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CASE NO.: Appeal (civil)  854 of 2004

PETITIONER: State of Punjab and Ors.                 

RESPONDENT: S.C. Chadha      

DATE OF JUDGMENT: 09/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

(Arising out of SLP(C) No. 23073/2003)

ARIJIT PASAYAT,J

       Leave granted.

       The State of Punjab questions correctness of the  judgment rendered by a Division Bench of the Punjab and  Haryana High Court, whereby it directed correction of date  of birth of the respondent from 19.6.1944 as recorded  earlier in the official documents to 13.12.1945.  

       Background facts giving rise to the appeal are as  follows:

       The respondent joined Punjab Institute of Textile  Technology, Amritsar on 11.7.1983. At the time of his entry  into services, his date of birth was recorded as 19.6.1944.   In the certificate for Higher Secondary Examination which he  passed in the year 1962, his date of birth was recorded as  19.6.1944. He graduated in Science (Textile) in the year  1967. After his initial appointment with Punjab Institute of  Textile Technology he subsequently worked as a senior  officer in several public sector undertakings like  Government Industrial Development cum Service Centre  Textile, Ludhiana, National Textile Corporation Ltd., Delhi,  Punjab State  Small Industries Corporation Ltd., Haryana and  Punjab State Handloom and Textile Development Corporation.  In the service records of all the aforesaid organizations,  the date of birth was recorded as 19.6.1944. On 19.1.1993 he  was absorbed as Treasury Officer in the Department of  Finance (T & A), Punjab, Chandigarh which he subsequently  joined. By a Notification dated 21.6.1994 an amendment was  made in the Punjab Civil Services Rules Vol.I, Part I. In  the amended rule it was provided that employees already in  service of the Punjab Government may apply for change of  date of birth, within a period of two years from coming into  force of the amended rules, on the basis of confirmatory  documentary evidence. It was also stated in the Notification  that no request for change of date of birth was to be  entertained after the expiry of two years period. The rules  were further clarified on 10.5.1995 wherein it was provided  that the date of birth of any government employee was not be  changed without holding a special enquiry to be conducted by  the concerned Deputy Commissioner. Respondent submitted his

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application on 26.7.1995 for changing the date of birth as  recorded. The circular dated 10.5.1995 was subsequently kept  in abeyance on 5.10.1995 and finally withdrawn on  13.10.1995. On 1.10.1996 the State Government issued  instructions to the effect that applications received during  the period of notification dated 21.6.1994 and the last date  till which it was in operation were to be disposed of on  merits. The Deputy Commissioner, Jallandhar made enquiries  with regard to the application of the respondent for change  of date of birth. The Deputy Commissioner by his letter  dated 26.3.1997 informed the Director (T & A) Department of  Finance that on the basis of enquiry conducted the actual  date of birth of the respondent to be 13.12.1945 and not  19.6.1944. However, the Government did not accept the  request for change of date of birth and rejected the same by  order dated 27.7.1999.  

       Initially it was challenged before the High Court by  writ petition which was disposed of with the direction to  the official respondents to supply a copy of the order which  was the basis of the communication dated 20.7.1999. The same  was supplied to the respondent, who filed a writ petition  before the High Court which came to be disposed of by the  impugned judgment.  

       Stand of the respondent-writ petitioner before the High  Court was that there was no belated move to get the date of  birth corrected. In fact the application was made within the  period indicated in the notification dated 21.6.1994. Since  the Deputy Commissioner concerned was the competent  authority to make enquiry and his report was in favour of  the respondent, the correction as requested should have been  done. The State Government refuted the submissions and took  the stand that approach was made more than 3 decades after  entry into service. The respondent had served in several  organizations and undertakings as noted above without even  raising any shadow of dispute about the correctness of the  date of birth as recorded. Even the Higher Secondary  Examination Certificate on the basis of which he entered  into service, indicated the date of birth to be 19.6.1944.  On the basis of self-serving documents filed by the writ  petitioner, the Deputy Commissioner should not have held  that the correct date of birth is 13.12.1945 and not  19.6.1944. The High Court accepted the stand of the  respondent-writ petitioner and held that since the report  was given by the Deputy Commissioner after making enquiries,  the same should have been accepted. As the request for  change was made within the period permitted by the amended  rules notified by the notification dated 21.6.1994, the writ  petitioner was entitled to the relief claimed.  

       Learned senior counsel appearing for the State of  Punjab submitted that the High Court has lost sight of  several relevant aspects. It did  not even consider the most  relevant aspect about raking up a dispute about the date of  birth more than three decades after entry into service. Even  though in 1994 the rules were amended, no explanation  whatsoever has been offered as to why no grievance was made  prior to the amendment of rules. It has also not been shown  as to how the entry in Higher Secondary Examination  Certificate was wrong. The Deputy Commissioner relied upon  some documents which came into existence much later. The  certificate issued under the Birth and Death Registration  Act, 1969 has no relevance as the said Act was not even in  operation when the respondent was born. Certificate in Form-

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9 was issued on 17.12.1997 i.e. after the application for  correction of date of birth was made. The certificates given  by some counsillors are really of no consequence.  They were  all issued in the year 1996. The respondent has also not  placed any material to show as to why and under what  circumstances, the Higher Secondary Examination Certificate  recorded the date of birth to be 19.6.1944 if it was not the  correct date. Even in the application filed by the  respondent while applying for appointment as Treasury  Officer, the respondent himself had indicated his date of  birth to be 19.6.1944.

       Learned counsel for the respondent submitted that the  High Court took note of the relevant facts and, accepted the  Deputy Commissioner’s report as he was the competent  authority. Therefore, no interference is called for.   

       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) 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:

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"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 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,

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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.   

       In the instant case the Higher Secondary Examination  Certificate was issued on 3.6.1962. If the said certificate  disclosed a wrong date, it is not explained by the  respondent as to why he did not make any move to get it  corrected. Merely because in 1994 an opportunity was granted  to the Government employees to get their date of birth  corrected, that does not take away the affect of inaction

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and continued silence for more than three decades. Even in  the application made for employment in the year 1992-93 the  date of birth was indicated, as noted above to be 19.6.1944.  No contemporaneous document was produced to show that  recording of the date of birth to be 19.6.1944 was wrong.  

       In view of the aforesaid, the inevitable conclusion is  that the High Court was not justified in directing  correction of the date of birth in the service records of  the respondent. The appeal is allowed but without any order  as to costs.