Jammu & Kashmir High Court
Abdul Rashid Sogami vs State Of Jammu And Kashmir And Ors. on 28 September, 2000
Author: R.C. Gandhi
Bench: R.C. Gandhi
JUDGMENT
1. Petitioner, Range Officer of the Forest Department is due to superannuate on 30th September, 2000. He seeks correction of his recorded date of birth 17-8-1942 to 17-9-1947 on the ground that his date of birth is17th Magh 2009 B.K.
2. The petitioner has entered the service of the respondent about three decades ago. On commencement of the service, his Service Book was prepared entering his date of birth 17-8-1942 on the basis of the certificate submitted by the petitioner. He remained silent through out and made grievance of change of the recorded date of birth, by presenting anapplication in the month of November 1999 to the DFO, Pirpanchal Division, Budgam. It was referred by the DFO to the Deputy Commissioner Budgam, who further referred to the Tehsildar Chadoora, for verification. DFO Pirpanchal Division vide his order dated 6-3-2000 submitted the case of the petitioner intimating that the recorded date of birth of petitioner is 17-9-1942 and he is due to superannuate in the month of September 2000. The plea of learned counsel for the petitioner is that according to the actual date of birth that is 17th Magh 2009 Bikrami, he has to retire in the year 2005 and thus the respondents should not superannuate the petitioner and instead should record in the service records the actual date of birth. Learned counsel has submitted that the petitioner is entitled to seek correction in the service record, relying upon the law laid down in SLJ 1994 381, 1988 SLR 519, 1978SLJ 292 and 1984 SLJ 592.
3. The state has promulgated SRO 310 of 1993, the provisions of which envisage that any dispute with regard to the date of birth of an employee can be raised by him within six months from the date of its publication and not thereafter. Petitioner admittedly has not raised this dispute within that stipulated period. He for the first time raised the dispute in November1999. The Petitioner, therefore, is not entitled to seek correction of the date of birth which was recorded in his service book about three decades ago. Supreme Court while dealing with similar proposition of facts and law in Chief Medical Officer v. Khadeer Kadri reported in AIR 1995 SC 850 has observed that :
"No doubt, sub-rule (5) of the Rule 2 of the Andra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules, 1984, provides power for correction of the bonafide mistake in recording the date of birth. It can not be said that it is clerical mistake. The date of birth having been given and recorded in the service register as early as in 1951, it was a bonafide mistake. The respondent claimed that he discovered the mistake in 1991 that his date of birth instead is July 16, 1934, but it was recorded as November 14, 1933. This is only a ruse to get over the bar of limitation to have the date of birth entered in the service record corrected. The rules prescribe the procedure for laying the application within three years from the date of entering into service. In 1976 executive instructions were issued for correction of date of birth which were replaced by statutory rules issued in 1984. The latter also prescribes the procedure. He did not avail of the opportunity when twice, it was available to him to have it corrected. It would clearly show that subsequent belated attempt is not a bonafide one but to have the corrections made to his advantage after the bar of limitation created by the rules."
4. The plea of learned counsel for the petitioner that he came to know about the wrong date of birth recorded in the service record in November 1999 is misplaced as the petitioner has signed the service book when it was prepared at the commencement of the service and signed the relevant column of the service book in token of the correctness of the entries recorded the service book.
5. The petitioner is a qualified person and he cannot take shelter that he was not aware of the date of birth recorded in his service record. Supreme Court in Union of India v. Saroj Bala 1996 SC 1000 has held that candidate belonging to an educated family entering service after competing in All India Service Examination and remaining in Service for 18 years is not entitled to seek correction of date of birth.
6. It is settled preposition of law that the public servant who approaches the court, like the petitioner, at the fag end of his service isn't entitled to seek correction of the date of birth as pronounced by the Supreme Court in Burn Standard Co. Ltd. v. Dinabandhu Majundar, AIR 1995 SC1500, holding that :
"The fact that an employee of Govt. or its instrumentality who will be in service for over decades, with no objections whatsoever raised as to his date of birth accepted by the employer 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 in our view should be a sufficient reason for the High Court not to entertain such applications on grounds of acquiescence undue delay and laches. More-over discretionary jurisdiction of the High Court can refer 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 "service and leave record" could have genuinenly waited till the fag end of his service career to get it corrected by availing of the extra-ordinary jurisdiction of a High Court. Therefore, we have no hesitation in holding that ordinarily High Court should not, in exercise of its discreationary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality towards the fag end of his service, seeking correction of his date of birth entered in his" Service and Leave record or Service Register with an avowed object of continuing in service beyond the normal period of his retirement."
7. The date of birth of the petitioner supplied by him to the respondents has been recorded in the service record of the petitioner at the commencement of the employment. Till 1999 the petitioner has not challenged the recorded date of birth in the Service book which has been also in the notice of the petitioner as he has also put his signatures on the relevant page on the service book wherein the date of birth of the petitioner has been recorded. In such a situation the principle of Estoppel applies and the petitioner can not seek change of Date of Birth in view of the law laid down by the SC in 1997 in case Union of India v. C. Rama Sawami reported in1997 SC page 2057, para 25 and 26 which are extracted below :
25. "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 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, and 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 person who is sought to be appointed may be a relevant consideration to assess his suitability.
26. In such a case, even in the absence of a statutory rule like Rule 16-A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the court also ought not to grant any relief even if it is shown that the date of birth, as ordinarily recorded, was incorrect because the candidate concerned had represented different date of birth to be taken in consideration, obviously with a view that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly applicable and relief of change of date of birth can be legitimately denied.To that extent the decision in Manak Chand's case (1976 Lah IC 1233) does not lay down the correct law."
8. The petitioner has approached the court just 15 days earlier to the date of his retirement. Petitioner, therefore, in view of the above narrations of facts and law is not found entitled to the relief prayed for. Petition is accordingly dismissed.