IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.  1591 OF 2006

 Punjab & Haryana High Court at Chandigarh ……..Appellant

Versus

Megh Raj Garg and another ……….Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Whether the decision taken by the Syndicate of the Panjab University  

to entertain and accept the application made by respondent No.1 Megh Raj  

Garg for changing the date of birth recorded in his matriculation certificate  

was binding on the State Government and the High Court of Punjab and  

Haryana (hereinafter described as `the appellant’) and whether the suit filed  

by respondent No.1 for ordaining correction of the date of birth recorded in  

his  service  book  was  maintainable  are  the  questions  which  arise  for  

determination in this appeal filed by the appellant against the judgment of  

the  learned  Single  Judge  of  the  High  Court  in  Regular  Second  Appeal  

No.901 of 1996.

2. Respondent  No.1  joined  service  as  Sub  Judge-cum-Judicial  

Magistrate, II Class in March, 1973.  His date of birth was recorded in the  

service  book  as  27.3.1936  because  that  was  the  date  mentioned  in  the  

matriculation certificate and the application made by him in response to the  

advertisement issued by the Punjab Public Service Commission.  After ten  

years of joining the service, respondent No.1 submitted an application to the  

concerned authority of Punjab University for amendment of the date of birth  

recorded in the matriculation certificate by asserting that his correct date of  

birth was 27.3.1938 but by mistake the same was recorded as 27.3.1936.  In  

support of this assertion, respondent No.1 relied upon the certificates issued  

by  Government  High  School,  Moonak  and  Hindu  Sabha  High  School,  

Sunam.  The Date of Birth Committee of the University recommended that  

the  request  made by respondent  No.1 may be accepted.   Thereupon,  the  

Syndicate of the University directed that the date of birth recorded in the  

matriculation certificate of respondent No.1 be changed from 27.3.1936 to  

27.3.1938.  In compliance of the decision taken by the Syndicate, necessary  

changes were made in the matriculation certificate of respondent No.1.  

3. After having succeeded in persuading the University to change the  

date  of  birth  recorded  in  his  matriculation  certificate,  respondent  No.1  

represented to the State Government for making corresponding change in the  

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date  of  birth  recorded  in  the  service  book.   The  State  Government,  in  

consultation with the High Court, rejected the prayer of respondent No.1 and  

he was informed about this vide letter dated 28.1.1993.

4. Respondent No.1 challenged the decision of the State Government in  

Civil Suit No.417-A of 1993 and prayed for grant of a declaration that the  

decision of the State Government and the High Court not to correct the date  

of birth recorded in his service book is illegal, void and ineffective.  He also  

prayed  for  issue  of  a  mandatory  injunction  directing  the  defendants  to  

change the  date  of  birth  recorded in the  service book from 27.3.1936 to  

27.3.1938.

5. In the written statement filed on behalf of defendant No.2 (appellant  

herein), reliance was placed on Para 1 of Annexure-A to Chapter II of the  

Punjab  Civil  Service  Rules,  Volume  1  and  it  was  pleaded  that  the  

application made by respondent No.1 for correction of date of birth recorded  

in his service book after twelve years of entering into service was rightly  

rejected.  It was further pleaded that correction of the date of birth recorded  

in  the  matriculation  certificate  by  the  University  was not  binding on the  

High Court and the State Government.   

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6. On the pleadings of the parties, the trial Court framed the following  

issues:

“(1) Whether  the  order  dated  28.1.1993 is  illegal,  null  and  void as alleged? OPP.

(2) Whether the plaintiff is entitled to the relief of mandatory  injunction as prayed for? OPP.

(3) Whether the suit is not maintainable as it  is not within  limitation? OPD.

(4) Whether the plaintiff has no cause of action? OPD

(5) Whether  the  plaintiff  is  estopped from challenging the  date of birth as mentioned in the office record? OPD.

(6) Relief.”

7. After considering the pleadings and evidence of the parties, the trial  

Court decreed the suit and declared that rejection of the representation made  

by respondent No.1 for correction of his date of birth was illegal and void.  

The trial Court also issued a mandatory direction for alteration of the date of  

birth recorded in the service book of respondent No.1 from 27.3.1936 to  

27.3.1938.  While dealing with the issue of limitation, the learned trial Judge  

distinguished the judgments of this  Court  in  Union of India v. Harnam  

Singh (1993)  2  SCC  162  and  Secretary  and  Commissioner,  Home  

Department and others v. R. Kirubakaran 1994 Supp.(1) SCC 155, by  

making the following observations:

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“In my opinion, these authorities which are based on Rules /  Administrative  instructions  prescribing  period  of  limitation  within  which  the  employee  can  submit  his  application  for  correction  of  date  of  birth  to  his  employer,  have  become  redundant so far as the present suit is concerned because Punjab  University  has  issued  notification  No.  11/4/93-5  PP-II/4499,  dated  21.6.1994,  making  Rules  to  amend  the  Punjab  Civil  Services  Rules,  Volume-I,  Part-I,  inter  alia  to  the  effect  that  employees of the Punjab Government can apply for the change  of date of birth to the Government within a period of two years  from the coming into force of the aforesaid Rules.  Thus, the  aforesaid  two  rulings  of  the  Hon’ble  Supreme Court  do  not  debar the plaintiff from seeking his remedy in the Civil Court  and at least do not make the suit barred by limitation.”

8. The lower appellate Court agreed with the trial Court on all the issues  

and dismissed the appeal  preferred by the  appellant.   The second appeal  

jointly filed by the appellant and the State of Punjab was dismissed by the  

learned Single Judge, who held that the decree passed by the trial  Court,  

which was confirmed by the lower appellate Court was legally correct and  

justified.  The issue of limitation was decided by the learned Single Judge in  

the following words:

“The  second  contention  raised  by  learned  counsel  for  the  appellants  that  the  Punjab  Civil  Service  Rules,  which  are  applicable to the plaintiff-respondent, bar the present suit, as the  same was not filed within two years after entry into service, is  also  not  acceptable.  Vide  notification  dated  21.6.1994,  an  amendment was made in the Punjab Civil Service Rules vide  Punjab Civil Service (First Amendment) Rules, Volume-I Part- I, 1994, according to which the employee already in service of  the Government of Punjab on the date of coming into force of  the amended rules may apply for the change of date of birth  within a period of two years from coming into force of these  

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Rules  on  the  basis  of  documentary  evidence,  such  as  Matriculation certificate or Municipal Birth Certificate etc. By  this amendment, one chance was given to those employees who  did not avail the opportunity to get their date of birth corrected  within the stipulated period of two years from entry into the  Government  service  and  a  fresh  period  of  two  years  was  provided  to  them  which  was  to  start  from  the  date  of  amendment. The contention of counsel for the appellants, that  this  amendment  was  subsequently  withdrawn  by  the  State  Government  vide  letter  dated  13.12.1995  of  the  Deputy  Secretary  (Personnel)  of  the  Department  of  Personnel  and  Administrative Reforms of Government of Punjab, was rightly  not accepted by the Courts below in view of Division Bench  decision of this Court in Civil Writ Petition No.1476 of 1996,  titled as Daljit Singh v. State of Punjab and others, wherein it  was held that simply on the basis of the letter dated 13.12.1995,  issued  by  the  Deputy  Secretary,  the  operation  of  the  rules  cannot  come  to  a  stand  still.  Thus,  in  view  of  the  said  amendment, the suit filed by the plaintiff-respondent cannot be  said  to  be  barred  by  limitation  and  the  contention  of  the  appellants  that  the date of birth of an employee can only be  corrected  within  two  years  of  entry  into  service  cannot  be  accepted. The first appellate court has also examined this aspect  of the matter and discussed the same in detail in paras 37 to 42  of its judgment. I find no infirmity or illegality in the findings  recorded by the Courts below in this regard. Even otherwise, it  has been held by a Division Bench of this Court in Jiwan Dass  v.  State  of  Haryana  and another,  1989(2)  I.L.R.  Punjab 110,  that  if  a  Government employee did not  get  his  date  of  birth  altered under the service rules within a stipulated period, then  his remedy to get the same altered under the civil law will not  be barred because the administrative law do not bar jurisdiction  of Civil Court and the decision of the administrative authorities  allowing or rejecting the requests for alteration in date of birth  is open to judicial scrutiny when challenged before a court of  competent jurisdiction.”

9. We  have  heard  learned  counsel  for  the  parties  and  carefully  

scrutinized the records.  Para 1 of Annexure-A to Chapter II of the Punjab  

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Civil  Service  Rules,  Volume 1  (as  it  stood at  the  time  respondent  No.1  

joined  service  and  also  on  the  date  of  his  making  an  application  for  

correction of the date of birth recorded in his service book), which has direct  

bearing on the issue relating to maintainability of the suit filed by respondent  

No.1 reads as under:

"In regard to the date of birth 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 applies for correction of his  age recorded within two years from the date of his entry into  Government  service.  The  Administrative  Department  in  consultation  with  the  Department  of  Personnel  &  Administrative Reforms, however, reserves the right to make a  correction in the recorded age of a Government employee at  any  time  against  the  interests  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. An  analysis  of  the  above  reproduced  rule  makes  it  clear  that  the  

declaration  of  age  made  at  the  time of  or  for  the  purpose  of  entry  into  

government service is conclusive and binding on the government servant.  

The  only  exception  to  this  is  that  the  government  servant  can  make  an  

application for correction of age within two years from the date of entry into  

service.  This necessarily implies that an application made by a government  

servant for correction of age after two years of his entry into service cannot  

be  entertained  by  the  competent  authority.   However,  the  competent  

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authority can, at any time, correct the age recorded in the service book or in  

the history service of a gazetted government employee if it is satisfied that  

the  age  has  been  so  recorded  with  a  view to  give  undue  benefit  to  the  

employee  /  officer  like  continuance  in  service  beyond  the  age  of  

superannuation.  Of course, while undertaking this exercise, the competent  

authority is bound to comply with the rule of audi alteram partem and give a  

reasonable opportunity to the concerned employee/officer to represent his  

cause against the proposed change in the recorded age/date of birth.  In other  

words, while there is a complete bar to the making of an application by the  

government servant for correction of his recorded age after two years from  

the date of his entry into government service, the competent authority can  

make correction at any time if it is found that the age recorded in the service  

book  is  incorrect  and  has  been  so  recorded  with  a  view  to  enable  the  

concerned employee to continue in service beyond the age of superannuation  

or gain any other advantage.   

11. Undisputedly, the date of birth of respondent No.1, who joined service  

in March 1973 was recorded in his service book as 27.3.1936.  This was  

done keeping in view the declaration made by him in the application form  

submitted for the purpose of recruitment to the service and his matriculation  

certificate.  Being a law graduate, respondent No.1 must have been aware of  

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the date of birth i.e., 27.3.1936 recorded in his matriculation certificate and  

this must be the reason why he mentioned that date in the application form  

submitted to the Public Service Commission.  If the correct date of birth of  

respondent No.1 was 27.3.1938 and this was supported by the certificates  

issued  by  the  schools  in  which  he  had  studied  before  appearing  in  the  

matriculation examination, then he would have immediately after joining the  

service made an application to the University for change of date of birth  

recorded  in  the  matriculation  certificate  and  persuaded  the  concerned  

authority  to  decide  the  same  so  as  to  enable  him  to  move  the  State  

Government and the High Court for making corresponding change in the  

date of birth recorded in his service book in terms of Para 1 of Annexure-A  

to  Chapter  II  of  the  Punjab  Civil  Service  Rules,  Volume  I.   However,  

respondent No.1 waited for more than ten years after entering into service  

and  submitted  an  application  dated  27.10.1983  to  the  University  for  

effecting change in the date of birth recorded in the matriculation certificate  

by citing the school certificates as the basis for his claim.  The Syndicate of  

the University took about one year and three months to decide the matter in  

favour of respondent No.1 and the date of birth recorded in the matriculation  

certificate  was  changed  from  27.3.1936  to  27.3.1938  sometime  in  

January/February  1985.   Thereafter,  respondent  No.1  submitted  

representation dated 22.2.1985 to the Registrar of the High Court seeking  

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correction in the date of birth recorded in the service book.  His plea was  

finally rejected in January 1993.   It is thus evident that respondent No.1  

applied for change of the date of birth recorded in his service book much  

beyond the time limit of two years specified in the rule.  The High Court or  

for that reason the State Government did not have the power, jurisdiction or  

authority to entertain the representation made by respondent No.1 after more  

than twelve years of his entering into service.  Therefore, neither of them  

committed  any  illegality  by  refusing  to  accept  the  prayer  made  by  

respondent No.1 on the basis of change effected by the University in the date  

of  birth  recorded  in  his  matriculation  certificate.  Unfortunately,  the  trial  

Court, the lower appellate Court and the learned Single Judge of the High  

Court totally misdirected themselves in appreciating the true scope of the  

embargo  contained  in  the  relevant  rule  against  the  entertaining  of  an  

application for correction of date of birth after two years of the government  

servant’s  entry  into  service  and  all  of  them  committed  grave  error  by  

nullifying the decision taken by the State Government in consultation with  

the High Court not to accept the representation made by respondent No.1 for  

change  of  date  of  birth  recorded  in  his  service  book.   All  the  courts  

overlooked the stark reality that respondent No.1 had made application for  

change of date of birth recorded in the matriculation certificate after more  

than ten years of his entry into government service and the decision taken by  

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the Syndicate to accept his request did not give him any cause for filing  

application or making representation for change of the date of birth recorded  

in the service book.

12. This Court  has time and again cautioned civil  courts  and the High  

Courts against entertaining and accepting the claim made by the employees  

long after entering into service for correction of the recorded date of birth.  

In  Union of  India  v.  Harnam Singh (supra),  this  Court  considered  the  

question whether the employer was justified in declining the respondent’s  

request  for correction of  date of  birth made after  thirty five years of  his  

induction into the service and whether the Central Administrative Tribunal  

was  justified  in  allowing  the  original  application  filed  by  him.   While  

reversing the order of the Tribunal, this Court observed:

“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  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  

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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. Indeed, as held by this Court in  State of Assam v.  Daksha Prasad Deka  a public servant may  dispute the date of birth as entered in the service record and  apply for its correction but till the record is corrected he cannot  claim to continue in service on the basis of the date of birth  claimed by him. This Court said: (SCC pp. 625-26, para 4)

“... The date of compulsory retirement under F.R. 56(a)  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. A  public servant may dispute the date of birth as entered in  the service record and may apply for correction of the  record. But until the record is corrected, he cannot claim  that he has been deprived of the guarantee under Article  311(2) of the Constitution by being compulsorily retired  on attaining the age of superannuation on the footing of  the date of birth entered in the service record.”

(emphasis supplied)

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13. In Secretary and Commissioner, Home Department and others v.  

R.  Kirubakaran  (supra),  this  Court  considered the  question whether  the  

Tamil  Nadu  Administrative  Tribunal  had  the  jurisdiction  to  entertain  an  

application made by the respondent for correction of his date of birth just  

before superannuation.  While answering the question in negative, the Court  

observed:  

“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  

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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 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 dates 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 for 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  merely  caused  injustice to his immediate junior.”

        (emphasis supplied)

14. In Union of India v. C. Rama Swamy (supra), this Court, after an in  

depth analysis of Rule 16-A of All India Services (Death-cum-Retirement  

Benefits) Rules, 1958, reversed the order passed by Hyderabad Bench of the  

Central Administrative Tribunal which had directed alteration of the date of  

birth of the respondent and observed:

“In matters relating to appointment to service various factors  are  taken into  consideration  before making  a  selection  or  an  appointment. One of the relevant circumstances is the age of the  person who is sought to be appointed. It may not be possible to  conclusively  prove  that  an  advantage  had  been  gained  by  representing a date of birth which is different than that which is  later sought to be incorporated. But it will not be unreasonable  to  presume  that  when  a  candidate,  at  the  first  instance,  communicates a particular date of birth there is obviously his  

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intention that his age calculated on the basis of that date of birth  should be taken into consideration by the appointing authority  for  adjudging his  suitability  for  a  responsible  office.  In  fact,  where maturity is a relevant factor to assess suitability, an older  person  is  ordinarily  considered  to  be  more  mature  and,  therefore, more suitable. In such a case, it cannot be said that  advantage is not obtained by a person because of an earlier date  of birth, if he subsequently claims to be younger in age, after  taking that advantage. In such a situation, it would be against  public policy to permit such a change to enable longer benefit  to the person concerned. This being so, we find it difficult to  accept  the  broad  proposition  that  the  principle  of  estoppel  would not apply in such a case where the age of a person who is  sought  to  be  appointed  may  be  a  relevant  consideration  to  assess his suitability.”

15. By applying the ratio of the above noted judgments, we hold that the  

suit filed by respondent No.1 for correction of the date of birth recorded in  

his service book after  twelve years of his joining the service was clearly  

misconceived and the trial  Court  committed a serious error  by passing a  

decree in favour of respondent No.1 and the lower appellate Court and the  

High Court repeated the same error by refusing to set aside the decree passed  

by the trial Court.  The learned lower appellate Court and the High Court  

also committed an error by relying upon the amendment made in the rule by  

notification dated 21.6.1994 which enabled the government servant to seek  

correction of date of birth within next two years.  It is neither the pleaded  

case of respondent No.1 nor it was argued by the learned counsel appearing  

on his behalf that the amendment made in 1994 was retrospective or that his  

client had applied for correction of date of birth after 21.6.1994.  Rather, in  

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response to the Court’s query, the learned counsel candidly stated that his  

client had applied for correction of the date of birth recorded in the service  

book for the first and last time in 1985 after the University entertained and  

accepted his application for correction of his date of birth recorded in the  

matriculation certificate.     

16. In the result, the appeal is allowed.  The impugned judgment is set  

aside.   The  judgments  and  decrees  passed  by  the  trial  Court  and  lower  

appellate Court are also set aside and the suit filed by respondent No.1 is  

dismissed.  Ordinarily, we would have saddled respondent No.1 with costs  

but keeping in view the fact that he has already retired from service, we have  

refrained from doing so.

….……… ………….…J.

[G.S. Singhvi]

…..…..………………..J. [C.K. Prasad]

New Delhi; May 20, 2010

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