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CASE NO.: Appeal (civil)  5207 of 2003

PETITIONER: State of U.P. and Ors.                                   

RESPONDENT: Vs. Smt. Gulaichi                                                    

DATE OF JUDGMENT: 25/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

(Arising out of SLP(C) No. 22513 of 2002)

ARIJIT PASAYAT,J.

       Leave granted.

       Request for correcting the date of birth recorded, made   a few days before the date of superannuation as per original  records, having been accepted by the First Appellate Court  and confirmed by the impugned judgment of the High Court,  this appeal has been filed by the State of U.P. and Chief  Medical Officers, Azamgarh and Mau.  

       The respondent joined services under the State on 6th  July, 1959. In the service book her date of birth was  recorded to be 31.7.1929. Consequently, she was to retire on  31.7.1987. About three weeks before the date of retirement  i.e. on 7.7.1987 she approached the acting Chief Medical  Officer, Azamgarh claiming her date of birth to be  31.7.1939. The concerned official made the correction in her  service book. On that basis, she claimed that she was not to  retire on 31.7.1987. A suit was filed by the respondent- plaintiff for a declaration that her date of birth is   31.7.1939, but by mistake of an officer/employee of the  department it was wrongly recorded as 31.7.1929. The suit  was essentially for a declaration that her date of birth to  be 31.7.1939, on consideration of the materials brought on  record. The stand was resisted by State of Uttar Pradesh.  Analysing the materials on record, learned 7th Addl.  Munsif, Azamgarh dismissed the suit. But in appeal, learned  7th Additional District Judge, Azamgarh allowed the appeal  and decreed the suit to the effect that the date of birth of  plaintiff (respondent herein) to be 31.7.1939 and that she  was entitled to all service benefits on that basis.  

        The State and the two officials preferred Second  Appeal before the Allahabad High Court which declined to  interfere with the order passed by the First appellate  Court.   

       Learned counsel for the appellants submitted that the  law relating to change of date of birth is fairly well  settled and the First Appellate Court as well as the High

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Court fell in grave error by making the declaration  to the  effect that the date of birth of respondent was 31.7.1939.  Several materials of unimpeachable character were lost sight  of and/or not considered, and erroneous inferences were  drawn which no reasonable person would arrive at. Relevant  materials were left out of consideration and irrelevant  materials weighted with the First Appellate Court as well as  the High Court for deciding the issue in favour of  respondent.  Rule 2 of U.P. Recruitment of Service  (determination of date of birth) Rules, 1974 (in short the   ’Rules’) and U.P. Recruitment of Service (determination of  date of birth) (First Amendment) Rules, 1980 (in short the  ’Amendment Rules’) clearly delineate the area of permissible  correction, in view of what has been stated in Rule 2. There  is no scope for effecting any change, that too just a few  days before the date of superannuation. The person who  carried out the corrections had no authority in law to do so   in the teeth of the rule referred to above.  

       In response, learned counsel for the respondent  submitted that findings of fact have been recorded relating  to the correct date of birth, and on taking into  consideration the relevant materials the First Appellate  Court as well as the High Court rightly and in accordance   with law decided the issue in favour of respondent-employee  and no interference is called for.  

Usually, no interference is called for when findings of  fact are recorded by the Trial/Appellate Court and the High  Court, more so, when the issue is decided in Second Appeal.  But where the Courts below loose sight of statutory  provisions or act on irrelevant or inadmissible materials,  and ignore relevant materials, interference is not  impermissible.

       Normally, in public service, with entering into the  service, even the date of exit, which is said as 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. 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 concerned Administrative  Tribunals, or even filing suits for adjudication as to  whether the dates of birth recorded were correct or not.  

       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 of Assam v. Daksha Prasad Deka  (1970 (3) SCC 624), this Court said that the date of the

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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 Government of Andhra  Pradesh v. M. Hayagreev Sarma (1990 (2) SCC 682) 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 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:

"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, Bhadrak (R&B) Division, Orissa and  Ors. v Rangadhar Mallik (1993 Supp.(1) SCC 763), Rule 65 of  the Orissa General Finance Rules, was examined which  provides that representation made for correction of date of  birth near about the time of superannuation shall not be  entertained.  The respondent in that case was appointed on  November 16, 1968. On September 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 Tribunal saying that the claim of  the respondent that his date of birth was November 27, 1938  instead of November 27, 1928 should not have been accepted  on basis of the documents produced in support of the said  claim, because the date of birth was recorded as per  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 November 27,  1928.  The said respondent did not take any step nor made  any representation for correcting his date of birth till  September 9, 1986.  In case of Union of India v. Harnam  Singh (1993(2) SCC 162) the position in law was again re- iterated and  it was observed:

"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

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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, 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  loose the promotion for ever.  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 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.  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  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 position was succinctly stated by this Court in the  above terms in The Secretary and Commissioner Home

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Department and Ors. v. R. Kirubakaran (JT 1993 (5) SC 404)

       As observed by this Court in State of Tamil Nadu v.  T.V. Venugopalan (1994 (6) SCC 302) and State of Orissa and  Ors. v. Ramanath Patnaik (1997 (5) SCC 181) when the entry  was made in the service record and when the employee was in  service he did not make any attempt to have the service  record corrected, any amount of evidence produced  subsequently is of no consequence. The view expressed in R.  Kirubakaran’s case (supra) was adopted.   

       In the instant case the Rules and Amendment Rules  referred to above clearly indicate the permissible area for  correction of date of birth. In view of the specific  provisions made, it was not permissible to effect any  change. Additionally, the First Appellate Court and the High  Court seem to have lost sight of the fact that the person  who endorsed changes was not authorized to do so.  Original  service book was produced before us by learned counsel for  the appellants. Though learned counsel for the respondent  submitted that we should not look it, for the purpose of  arriving at the truth, we overruled the objection and looked  at the original document, which undisputedly was exhibited  during trial. The entry i.e. 31.7.1929 appears to have been  made simultaneously by one and the same person at the time  when other entries were made in FR Form No.13. Respondent  has herself signed the page at serial No.8, whereas the  entry relating to date of birth is at serial No.5.

       Though learned counsel for the respondent submitted  that there was no original entry as in 1965 and 1984 there  were no entries in the service book, the documents annexed  to prove the said assertion do not inspire confidence. In  fact the existence of these documents is shrouded in  mystery. It has to be noted that before the Trial Court as  well as the First Appellate Court a definite stand was taken  by the respondent that due to mistake of an   employee/officer of the department, the date of birth was  recorded as 31.7.1929 instead of 31.7.1939 in her service  book. If the stand of respondent that there was no entry  till 1984 is correct, it could not be explained as to when  entry was made and by whose mistake it was wrongly recorded. The stand presently  taken runs counter to the pleadings and  stands before trial Court and first appellate Court.  

       Above being the factual and legal position, the  conclusion is inevitable that the First Appellate Court and  the High Court were not justified in their conclusions to  the effect that the date of birth of respondent was  31.7.1939. The Trial Court was correct in its analysis by   holding that the date of birth is 31.7.1929.  

The order of the High Court is set aside. The date of  birth of respondent has to be taken for all purposes to be  31.7.1929 and not 31.7.1939 as claimed by her. The appeal is  allowed to the extent indicated above. There will be no  order as to costs.