Reportable

IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE  JURISDICTION

CIVIL APPEAL NO. 7415 OF  2010 (ARISING OUT OF SPECIAL LEAVE PETITION NO. 2901 OF 2008)

State of Haryana     Appellant Versus

Satish Kumar Mittal and another                            Respondents

J U D G M E N T

GOKHALE, J.

1.           Leave granted.      

2. This appeal seeks to challenge the order passed by the High  

Court  of  Punjab  and  Haryana  in  Regular  Second  Appeal  No.3013/2007  

dated  18.9.2010  whereby  the  learned  single  judge  has  confirmed  the  

judgment of the Additional District Judge and that of the Civil Judge, Senior  

Division, whereby he had granted a decree in favour of the Ist respondent  

herein.  

The short facts leading to this appeal are as follows:

3.  Respondent  No.1  joined  the  office  of  the  Director  of  

Prosecution, Haryana, as an Assistant District Attorney on 2.4.1992.  At that  

time, he got the date of his birth recorded in the service book on the basis  

of  the  Matriculation  Certificate  in  which  the  date  was  mentioned  as  

25.3.1962.  It is the case of the first respondent that there was a family  

function in June 2001 where his relatives gathered, and wherein during the  

discussion he came to know that his date of birth was actually 25.11.1962,  

and that the one recorded in the matriculation certificate was erroneous.

4. The first respondent made a representation on 2.7.2001 for  

correction of the date of birth, which was rejected by the communication  

dated  24.9.2002  from  the  Superintendent  of  Jails  and  the  Judicial  and  

Financial  Commissioner  (who  is  also  the  Principal  Secretary  to  the  

Administration  of  Judicial  Department)  addressed  to  the  Director  of  

Prosecution,  State  of  Haryana.   The representation was rejected on the  

basis  of  Finance  Department's  Notification  dated  13.8.2001,  which  laid  

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down that no application for correction in date of birth,  submitted after two  

years from entry into service, can be entertained.

5. The first  respondent gave a notice under section 80 of  the  

Code of Civil Procedure (hereinafter referred to as the ‘CPC’ for short) on  

10.11.2005 and thereafter filed a suit on 16.10.2006 for a declaration that  

the  decision  dated  24.9.2002  was  bad  in  law.   The  second  respondent  

herein viz. Secretary, Board of School Education, Haryana, was joined as  

second defendant in the suit though he was a proforma-defendant.

6. The Learned Addl. Civil Judge, Senior Division, who decided  

the suit, being Civil Suit No.18 of 2006 took the view that the appellant was  

giving a retrospective effect to the Notification dated 13.8.2001 and that  

was not permissible.  The Learned Civil Judge held that the suit was within  

time and granted a decree that the order dated 24.9.2002 was illegal, null  

and void and that the date of birth of the first respondent was 25.11.1962.

7. The appellant filed an appeal against this judgment and order  

to  the  Court  of  the  Additional  District  Judge,  Karnal  being  Civil  Appeal  

No.66/2007 which came to be dismissed and so also the Regular Second  

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Appeal  No.3013/2007,  which  was  filed  against  that  order.  The  Learned  

Single Judge dismissed the second appeal by a short order in view of the  

concurrence of views of the courts below.

8. Being aggrieved by all  these orders,  the present  appeal  by  

Special Leave has been filed. It is submitted on behalf of the appellant  

that  the  first  respondent  joined  as  the  Assistant  District  Attorney  on  

2.4.1992  and  the  date  of  birth  given  by  him  on  the  basis  of  the  

matriculation certificate was recorded in his service book. Nine years later,  

he has sought to correct the date of birth, allegedly on the basis of the  

discussion at a family function and by pointing out the extracts of births of  

his brothers and sisters (though in none of them, there is any name of the  

child).  Even after his representation was turned down on 24.9.2002 on the  

basis of the Government Notification dated 13.8.2001, he took more than  

three years to serve the notice under Section 80 of the CPC, which was  

served on 10.11.2005 and the suit was filed almost one year thereafter on  

16.10.2006.  The appellant submitted that the action on part of the first  

respondent  was  belated.   It  suffers  from latches  and the suit  was  also  

barred by limitation.  The Respondent No.1 on the other hand, defended  

the impugned judgments as correctly rendered.

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9. It was submitted on behalf of the appellant that the Courts  

below have erred in not accepting the appellant’s submission on the basis of  

the  Notification  dated  13.8.2001  issued  by  the  Finance  Department,  

Government of Haryana, containing the amendments to the Punjab Finance  

Rules  framed  under  Article  283(2)  of  the  Constitution  of  India.   It  is  

submitted  that  the  Courts  have  erred  in  treating  this  as  a  case  of  

retrospective application of the relevant rule. It is pointed out that prior to  

the Notification dated 13.8.2001 also there was the governing rule 2.5 of  

the Punjab Civil Services Rules 1994 which laid down that the date of birth  

of the government employees, once recorded in the service book, cannot be  

corrected except in case of a clerical error without previous order of the  

government. The rule further provided that the date of birth/declaration of  

age made at the time of entry into service shall be deemed to be conclusive  

as against the government servant, unless he applies for correction of his  

age within two years from the date of his entry into government service.  

The  relevant  Rule  contained  in  paragraph  1  of  those  rules  

reads as follows:-

“ANNEXURE (A)

(Referred to in Rule 2.5 and Note 3 thereunder)

1.  In regard to the date of birth a declaration of age made  at the time or for the purpose of entry into Government service  shall,  as  against  the  Government  employee  in  question  be   deemed to be conclusive.  The employee already in the service   of the Government of Punjab on the date of coming into force  

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of the Punjab Civil Services (First Amendment) Rules.  Volume- I, Part-I, 1994, may apply for the change of date of birth within   a period of two years from the coming into force of these rules   on  the  basis  of  confirmatory  documentary  evidence  such  as   Matriculation Certificate or Municipal Birth Certificate etc.  No  request  for  the  change of  date  of  birth  shall  be entertained   after the expiry of the said period of two years.  Government,   however,  reserves  the  right  to  make  a  correction  in  the  recorded age of a Government employee at any time against   the interest of the Government employee when it is satisfied  that the age recorded in his service book or in the History of   service of  a Gazetted Government employee is  incorrect  and  has  been  incorrectly  recorded  with  the  object  that  the  Government  employee  may  derive  some  unfair  advantage   therefrom.”

10. This  provision  was  later  on  amended  and  under  the  rules  

amended on 20.12.2000, it was provided that if application is made beyond  

two  years,  it  must  be  considered  on  the  recommendation  of  the  

Administrative Department and the Chief Secretary only in consultation with  

the  Finance  Department.    It  was  entirely  left  to  the  discretion  of  the  

government  whether  to  entertain  any  such  application.  The  principle  

provision, which required that the employee must apply within two years,  

remained unaltered.  This rule amended on 20.12.2000 reads as follows:

“1.  These rules may be called Punjab Financial Volume-I  (Haryana First Amendment) Rules, 2000.

2.  In the Punjab Financial Rules, Volume-I, in Annexure   ‘A’ referred to in Rule 7-3 and Note 3 thereunder,-

(I) For  paragraph 1,  the following paragraph   shall be substituted, namely:-

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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 be against the Government employee in question,   be deemed to be conclusive unless he applied for correction of   his age as recorded within two years from the date of his entry   into Government service.  Wherever, it is proposed to consider   the application of the employee for correction of his age within a   period of two years from the date of his entry into government   service,  the  same would  be  considered  by  the  government  in  consultation with the Chief Secretary to Government of Haryana.   In  cases  where  such  application  has  been  made  beyond  the  stipulated period and is proposed to be accepted, the same shall   be  considered  on  recommendations  of  the  Administrative   Department and the Chief Secretary to Government of Haryana,   in  consultation  with  the  Finance  Department,  Government  however, reserves the right to make a correction in the recorded   age of the government employee at any time against the interest  of that government employee when it is satisfied that the age  recorded in his service book or in the history of  services of  a  government  employee  is  incorrect  and  has  been  incorrectly  recorded  with  the  object  that  the  government  employee  may  derive some unfair advantage therefrom.”

11.       Subsequently, by the notification dated 13.8.2001 amending the  

rules, it is once again made clear that unless the application is made within  

two years, no change in the date of birth will be entertained. This new rule  

1, as amended on 13.8.2001 reads as follows:

“ 1.  These rules may be called Punjab Financial  Volume-I   (Haryana First Amendment) Rules, 2001.

2.  In the Punjab Financial Rules, Volume-I, in Annexure   ‘A’ referred to in Rule 7.3 and Note 3 thereunder:-

(i) for paragraph 1, the following paragraph shall  be  substituted, namely:-

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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 employee in question,   be deemed to be conclusive unless he applied for correction of   his age as recorded within two years from the date of his entry   into  government  service.  No application  submitted  beyond the  stipulated period of two years for change in date of birth will be   entertained. Wherever the application for correction of his age is   submitted by the employee within a period of two years from the  date of his entry into government service, the same would be   considered  by  the  government  in  consultation  with  the  Chief   Secretary to Government of Haryana. The government, however,   reserves the right to make a correction in the recorded age of   government employee at any time against  the interest of that  government employee when it is satisfied that the age recorded  in his service book or in the history of services of a government   employee is incorrect and has been incorrectly recorded with the  object  that  the government employee may derive some unfair   advantage therefrom.”

12. Thus,  as  seen  from  the  above  position,  the  relevant  rule  

always  required  an  application  for  correction  of  date  of  birth  to  be  

submitted within two years from joining the service. The amended rule of  

20.12.2000 made a slight modification that application filed after two years  

could  be  considered  which  will  be  only  on  the  recommendation  of  the  

Administrative Department. This provision has now been removed after the  

rule was amended on 13.8.2001.  

13.  The import of such a provision has been clarified by this court  

from  time  to  time.  Thus,  in  paragraph  7  of  the  Secretary  and  

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Commissioner, Home Department  vs.  R.Kirubakaran  [1994 (Suppl.  

1) SCC 155] this Court held as follows:

“ 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 Court has, thereafter stated that burden in such cases lies  

on the applicant  and noted that  in  many of such cases,  the employees  

approach the Court on the eve of retirement.  The Courts and Tribunals  

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must  be  slow  in  granting  any  interim  relief  in  such  cases.  The  same  

principle has been reiterated in  State of UP vs.  Gulaichi [2003 (6) SCC  

483]; State of Punjab vs. S C Chadha [2004 (3) SCC 394]; and State of  

Gujarat vs. Vali Mohmed Dosabhai Sindhi  [2006 (6) SCC 537].

14. As recorded above, it has been held time and again that the  

application for correction of date of birth is also to be looked into from the  

point  of  view of the concerned department and the employees engaged  

therein.  The other  employees  have expectations  of  promotion based on  

seniority and suddenly if such change is permitted; it causes prejudice and  

disturbance in the working of the department.  It is, therefore, quite correct  

for the State to insist that such application must be made within the time  

provided in the rules, say, two years, as in the present case.  

15. It  is  also seen that  such applications are made very often,  

almost at the end of the service of the employee or in any case, belatedly.  

Whatever may be the reason, the fact remains that in the present case, the  

application was made after some nine years of joining into service.  Even  

assuming that first respondent came to know in June 2001 that there was  

an  error  in  his  date  of  birth  entered  in  the  matriculation  certificate,  as  

claimed by him, he took more than three years to issue the notice under  

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Section 80 of the CPC and then to file the suit. Whether the suit was time  

barred or not, the claim was in any case belated.  It has to be filed within  

the time provided or within a reasonable time and it is not to be entertained  

merely on the basis of plausible material as held in  Kirbukaran (supra).  

As observed by this Court in State of UP vs. Shiv Narayan Upadhyaya  

[2005 (6) SCC 49]:

“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.”

16.  In the circumstances in our view, the High Court as well as  

the courts below clearly erred in entertaining the claim of Respondent No.1  

for correction in his date of birth at a belated stage.  In such a matter, we  

are concerned with the correction in the date of birth for the purpose of  

service record and not for any other purpose.   The observation of this  

Court in para 7 of the Union of India vs. Harnam Singh [1993 (2) SCC  

162] in this behalf are quite apt.   

“7. A  Government  servant,  after  entry  into  service,  acquires  the  right  to  continue  in  service  till  the  age  of   retirement,  as  fixed by the State  in  exercise  of  its  powers   regulating  conditions  of  service,  unless  the  services  are  dispensed with on other  grounds contained in  the relevant   service rules after following the procedure prescribed therein.  The  date  of  birth  entered  in  the  service  records  of  a  civil   servant is, thus of utmost importance for the reason that the   

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right to continue in service stands decided by its entry in the   service record. 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.  In the absence of  any  provision  in  the  rules  for  correction  of  date  of  birth,  the   general  principle  of  refusing  relief  on grounds of  laches or   stale claims, is generally applied by the courts and tribunals.   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.  Unless  altered,  his  date  of  birth  as   recorded would determine his date of superannuation even if   it amounts to abridging his right to continue in service on the  basis of his actual age.  ……………..”

17.  This being so,  the courts should not have entertained the  

claim of the first respondent belatedly and beyond the period provided in  

the  rules.  The  rules,  in  the  instant  case,  all  throughout  required  such  

application to be made within two years.  Therefore, the courts clearly erred  

in finding fault with the appellant for allegedly applying the Notification of  

13.8.2001 retrospectively which was not the case over here.   

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18.       In the circumstances, we allow this appeal and set aside the  

orders passed by the High Court as well as by the courts below. The suit  

filed by the first respondent will stand dismissed.  

…………..……………………..J.  (R.V. Raveendran )

…………………………………..J.  (H.L. Gokhale  )

New Delhi

Dated : September 7, 2010

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