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CASE NO.: Appeal (civil)  2798 of 2005

PETITIONER: U.P. Madhyamik Shiksha Parishad & Ors.

RESPONDENT: Raj Kumar Agnihotri

DATE OF JUDGMENT: 21/04/2005

BENCH: Ashok Bhan & Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(C) No.13097 of 2003)

Dr. AR. Lakshmanan, J.

       Leave granted.          This appeal is directed against the final judgment and order dated 10.03.2003  passed by the Allahabad High Court, Lucknow Bench, Lucknow in Second Appeal No.  334 of 1999 whereby the High Court allowed the second appeal filed by the  respondent-herein.   

Respondent was working as S.D.I. in the Education Department.  As per his  service book, his date of birth was 30.07.1941.  The Governor using the powers under  conditional part of Article 309 of the Constitution of India framed the following  Notification.  The notification dated 28.05.1974 reads thus:-

"State of U.P. Niyukti Vibhag Anubhag-4 Notification 28th May, 1974

No. 41/269 Niyukti-4 Governor using the powers under conditional part of  Article 309 of the Constitution of India, frames following Niyamawali:-

1.      Short title an commencement /1/ This Niyamawali will be called date  of birth determination Niyamawali, 1974 for the purpose of appointment in  service in U.P.  

2.      It shall be enforced at once.

/2/.    Exact date of birth or determination of Age of a Government servant  the date of birth or determination of age of a Government servant which has  been written in his High School Certificate or equivalent to it after passing  the examination or where a Government servant has not passed any such  examination, the date of birth or age which has been written in his service  book at the time of entering in Government service, in regard to his  services, for all the purposes, whether entitled for  promotions/supersession/pre-retirement or retirement or retrial benefits, the  date of birth or age as mentioned therein.  Any application form or  application for correction in his date of birth or age will not be accepted in  any manner having any circumstances of any cost.  

3.      The enforcement of this Niyamawali, a relevant service rule or any  order which in corporate some reverse matters even shall be effective.  

                                                               By Order

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/Gulam Hussain/ Commissioner & Secretary  

\005\005\005"    

The respondent-herein, after a gap of 35 years, filed a Regular Suit No. 176 of  1995 with the prayer to correct his date of birth from 30.07.1941 to 16.10.1945 on the  ground that his date of birth was wrongly entered in his High School Certificate of the  year 1960 issued by the Madhyamik Shiksha Parishad (hereinafter called "the  Parishad"), U.P., Allahabad.  A written statement was filed by the Secretary of the  Parishad in the said suit explaining the facts that the respondent himself filled up the  High School examination form for the year 1960, which was duly forwarded by the  Principal concerned after going through the relevant records therein and in view of the  High School examination form of the year 1960, the High School Certificate was issued  by the Secretary of the Parishad wherein the respondent’s date of birth was mentioned  as 30.07.1941.  It is thus seen that the respondent started litigation for the correction of   his date of birth after a gap of 35 years and just four years of his retirement.  

The Court of Civil Judge [Junior Division], Sitapur delivered its decision dated  17.07.1999 in favour of the respondent with the direction to correct the date of birth  from 30.07.1941 to 16.10.1945.  Aggrieved by the orders passed in the civil suit, the  Parishad filed Civil Appeal No. 73 of 1999 before the Ist Addl. District Judge, Sitapur  who by his order dated 07.08.1999 allowed the appeal of the respondent and held that: "\005. It is admitted by the plaintiff that he himself put his signatures on the  High School Examination Form.  So he is responsible for the entries in this  form."

"\005\005\005 The evidence given by plaintiff in this case is not of such nature that  may be said to be leading to this irresistible conclusion that his date of birth  is 30.10.45 and, which may be said to the conclusive and irrefutable proof of  the fact that his date of birth is 30.10.45 and that date of birth in his high  school examination certificate i.e. 30.7.41 is incorrect and that it should be  corrected.  The finding of learned lower court on this point cannot be upheld  as the finding is not based on such conclusive and irrefutable proof which  may lead to the irresistible conclusion that the date of birth of plaintiff- respondent is 16.10.45 and finding on this point is liable to be set aside.   Plaintiff/respondent have failed to prove his allegation that his date of birth is  16.10.45 by any irrefutable conclusive proof.  Point for determination No.1 is  decided against the plaintiff/respondent and in favour of the defendant- appellant\005\005.."

The appellate Court also held that the respondent’s suit was barred by limitation  as the relevant rules framed by the U.P. Board of Education had not been followed by  the respondent.  As per Rule 7 of G.R. any application for correction is to be made  within two years of issuing certificate, while in the present case it was made after more  than 15 years i.e. on 25.05.1981 and the suit was filed on 07.04.1995.  

Being aggrieved by the aforesaid order, the respondent filed Second Appeal No.  334 of 1999 before the High Court.  The High Court passed an interim order dated  15.09.1999 directing the Secretary of the Parishad to enforce the decision dated  17.07.1999 passed by the trial Court with the condition that if the second appeal is  dismissed benefit given by the judgment and decree of the trial Court would not be  available to the respondent herein.  The High Court also stayed the operation of the  judgment dated 07.08.1999 passed in Civil Appeal No. 73 of 1999.  The High Court  again passed another order dated 27.07.2000 to comply with the interim order dated  24.05.2000.  The High Court heard the second appeal and passed an order directing  the Secretary of the U.P. Board to be present before the Court on 10.08.2000 to inform  the Court whether the order dated 24.05.2000 had been complied with or not.  The  notice was not conveyed to the Secretary till 09.08.2000.  The Secretary could not be  present and the High Court issued a non-bailable warrant and fixed the date of hearing  on 28.08.2000.  Aggrieved by the orders dated 24.05.2000 and 27.07.2000, the  appellant filed the above special leave petition No. 16375-77 of 2000 before this Court.   This Court stayed the operation of the impugned orders on 02.03.2001.  This Court

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allowed the appeals and set aside the impugned orders and directed the High Court to  dispose of the second appeal as expeditiously as possible.  The High Court, by the  impugned judgment dated 10.03.2003, allowed the second appeal filed by the  respondent.  Being aggrieved, the above appeal was filed by the appellant in this Court.  

We heard Dr. R.G. Padia, learned senior counsel for the appellants and Mr. B.B.  Singh, learned counsel for the respondent and carefully perused the judgments and  other annexures filed along with the appeal.   

Dr. R.G. Padia, learned senior counsel appearing for the appellants, made the  following submissions at the time of hearing:-

1.      The High Court has failed to appreciate that this Court in several cases  has held that correction in entries made in government records on the  basis of which the government servant got the service, cannot be allowed  to be changed, just a few years before retirement; 2.      The High Court has failed to appreciate that the respondent had himself  admitted that the signature in the High School Examination form was  signed by him and, therefore, his plea that the form was filled by his  teacher is not at all sustainable and has been taken just to seek  extension of service; 3.      The High Court on an erroneous appreciation of facts and law held that  there was a continuing cause of action; 4.      The High Court failed to appreciate that since the first appellate Court  held that the evidence produced by the respondent could not be said to  lead to irresistible conclusion that the correct date of birth of the  respondent is 16.10.1945 and there was no question of law involved in  the case and the High Court ought not to have interfered in the matter by  re-appreciating the evidence; 5.      The respondent’s claim regarding the correction of his date of birth could  not be entertained after several decades, specially on the eve of  superannuation.

Mr. B.B. Singh, learned counsel for the respondent, per contra submitted that  the first appellate Court ignored the vital documents and oral evidence which had been  adduced before the trial Court and that the trial Court after examining the documents  came to the conclusion that the date of birth of the petitioner was 16.10.1945.  He has  invited our attention to some of the annexures filed along with the appeal.

Mr. B.B. Singh further submitted that from the mere perusal of the documentary  and oral evidence led by the parties, it is established that the respondent has agitated  the matter of correction of date of birth in High School Certificate as back as in the year  1967 and it is also established from the records that the respondent had moved an  application on 27.07.1991 clearly stating that his date of birth was 16.10.1945 and the  date of birth in the High School Certificate has been wrongly mentioned as 30.07.1941  without any basis and against the school records.  Concluding his arguments, Mr. B.B.  Singh submitted that various documents and correspondences between the respondent  and the Education Department and with various others would clearly show that the date  of birth of the respondent was only on 16.10.1945 and that the lower appellate Court  had proceeded on altogether perverse approach without considering the oral  documentary evidence led by the respondent/plaintiff and reversed the finding of the  trial Court which was based upon proper appreciation of the evidence.   

From the above background of facts, the following questions of law arise for  consideration: a)      Whether the respondent’s claim for change in date of birth from  30.07.1941 to 16.10.1945 is time barred; b)      Whether the High Court committed an error in not appreciating the  Government Notification and the law laid down by this Court that the suit  was barred by limitation; c)      Whether even on the evidence on record, it could be said that the  evidence was of such a nature as to lead to conclusive proof of the date  of birth of the respondent; d)      Whether Rule 2 of the U.P. Recruitment Service (Determination of the

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Date of Birth) Rules, 1974 stipulate that no application or representation  shall be entertained for correcting any date or age record and the entry  made in the service book shall be deemed to be the correct date of birth.

For the sake of convenience, Rule 2 of the above Rules, 1974 is reproduced  hereunder:- "2. Determination of correct date of birth or age.- The date of birth of a  Government Servant as recorded in the certificate of his having passed  High School or equivalent examination at the time of his entry into the Govt.  service or where a Government Servant has not passed any such  examination as aforesaid or has passed any such examination after joining  the service, the date of birth of the age recorded in his service book at the  time of his entry into the Government service shall be deemed to be his  correct date of birth of age as the case may, be for all purposes in relation to  his service including eligibility for promotion, superannuation, premature  retirement or retirement benefits and no application or representation shall  be entertained for correction of such date or age in any circumstances  whatsoever."

In the instant case, the respondent had himself admitted that the signature in the  High School Examination form was signed by him and, therefore, his plea that the form  was filed by his teacher is not at all sustainable.  We have also perused the judgment of  the appellate Court.  The appellate Court has after appreciating facts and law rightly  held that the suit was barred by limitation as the relevant rules framed by the U.P.  Board of Education had not been followed by the respondent.  As per Rule 7 of G.R.,  any application for correction is to be made within two years of issuing certificate, while  in the present case it was made after more than 15 years i.e. on 25.05.1981 and the  suit was filed on 07.04.1995.  The High Court, in our view, has wrongly held that there  was a continuing cause of action.  Even if for the sake of arguments if it is accepted  that document No. 63 [Ga] i.e. letter dated 13.10.1981 was written, even then the  respondent’s suit was barred by limitation as he filed the suit in 1995 after more than 14  years.  The High Court has wrongly relied on the alleged application dated 27.02.1971  and Exhibit 63 & 64 and has failed to appreciate that the lower appellate Court after  perusing the evidence categorically held that the respondent could have summoned the  record from Kakori Shaheed Inter College, Jalalabad, Shahjahanpur when he got  admission in Class IX and documents of his date of birth should have been produced  by him at the time of admission in Class IX.  These documents were the best  documents to prove the respondent’s case.  The respondent’s failed to produce these  documents before the Court.  As rightly argued by learned counsel for the appellant,  the respondent’s claim regarding the correction of his date of birth could not be  entertained after several decades, specially on the plea of superannuation.  The  respondent being an educated man having completed his education upto M.A.Lt. and  having remained in service for about four decades reaching the age of his  superannuation discovered his age as incorrect by over four years short to the record  one could be unthinkable and unbelievable.  The respondent’s date of birth having  been written and declared by him in his examination form for High School and entered  as such in High School Certificate and also entered as such in his service record by  him, could not be changed without having recourse to the law, the education rules and  the service rules and the provisions governing the respondent against settled law.  

We have already noticed that the respondent’s suit is time barred as he has filed  the suit in 1995 whereas High School Examination Certificate which is sought to be  corrected is of 60 and this certificate was issued in time and he is seeking this  correction after 39 years.  It may be mentioned at this point of time that after the written   statement of the defendant/appellant-herein the plaintiff/respondent-herein has not filed  any replications with counter allegation that how and why his original suit is not time  barred.  This apart, any correction of any clerical error can be made if the candidate has  drawn the attention and has moved an application through concerned Principal within  two years of issuing the certificate.  As per Rule 7 of G.R. any application for such  correction is to be made within two years of issuing of the certificate.  In the present  case, the respondent has not moved any application within two years of this certificate  being issued through concerned Principal.  

Learned counsel for the appellant has also relied on the following judgments of

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this Court:- 1.      State of U.P. and Others vs. Gulaichi (Smt), (2003) 6 SCC 483  In this case, Rule 2 of the U.P. Recruitment of Service  (Determination of Date of  Birth) Rules, 1974 and U.P. Recruitment of Service (Determination of Date of Birth)  (First Amendment) Rules, 1980 was under consideration by this Court.  This Court,  after analysing various judgments referred to before them, came to the conclusion as  under: "12. In the instant case the Rules and the Amendment Rules referred to  above clearly indicate the permissible area for correction of the date of birth.   In view of the specific provisions made, it was not permissible to effect  change.  Additionally, the first appellate court and the High Court seem to  have lost sight of the fact that the person who endorsed changes was not  authorized to do so.  The original service-book was produced before us by  the learned counsel for the appellants.   Though the learned counsel for the  respondent submitted that we should not look into it, for the purpose of  arriving at the truth, we overruled the objection and looked at the original  document, which undisputedly was exhibited during trial.  The entry i.e. 31- 7-1929 appears to have been made simultaneously by one and the same  person at the time when other entries were made in FR Form 13.  The  respondent has herself signed the page at Serial No. 8, whereas the entry  relating to the date of birth is at Serial No.5."  2.      State of Uttaranchal and Others vs. Pitamber Dutt Semwal, (2002) 1  UPLBEC 441 SC.  In this case, here again, this Court was considering Rule 2 of the U.P.  Recruitment Service (Determination of Date of the Birth) Rules, 1974 and held as  under: "6. These rules, the validity of which have not been challenged, clearly  stipulate that no application or representation shall be entertained for  correcting any date or age record and the entry made in the service book  shall be deemed to be the correct date of birth.  Be that as it may, even de  hors the said rule, we are of the opinion that the plea of the respondent that  the date of birth was wrongly recorded was highly belated.  He joined  service in 1964, the service book was prepared in 1965 and according to  the appellant, he has signed the said service book at least on three  occasions.  In any case, the plea of the wrong recording of the age in the  service book has been taken, nearly thirty years after the service book was  prepared.  In our opinion, the Division Bench was in error in ignoring the  provisions of the said Rule 2 and even otherwise, in the facts of this case,  there was no occasion for the High Court to have interfered with the  decision of the appellant."  

3.      State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302, In this case, this Court held that the rule provided that an application for  alteration of recorded date of birth would be entertained only if made within five years  after entering the service.  This Court held that an employee already in service at the  time of enforcement of such rule should make the application for correction within five  years from the date of enforcement of the rule, otherwise he would lose his right to  make such an application and the Government servant would not be permitted to  challenge the entry at the fag end of his service. 4.      Executive Engineer, Bhadrak (R&B) Division, Orissa and Others vs.  Rangadhar Mallik, 1993 Supp (1) SCC 763. In this case, this Court was considering Rule 65 of the Orissa General Finance  Rules stipulating that representation for correction of date of birth made near about the  time of superannuation shall not be admitted.  This Court held that the representation  for correcting the date of birth made by respondent 18 years after is not maintainable in  law since the entry regarding date of birth made in the service record was on the basis  of the horoscope produced by the employee himself and after obtaining his signature.

5.      Government of Andhra Pradesh and Another vs. M. Hayagreev Sarma,  (1990) 2 SCC 682.  A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984  was under consideration in this case by this Court.  The date of birth of the employee  was recorded in the service book on the basis of school certificate at the time of entry  into service.  The employee’s application for alteration in the date of birth so recorded  was finally rejected prior to coming into force of the rules.  A subsequent claim was

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made by the employee for alteration after commencement of the rules.  This Court held  that the subsequent claim for alteration after the commencement of the rules even on  the basis of the extracts of entry contained in births and deaths register maintained  under Births, Deaths and Marriages Registration Act, 1886 was not open.  

6.      Union of India vs. Harnam Singh, (1993) 2 SCC 162. In this case, there was a delay of five years in seeking for alteration prescribed  in Note 5 to FR 56(m) as substituted in 1979.  This Court held that those already in  service prior to 1979, for a period of more than five years, obliged to seek alteration  within the maximum period of five years from the date of coming into force of amended  note 5 in 1979.  Alteration sought by the employee in 1991, 35 years after his induction  into the service during which period he had several occasions to see the service book  to raise any objection regarding his date of birth cannot be allowed in view of  unexplained and inordinate delay.  

7.      Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Another,  AIR 1995 SC 1499.

   "Entertainment by High Courts of writ applications made by  employees of the Government or its instrumentalities at the fag end of  their services and when they are due for retirement from their services,  is unwarranted.  It would be so for the reason that no employee can  claim a right to correction of birth date and entertainment of such writ  applications for correction of dates of birth of some employees of  Government or its instrumentalities will mar the chances of promotion  of his juniors and prove to be an undue encouragement to the other  employees to make similar applications at the fag end of their service  careers with the sole object of preventing their retirements when due.   Extraordinary nature of the jurisdiction vested in the High Courts under  Article 226 of the Constitution is not meant to make employees of  Government or its instrumentalities to continue in service beyond the  period of their entitlement according to dates of birth accepted by their  employers, placing reliance on the so-called newly found material.    The fact that an employee of Government or its instrumentality who  will be in service for over decades, with no objection whatsoever  raised as to his date of birth accepted by the employers as correct,  when all of a sudden comes forward towards the fag end of his service  career with a writ application before the High Court seeking correction  of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a  sufficient  reason for the High Court, not to entertain such applications  on grounds of acquiescence, undue delay and laches.  Moreover,  discretionary jurisdiction of the High Court can never be said to have  been reasonably and judicially exercised if it entertains such writ  application, for no employee, who had grievance as to his date of birth  in his ’service and Leave Record’ could have genuinely waited till the  fag end of his service career to get it corrected by availing of the  extraordinary jurisdiction of a High Court."   

8.      In The Secretary & Commissioner Home Department & Ors. Vs. R.  Kirubakaran, JT 1993 (5) SC 404, this Court held : "An application for correction of the date of birth by a public  servant cannot be entertained at the fag end of his service.  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 the promotion forever.  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 clear case on the  basis of materials which can be held to be conclusive in nature, is

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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 and before any such direction is issued, the Court 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 time fixed by  any rule or order.  The onus is on the applicant to prove about the  wrong recording of his date of birth in his service book.  

\005.. As such whenever an application for alteration of the date  of birth is made on the eve of superannuation or near about that time,  the Court or the Tribunal concerned should be more cautious because  of the growing tendency amongst a section of public servants, to raise  such a dispute, without explaining as to why this question was not  raised earlier.  In the facts and circumstances of the case, it is not  possible to uphold the finding recorded by the Tribunal."  

It is thus seen from the above quoted judgments that this Court has consistently  taken the view that correction in entries made in Government records on the basis of  which the Government servant got the service cannot be allowed to be changed just a  few years before retirement or at the fag end of his retirement.              In the instant case, the U.P. Recruitment to Services (Determination of Date of  Birth) Rules came into force w.e.f. 28.05.1974.  Rule 2 of the Rule was amended by the  first amendment Rules, 1980 of 07.06.1980.  The existing rule and the substituted rule  are extracted herein below:

COLUMN 1 (Existing rule) COLUMN 2 (Rule as hereby substituted) 2. The date of birth of Government servant  as recorded in the certificate of his having  passed the High School or equivalent  examination, or where a Government  servant has not passed any such  examination as aforesaid, the date of birth  or the age recorded in his service book at  the time of his entry into Government  service, shall be deemed to be his correct  date of birth or age, as the case may be,  for all purposes in relation to his service  including, eligibility for promotion,  superannuation, premature retirement or  retirement benefits, and no application or  representation shall be entertained for  correction of such date or age in any  circumstances whatsoever.   2. The date of birth of a Government  servant as recorded in the certificate of his  having passed the High School or  equivalent examination at the time of his  entry into the Government service or  where a Government servant has not  passed any such examination as  aforesaid or has passed such examination  after joining the service, the date of birth  or the age recorded in his service book at  the time of his entry into the Government  service shall be deemed to be his correct  date of birth or age, as the case may be,  for all purposes in relation to his service,  including eligibility for promotion,  superannuation, premature retirement or

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retirement benefits, and no application or  representation shall be entertained for  correction of such date or age in any  circumstances whatsoever.                  As per the existing rule, the date of birth or the age recorded in his service book at the  time of entry into the Government service shall be deemed to be the correct date of  birth or age, as the case may be, for all purposes and no application or representation  shall be entertained for correction of such date or age in any circumstances  whatsoever.  The amended rule of 1980 was deemed to have come into force w.e.f  28.05.1974 and as per the substituted Rule, the date of birth or the age recorded in the  service book at the time of entry into the Government service shall be deemed to be the  correct date of birth or age, as the case may be, for all purposes and that no application  or representation shall be entertained for correction of date of birth or age in any  circumstances whatsoever.  The respondent has given his date of birth as 30.07.1941  at the time of entry into service which has also been recorded in the service records of  the respondent.  The above amended rule which come into force w.e.f. 28.05.1974  stipulates that no application or representation shall be entertained for correction of  such date or age in any circumstances whatsoever and that the date of birth or age  recorded in the service book at the time of his entry into government service shall be  deemed to be his correct date of birth or age as the case may be for all purposes.          In view of the above rule, we hold that the correct date of birth of the respondent  is only 30.07.1941 and the claim now made by the respondent to correct his date of  birth from 30.07.1941 to 16.10.1945 cannot at all be entertained or encouraged.  

We do find much force in the argument of the appellants counsel that the suit  was barred by limitation of time.  In these circumstances, the respondent’s suit is liable  to be dismissed and the findings of the lower appellate Court is to be affirmed and the  order passed by the High Court is liable to be set aside.              In view of the foregoing discussion, we have no hesitation to set aside the  judgment of the High Court dated 10.03.2003 in second appeal No. 334 of 1999 and  allow this appeal as prayed for by the appellant.  However, we order no costs.