in the year 1992, his date of birth was entered into service record as 07.01.1967. This entry was made on the basis of petitioner’s matriculation certificate. 2(iii). On 30.04.2024, petitioner instituted Civil Suit No.114-1/2024 against H.P. Board of School Education, seeking declaration that his actual date of birth is 08.01.1968 and not 07.01.1967, which is recorded in his matriculation certificate. 2(iv). H.P. Board of School Education, the sole defendant, did not contest the civil suit. It was proceeded against ex parte. Vide judgment dated 16.05.2024, the civil suit was decreed and H.P. Board of School Education- defendant was directed to correct the date of birth of the petitioner as 08.01.1968. The judgment was implemented by defendant and date of birth of the petitioner was accordingly changed in his matriculation certificate. 2(v). On the basis of aforesaid judgment & decree and the correction so carried by H.P. Board of School Education in petitioner’s matriculation certificate, the petitioner represented to his employer-HPSEB Ltd. seeking correction of his date of birth in the service record from 07.01.1967 as recorded to 08.01.1968. The respondents rejected the representation on 25.07.2024 (Annexure P-5). Feeling aggrieved, the petitioner has preferred the present writ petition. 3. Heard learned counsel for the parties and considered the case file. 4. Consideration. 4(i). It is an admitted position that prior to May, 2024, petitioner had not represented to his employer for correcting his date of birth in his service record. The first ever representation by the petitioner for correcting his date of birth entry in his service record was filed in May, 2024 i.e. just about seven months prior to his superannuation on 31.01.2025. The first ever representation by the petitioner for correcting his date of birth entry in his service record was filed in May, 2024 i.e. just about seven months prior to his superannuation on 31.01.2025. The petitioner has not demonstrated as to why he did not represent or raised any grievance to his employer for correcting his date of birth in his service record in accordance with Note 6 of Fundamental Rule 56 and Clause 7.1 of Chapter VII of Himachal Pradesh Financial Rules, 1971. In terms of Note 6 of Fundamental Rule 56 date of retirement of a Government servant, be it 58 years or 60 years, as the case may be, has to be determined with reference to date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School Certificate or extracts from the Birth Register. The Note further provides that the date of birth so declared by the Government servant and accepted by the appropriate authority, shall not be subject to any alteration except as specified in this note, as under: - “Note 6- (a) a request in this regard is made within five years of his entry into Government service; (b) It is clearly established that a genuine bona fide mistake has occurred; and (c) the 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 of which he first appeared at such examination or on the date on which he entered Government service.” Clause 7.1 of Chapter VII of Himachal Pradesh Financial Rules, 1971, provides that declaration of age made by the employee at the time of or for the purpose of entry into government service be deemed to be conclusive unless the employee applies for correction of his recorded age within two years from the date of his entry into the government service. Clause 7.1(d) of Chapter VII reads thus: - ““(d)(1) in regard to the 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 gazette. Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom. (2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an inquiry shall be made to ascertain his correct age and reference shall be made in all available sources of information such as certified copies of entries in the Municipal birth register, University or School age certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate is available, the date of birth recorded in the certificate will be deemed to be the correct age. (3) The result of every such inquiry should in the case of Gazetted/Non Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should be reported to the Accountant General.” 4(ii). In Bharat Coking Coal Limited and others Versus Shyam Kishore Singh , [(2020) 3 Supreme Court Cases 411] , the Hon’ble Apex Court held that request for change of date of birth in the service records at the fag end of service after accepting the same to be correct during service, cannot be entertained. In Bharat Coking Coal Limited and others Versus Shyam Kishore Singh , [(2020) 3 Supreme Court Cases 411] , the Hon’ble Apex Court held that request for change of date of birth in the service records at the fag end of service after accepting the same to be correct during service, cannot be entertained. Even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. Relevant paragraphs of the judgment read as under: - “9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble , [ (2010) 14 SCC 423 ] , wherein a series of the earlier decisions of this Court were taken note and was held as hereunder: “16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri , [ (2005) 11 SCC 465 ] . In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career. 17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal , [ (2005) 11 SCC 477 ] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades. * * * 19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran , [1994 Supp (1) SCC 155] reads as under: “7. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran , [1994 Supp (1) SCC 155] reads as under: “7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. 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 promotion forever. … 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. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.” 10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas , [ (2011) 9 SCC 664 ] , it is held as hereunder; “8. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas , [ (2011) 9 SCC 664 ] , it is held as hereunder; “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), (1993) 2 SCC 162 . 12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P.Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.” The above principles were reiterated by the Hon’ble Apex Court in Karnataka Rural Infrastructure Development Limited versus T.P. Nataraja and others , [ (2021) 11 SCALE 110 ] wherein after considering its previous pronouncements on the subject, the law on change of date of birth was summarized as under: - “10. Considering the aforesaid decisions of this Court in law on change of date of birth can be summarized as under: - (i) application for change of date of birth can only be as per the relevant provisions/ regulations applicable; (ii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation. 11. Therefore, applying the law laid down by this Court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law.” 4(iii). Learned counsel for the petitioner contends that Civil Suit instituted by the petitioner for correction of his date of birth had been decreed by the learned Civil Court on16.05.2024. Hence, the respondents are bound to correct the date of birth of the petitioner in his service record. It was also submitted that the respondents had corrected the date of birth in case of S/Sh Parkash Chand and Gyan Singh, therefore, similar treatment was required to be meted out in case of petitioner as well. Hence, the respondents are bound to correct the date of birth of the petitioner in his service record. It was also submitted that the respondents had corrected the date of birth in case of S/Sh Parkash Chand and Gyan Singh, therefore, similar treatment was required to be meted out in case of petitioner as well. The arguments of learned counsel for the petitioner are not tenable in the facts and circumstances of the case. The petitioner had not impleaded his employer in the Civil Suit. The defendant impleaded therein, i.e. the H.P. Board of School Education, was proceeded against ex-parte. It did not contest the Civil Suit. The petitioner cannot bind his employer with the judgment and decree, in which it was not impleaded as party. In Laxmi Singh Verma Vs. H.P. Board of School Education , CWP No. 1227/2021 decided on 14.12.2021 , it was held that decree by the Civil Court against the Education Board directing correction of date of birth in the educational certificate will not entitle the employee to get his date of birth of entered in the service record corrected on that basis. The second contention, that the respondents corrected the date of birth of two employees based on a judgment and decree passed in their favor by the Civil Court, cannot advance the case of the petitioner. In their reply, the respondents have though admitted to altering the dates of birth of S/Sh Parkash Chand and Gyan Singh but have termed those actions as erroneous. It is well-established that no benefit can be given to the petitioner on the basis of negative parity. A wrong order passed in favour of some does not confer any legal right on the petitioner to claim the same relief. [Reference: State of Orissa & Anr. vs. Mamata Mohanty , (2011) 3 SCC 436 ] and R.R. Muthukumar & Ors. vs. The Chairman and Managing Director Tangedco & Ors. , Civil Appeal No.1144 of 2022. In view of the law laid down by the Hon’ble Apex Court, date of birth cannot be corrected, merely on the basis of a judgment and decree passed by a Civil Court, where the employer was not impleaded as a party. It is well-settled that negative parity cannot be claimed in a Court of law, especially in light of the given facts and circumstances. 5. It is well-settled that negative parity cannot be claimed in a Court of law, especially in light of the given facts and circumstances. 5. In view of above, no case for correction of petitioner’s date of birth in his service record is made out. Hence, the petition fails and is accordingly dismissed. Pending miscellaneous application(s), if any, also stand disposed of.