http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (civil)  3043 of 2006

PETITIONER: State of Gujarat & Ors.

RESPONDENT: Vali Mohmed Dosabhai Sindhi

DATE OF JUDGMENT: 19/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.17788 of 2005)

ARIJIT PASAYAT, J.  

       Leave granted.

       State of Gujarat and Inspector General of Police,  Ahmedabad, and District Superintendent of Police, Mehsana,  call in question legality of the judgment rendered by a Division  Bench of the Gujarat High Court dismissing the Letters Patent  Appeal filed by the appellant.  By the impugned judgment,  order of learned Single Judge allowing the Writ Petition filed by  the respondent was upheld.   

The factual controversy lies within a very narrow  compass.  The respondent was appointed as an unarmed  Police Constable on 3.10.1947.  At the time of appointment his  year of birth was mentioned as 1923.  On this basis he was to  retire with effect from 1.11.1981 on reaching the age of 58  years.  Accordingly, order dated 16.2.1981 was passed by the  concerned Authority. It was indicated to the respondent that  he will be retiring with effect from 1.11.1981.  On receiving the  order, he submitted an application for making a change of his  date of birth in the service record.  According to him, he was  born in the year 1928 and not in 1923.  Since the prayer was  not accepted, he filed a writ petition.  Though prayer for  interim relief i.e. to stay operation of the order dated  16.2.1981 was made, no interim direction was given and he  retired from service reaching the age of superannuation with  effect from 1.11.1981.  The writ petition was allowed by order  dated 30.4.1993 and it was held that the he was to retire in  the year 1986 with effect from 1.11.1986. Accordingly,  direction was given to the respondents in the writ petition to  pay the arrears for the period from 1.11.1981 to 1.11.1986.   

       Learned Single Judge held that the school leaving  certificate produced by the respondent deserved acceptance  and on that basis he ought to have been continued till  1.11.1986.  It was observed that the correctness of the school  leaving certificate on which the respondent based his claim  was not doubted as no counter affidavit was filed. Accordingly,  the Writ Petition was allowed by order dated 30.4.1993.  

       The appellant   preferred an LPA before the High Court  which was dismissed so far as the date of controversy is  concerned. However the arrears were directed not to be paid.   All other salary benefits were directed to be given.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

       In support of the appeal, learned counsel for the  appellant submitted that no reason was assigned by the  respondent as to why he requested change of his date of birth  after receiving the order relating to his retirement.  He joined  service in 1947, for nearly 35 years he remained silent.  The  entry in the service record was made on the basis of his own  statement. No materials were adduced to show that there was  any error in the date recorded.  On mere production of school  leaving certificate, authenticity of which was doubtful, the  High Court should not have granted a relief. It was pointed out  that in the so-called school leaving certificate no date of birth  was indicated and only the year was mentioned. This  suspicious circumstance has been completely lost sight of by  the High Court.  

 There is no response on behalf of the respondent.

It is to be noted that there are several rules governing  request to change the date of birth. One of them is Rule 171 of  the Bombay Civil Services Rules, 1959 (in short the ’Rules’).   This Rule clearly provides that the request made for alteration  of date of birth should not be entertained after the preparation  of the service book of the Government servant and in any  event not after the completion of the probation period or after  5 years of continuous service whichever was earlier.  The said  rule categorically provides that once an entry of age or date of  birth has been made in the service book, no alteration of the  entry afterwards should be allowed unless it is shown that the  entry was due to want of care on the part of some person other  than individual in question or is an obvious clerical error.

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 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)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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  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.   

The above position was also noticed in State of U.P. and  Others v. Gulaichi (Smt.) (2003 (6) SCC 483).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

       In the instant case the 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.

         The inevitable conclusion is that the order of learned  Single Judge and impugned judgment of the Division Bench  affirming it cannot be sustained.  Both the orders are set  aside.  The appeal is allowed but without any orders as to  costs.