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CASE NO.: Appeal (civil)  1730 of 2005

PETITIONER: State of Punjab

RESPONDENT: Mohinder Singh

DATE OF JUDGMENT: 14/03/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (C) No. 22477/2003  

ARIJIT PASAYAT, J.

       Leave granted.

                        Appellant-State calls in question legality of the judgment  rendered by a learned Single Judge of the Punjab and Haryana High Court  dismissing the Second Appeal filed by it under Section 100 of the Code  of Civil Procedure, 1908 (in short the ’Code’) holding that no question  of law was involved.   The background facts are as under:

The respondent (hereinafter referred to as the ’plaintiff’) was  appointed as a Patwari on 5.2.1958.  At the time of appointment he  disclosed his date of birth to be 1.10.1934. Complaints were received  and preliminary enquiry was conducted and it was held that his actual  date of birth is 25.11.1931.  A suit was filed by the respondent for  declaration to the effect that his date of birth as recorded in service  book i.e. 1.10.1934 is the correct date of birth and plaintiff is  entitled to all benefits and privileges which would have accrued to him  had he continued on that basis till the date of superannuation i.e.  30.9.1992 and for setting aside the punishment awarded for allegedly  manipulating records and disclosing wrong date of birth.   

Following issues were framed by the trial Court:

"1.     Whether the High Court was justified in  observing that no substantial question of law arises  in the second appeal, whereas the substantial  question of law was/is whether interpretation of the  expression "Government" in Rule 2.5 Note 1 of Punjab  Civil Service Rules is not competent/appointing  authority, who is the Deputy Commissioner in this  Case?

2.      Whether as per Rule 2.5 Note 1 of Punjab Civil  Service Rules, the date of birth entered in the  Service Book of an employee cannot be changed by the  Competent Authority after conducting a regular  enquiry and giving proper opportunity of hearing to  the said employee?

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3.      Whether submission of wrong date of birth at  the time of joining service amounted to misconduct on  the part of the said employee?

4.      Whether the date of birth entered in the  matriculation certificate shall not prevail over the  date of birth mentioned in the horoscope?

5.      Whether entering a correct date of birth in  service book after valid enquiry qua the correct date  of birth of the Respondent can be challenged, which  was entered after affording proper opportunity of  hearing and which is final and never challenged as  bad?          6.      Whether the respondent, who is literate and was  qualified to be appointed as Patwari was supposed to  know the admissibility of document in respect of date  of birth, did not tamper with documents by submitting  a wrong date of birth i.e. 1.10.1934 instead of  25.11.1931?          7.      Whether a long span of 33 years ought to be  allowed to come in the way to correct a false entry  regarding date of birth made on wrong and tampered  documentation of an employee, which undoubtedly being  the date of birth shall seriously affect the services  of the colleagues of the said employees in the same  cadre?"           Learned Civil Judge (Senior Division) dismissed the suit holding  that there was no ground to interfere with the orders of the Deputy  Commissioner who, on the basis of the enquiry conducted, had observed  that the date of birth was 1931 and not 1934 and if he had given actual  date of birth he would have been over age and would not have been  eligible for the post of patwari. The enquiry report of the Additional  Deputy Commissioner was submitted on 21.5.1985.  The Sub-Divisional  officer, Sangrur who hold the enquiry held that the charge regarding  change of date of birth from 25.11.1931 to 1.10.1934 was proved.  The  Deputy Commissioner dismissed the respondent from service with effect  from 27.7.1988 after granting opportunity of hearing. An appeal was  filed before the Commissioner who by order dated 18.6.1990 dismissed  the same.  He, however, reduced the punishment by observing that ends  of justice would be met if he is reduced by one stage in his running  grade with effect from the date on which he was charge-sheeted till  retirement and he will not earn any increment during the period of this  reduction till the date on which respondent was superannuated from  service.   

Against the order passed by the trial court an appeal was  preferred before the District Judge who held that the materials on  record do not show that there was any change in the true date of birth  and the claimed date of birth i.e. 1.10.1934 is the actual date of  birth as recorded.  Second Appeal filed by the appellant as noted above  was dismissed on the ground that no substantial question of law was  involved.

       Learned counsel for the appellant submitted that the approach of  the first Appellate Court is not proper. On the basis of materials on  record and after enquiry it was held that the date of birth was  25.11.1931 and not on 1.10.1934 as claimed.  School register and the  connected records were produced which clearly show that the date of  birth was 25.11.1931. The evidentiary value of these documents was  discarded by the first Appellate Court primarily on the ground that a

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horoscope was produced according to which the date of birth was  1.10.1934.

       In response, learned counsel for the respondent submitted that on  evaluation of evidence the first Appellate Court held that the date of  birth was 1.10.1934 and when a horoscope is available merely because a  different date is indicated in the school record same is of no  consequence.   

During the course of hearing of the matter we directed the  respondent to produce the original school leaving certificate which was  sought to have been brought from the Government High School, Gujjarwal.  It was filed by the respondent. A perusal thereof shows that the date  of birth has been clearly indicated to be 25.11.1931.  Stand of the  respondent as noted above was that the date of birth was entered in the  service record by relying on the horoscope.  It is to be noted that  respondent claimed that both school leaving certificate and the  horoscope were produced and the date of birth was recorded by relying  on the horoscope.  It has not been explained as to how varying dates  remained. If according to the respondent, the horoscope reflected the  actual state of affairs it has not been explained as to why no steps  were taken to get the school records corrected.  The first Appellate  Court was not justified in its conclusion that there was no material  adduced by the present appellant to substantiate its stand regarding  the date of birth.  One thing further significant is that a school  leaving certificate was produced at the time of appointment.  On  enquiry it was found that the same was forged one. Apart from the fact  that there was no effort to reconcile the discrepancy in the so-called  horoscope and the school record is a factor which has rightly been  taken note of by the Trial Court.  Without any plausible reason the  first Appellate Court took a different view.   

In terms of Section 32, clause 5 of the Indian Evidence Act, 1872  (in short the ’Evidence Act’), the evidentiary value of a horoscope has  to be considered.  No evidence was led by the respondent to prove  authenticity of the same.  In any event the same was not to be given  primacy over the school leaving certificate.  It was not shown as to  how the entry therein was wrong. The onus was on the respondent to  prove that the same was not correct, which was not discharged.  Two  photostat copies of the school leaving certificate were produced before  the enquiry officer.  He compared them and found that even to naked eye  change of figure "31" to "34" was visible.  Interestingly in the said  copies the date of birth was indicated even after the change to be  25.11.1934 and not 1.10.1934 as claimed.         Horoscope is a very weak piece of material to prove age of a  person. In most cases, the maker of it may not be available to prove  that it was made immediately after the birth.  A heavy onus lies on the  person who wants to press it into service to prove its authenticity.   In fact, a horoscope to be treated as evidence in terms of Section 32  Clause (5) must be proved to have been made by a person having special  means of knowledge as regards authenticity of a date, time etc.  mentioned therein.  In that context horoscopes have been held to be  inadmissible in proof of age. (See Ram Narain Vallia v. Monee Bibi (ILR  9 Cal.613), Mst. Biro v. Atma Ram (AIR 1937 PC 101), Satish Chandra  Mukhopadhya v. Mohendra Lal Pathak (ILR 97 Cal. 849).       On the contrary, the statement contained in the admission  register of the school as to the age of an individual on information  supplied to the school authorities by the father, guardian or a close  relative is more authentic evidence under Section 32, Clause (5) unless  it is established by unimpeachable contrary material to show that it is  inherently improbable. The time of one’s birth relates to the  commencement of one’s relationship by blood and a statement therefore  of one’s age made by a person having special means of knowledge,

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relates to the existence of such relationship as that referred to in  Section 32 Clause (5).

As observed by this Court in Umesh Chandra v. State of Rajasthan  (1982 (2) SCC 202), ordinarily oral evidence can hardly be useful to  determine the correct age of a person, and the question, therefore,  would largely depend on the documents and the nature of their  authenticity. Oral evidence may have utility if no documentary evidence  is forthcoming.  Even the horoscope cannot be reliable because it can  be prepared at any time to suit the needs of a particular situation.   Entries in the school register and admission form regarding date of  birth constitute good proof of age. There is no legal requirement that  the public or other official book should be kept only by a public  officer and all that is required under Section 35 of the Evidence Act  is that it should be regularly kept in discharge of official duty.  In  the instant case the entries in the school register were made ante  litem motam.     

Therefore, the school records have more probative value than a  horoscope. Where no other material is available, the horoscope may be  considered but subject to its authenticity being established.  These  aspects were not considered by the first appellate Court and the High  Court.           The High Court was, therefore, not justified in dismissing the  Second Appeal by observing that there was no substantial question of  law involved.   

Since the first appellate Court acted on irrelevant materials and  left out of consideration relevant materials question of law was  involved. The suit that was filed was rightly dismissed by the Trial  Court.     Accordingly the appeal is allowed.  No costs.