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CASE NO.: Appeal (civil)  5489 of 2003

PETITIONER: State of U.P. and Anr.                                   

RESPONDENT: Shiv Narain Upadhyaya                                    

DATE OF JUDGMENT: 28/07/2005

BENCH: ARIJIT PASAYAT & H. K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       State of Uttar Pradesh and Executive Engineer, Sharda  Sahayak Khand-36, Jaunpur, U.P. calls in question legality  of the judgment rendered by a Division Bench of the  Allahabad High Court holding that the respondent’s date of  birth was 1.9.1939 and not 1.9.1930 as claimed by the  appellant-State.

       Factual background in a nutshell is as follows:

       The respondent-employee was engaged as Class IV  employee on 2.1.1972.  In the service records the date of  birth was indicated to be 1.9.1930. By order dated 31.1.1991  the Executive Engineer-appellant no.2 intimated the  respondent-employee that he had superannuated on 30.9.1990  having completed 60 years of age.  It was indicated that by  mistake he was allowed to work for three months more and  paid, and, therefore, direction was given to refund the  amount.  The said order dated 31.1.1991 was challenged by  the respondent in a writ petition. His stand was that  according to the school records his date of birth was  1.9.1939 and without any opportunity he had been pre- maturely retired nine years earlier. It appears that the  High Court directed production of the service records. By  the impugned order dated 11.10.2002 the High Court allowed  the writ petition holding that the State had failed to  produce the service record in spite of opportunities granted  and, therefore, the petitioner’s stand that his date of  birth was 1.9.1939 was accepted.   

       In support of the appeal, learned counsel for the  appellant submitted that the High Court’s view that service  record was not produced is clearly erroneous. On the  contrary along with affidavit dated 19.9.2002, copy of the  service book of the respondent-employee was filed. The High  Court did not take note of the said record. The document on  which the respondent-employee placed reliance was issued on  27.2.1991, after the order dated 31.1.1991 was issued. A  copy thereof is annexed as Annexure P-4 to the present  appeal.  According to learned counsel for the appellant the  same makes very interesting reading. Most of the columns  requiring information have been indicated to be nil. The

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respondent had himself signed in the service book on  27.4.1977 where his month and year of birth were recorded to  be September, 1930. Additionally, in the seniority list of  Works Supervisor dated 2.9.1983 the respondent-employee was  shown as Chowkidar and his date of birth was indicated to be  1.9.1930. In the group insurance scheme document dated  6.11.1985, and document relating to surplus staff (Letter  No.1153/Sh.S.Kh.36/W-3 dated 10.6.1987 same is the position.     

       According to learned counsel for the appellant these  clearly demolish the respondent’s claim about his birth.  At  no point of time the respondent-employee had questioned the  correctness of the entry made in the service book.  After  the order was passed on 31.9.1991 for the first time he  produced a document, which was issued after the order dated  31.1.1991.  All these according to him render High Court’s  judgment unsustainable.

       There is no appearance on behalf of the respondent in  spite of the service of notice.

       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, and 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 waking up from their supine  slumber raise a dispute about their service 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  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

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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  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

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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 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. 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  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.   

       These aspects were also reiterated in State of U.P. and  Ors. v. Gulaichi (Smt.) (2003 (6) SCC 483 and State of  Punjab and Ors. v. S.C. Chadha (2004) (3) SCC 394).

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                The High Court has clearly erred in holding that the  service book was not produced. As the records reveal along  with the affidavit a copy of original service book was  filed. The documents have also been annexed in the present  appeal. As is clearly evident from the copy of the service  book, more particularly the respondent-employee had on  27.4.1977, signed the service book which contained his date  of birth as per Christian era.  Additionally, the documents  referred to above indicated the date of birth to be  1.9.1930.  This was also not challenged at any time.

       Above being the position the High Court was clearly in  error in holding that the date of birth of the respondent- employee was 1.9.1939, contrary to what has been recorded in  the service book. We find that the respondent-employee had  rendered service till the order dated 31.1.1991 was passed.   It would not be equitable to direct refund of salary  received by him upto 31.1.1991 beyond the actual date of  superannuation i.e. 30.9.1990. However, the period beyond  the actual date of superannuation i.e. from 30.9.1990 to  31.1.1991 shall not be reckoned towards his retiral  benefits.            The appeal is allowed to the aforesaid extent with no  order as to costs.