Rajasthan High Court - Jaipur
State Of Raj & Ors vs Gulab Chand Jain on 25 July, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Second Appeal No.55/2009 The State of Rajasthan through Chief Secretary, Secretariat, Jaipur and Others ...Defendants-appellants Versus Gulab Chand Jain Son of late Shri Moti Lal Jain ...Plaintiff-respondent 2. S.B. Civil Second Appeal No.56/2009 The State of Rajasthan through Chief Secretary, Secretariat, Jaipur and Others ...Defendants-appellants Versus Gulab Chand Jain Son of late Shri Moti Lal Jain ...Plaintiff-respondent Date of Order ::: 25.07.2011 Present Hon'ble Mr. Justice Mohammad Rafiq Shri R.B. Mathur with Shri Achintya Kaushik, counsel for defendants-appellants Shri Arun Sharma, counsel for plaintiff-respondent #### //Reportable// By the Court:-
These two appeals have been filed by the State of Rajasthan against judgment and decree dated 21.01.2009 passed by Additional District Judge No.3, Jaipur City, Jaipur whereby the appeals filed by defendant appellant State of Rajasthan against plaintiff-respondent Gulab Chand Jain assailing judgment and decree of the Additional Civil Judge (Junior Division) No.5, Jaipur City, Jaipur dated 03.09.2008 was dismissed and the said judgment and decree was upheld. Learned Additional Civil Judge by his aforesaid judgment decreed the suit filed by the plaintiff-respondent holding that the case of the petitioner for change of his date of birth from 01.09.1946 to 01.10.1949 is worth consideration and accordingly the plaintiff was required to make a representation to the defendant within a period of fortnight which the defendants were directed to decide within two months. It was further directed that in the event of representation of the plaintiff being allowed, he would be entitled to receive all the consequential benefits at par with his immediate junior. Both the plaintiff as well as defendants dissatisfied with the aforesaid judgment, filed appeals before Additional District Judge. While appeal of defendant State of Rajasthan was dismissed and appeal filed by plaintiff Gulab Chand Jain was allowed with the declaration that correct date of birth of the plaintiff is 01.10.1949 instead of 01.09.1946 and defendant government was directed to make necessary correction in his service record accordingly and the order dated 31.08.2006 retiring him from service was set aside with further direction to reinstate him in service.
Plaintiff filed the suit for declaration and permanent injunction that his date of birth should be in the record has wrongly been indicated as 01.09.1946 whereas his correct date of birth is 01.10.1949. Plaintiff for the first time came to know his exact date of birth on 18.11.1997. It was the time when his father passed away, he while looking into his old papers and other belongings, plaintiff found three affidavits attested by Sub Divisional Magistrate, Bharatpur, on 20.07.1972 along-with certificate issued by Sarpanch, Gram Panchayat, Kumher dated 18.07.1972. He from those documents came to learn that his correct date of birth was 01.10.1949. In backdrop of these facts, prayer was made for declaration and injunction against the defendants.
Plaintiff, in support of his case, produced as many as five witnesses, namely, PW-1 Gulab Chand, PW-2 Roopchand, PW-3 Padamchand, PW-4 Lalchand and PW-5 Shiv Singh, and got seventeen documents exhibited. The defendants, in rebuttal, however, produced Kishan Lal Agarwal in witness-box as DW-1 and got one document exhibited as Exhibit A-1, relating to service book.
Shri R.B. Mathur, learned counsel for defendants-appellants argued that findings recorded by the courts below are wholly perverse and erroneous. All the documents including service book, state insurance policy, general provident fund papers indicate 01.09.1946 as the date of birth of the plaintiff. Filing of the suit was not bona-fide because the suit was filed by the plaintiff at the fag end of his career. A concocted and fabricated story was put forth on the basis of alleged date of birth of different five brothers and argued that if date of birth of his elder/younger brothers was taken into consideration, it would not be possible that his date of birth would be 01.09.1946. No reliable document to support the claim of the plaintiff that he was born on 01.10.1949 has been produced. The oral statement of the witnesses could not be relied on. It was argued that the plaintiff had for the first time started making efforts to get his date of birth changed in 2000, though he claims that this process was initiated by his father in 1972. Learned counsel argued that Rule 8A of the Rajasthan Service Rules has been completely overlooked by the learned courts below, which inter-alia provides that if a person already in government service on or after 01.01.1979, the date of birth as recorded in the service book/service roll shall be treated as final and will not be changed subsequently on the basis of any school certificate. Similarly Rule 160 of the Rajasthan Service Rules provides that a service book in such form as may be prescribed by the government, shall be maintained for every government servant from the date of his first appointment in government service and the duplicate service book will be supplied to the government servant. The entries therein shall be updated from time to time on a request made by the government servant. Rule 161 of the Rules provides that entry made in the service record on the basis of high school record cannot be disputed.
Learned counsel relied on the judgment of this court in Bhanwar Lal Sharma v. Board of Secondary Education, Rajasthan, Ajmer 2001 (5) WLC 701, and argued that the date of birth of an employee cannot be changed subsequently against the entries which are shown in the certificate of High School/Higher Secondary. A fabricated story has been concocted by the plaintiff, which does not inspire confidence. Learned counsel also relied on the judgment of the Supreme Court in State of Punjab v. Mohinder Singh AIR 2005 SC 1868 for the same proposition of law. Reliance has also been placed on the judgment of the Supreme Court in Union of India and Others Vs. Mrs. Saroj Bala AIR 1996 SC 1000, Gheeshu Baig Vs. The State of Rajasthan and Others 1995 (1) WLC (Raj.) 633 and Gheeshu Baig Vs. State of Rajasthan and Others 1994 (2) RLR 734.
It was argued that date of birth of the plaintiff could not be changed merely on the basis of date of birth of his younger brother, because it is not known and wherefor there is no proof, as to who was responsible for entering 01.09.1946 as date of birth in school record of the plaintiff. Learned counsel argued that three affidavits now produced by the plaintiff in the trial court Exhibits-1, 2 and 3, said to be attested by Executing Magistrate, cannot be the sole basis for change of the date of birth. The certificate of birth given by the Gram Panchayat, Kumher, which is now Municipal Board, could not be accepted valid unless the person who made such entry in the record is not produced in evidence. The burden of proof according to Sections 101 to 104 of the Indian Evidence Act is always on the plaintiff to prove his correct date of birth and that why the entries made in his service record are incorrect. The plaintiff has failed to discharge that onus. There was no justification for the legal presumption of correctness with the aid of Section 90 of the Indian Evidence Act about three affidavits dated 20.07.1974. For such a presumption, the documents ought to be thirty years old and should come from proper custody. Neither the plaintiff got the date of birth changed in the matriculation certificate issued by the Board of Secondary Education nor did he immediately after joining service applied for change of date of birth.
Per contra, Shri Arun Sharma, learned counsel appearing for the plaintiff-respondent argued that the impugned judgment passed by the learned trial court as also the first appellate court are perfectly valid and justified. Regarding claim of the plaintiff about incorrect date of birth entered in his service record, learned counsel argued that on this issue there are concurrent findings of fact. He argued that process was initiated for change of date of birth of the plaintiff not at the time of retirement but much therebefore three affidavits were prepared by his father and were attested by the Executing Magistrate on 20.07.1972. The Gram Panchayat, Kumher also issued certificate dated 18.10.1992 certifying the fact that correct date of birth of the plaintiff is 01.10.1949. It was biologically impossible that three brothers would be born within a span of 1 year, one month and fifteen days. The plaintiff and his two brothers Padamchand and Virendra Jain passed their matriculation examination respectively in the years 1965, 1964 and 1963. Affidavits referred to above were received from proper custody and since they were duly attested on 20.07.1972 and were produced from proper custody, a legal presumption was rightly raised about their correctness under Section 90 of the Indian Evidence Act. In this connection, learned counsel referred to Rule 7(1) of the Rajasthan Service Rules and argued that the government has clarified that request for change of date of birth shall not be entertained if it is not received at-least three years prior to the date of retirement. The plaintiff submitted the representation six and half year before he was due to retire. His elder brother Virendra Kumar Jain died on 21.01.1998 and on the leaflet of the religious book, which was distributed at the time of his death, the date of birth of Virendra Jain was indicated as 29.03.1946. The defendant no.1 Kishan Lal also admitted having gone to the residence of the plaintiff and distributed that religious book. In this connection, learned counsel referred to the affidavit and cross-examination of Shiv Singh, Advocate, who was Notary Public and who prepared the affidavits and has identified and all the three persons, Moti Lal Jain, father of the petitioner, Bhagwan Das and Jaggi Ram. He further stated that he got these documents attested from S.D.O. It is argued that those affidavits were rightly read in evidence. The findings recorded by the courts below on this aspect are findings of fact. The plaintiff had to file appeal because the trial court despite its finding on issue no.1 that correct date of birth of the plaintiff was 01.10.1949, did not grant the ultimate relief and merely required the plaintiff to make a representation and directed the defendants to decide the same. The appellate court has rightly allowed the appeal by directing change of the date of birth and treating the plaintiff to have been reinstated in service with consequential benefits. No question of law, much-less substantial question, arises in the facts of the present case because whether or not the date of birth that was recorded in the secondary school certificate in the service record of the plaintiff, is a question of fact, which question has been decided in his favour by both the courts below. Interference in the scope of second appeal is not permissible howsoever erroneous or illegal the findings are on fact unless it is shown that such findings are perverse or the findings are such which no man of reasonable prudence could on available evidence have reached. The plaintiff served a legal notice under Section 80 of the CPC on the defendants twice and thereafter filed the suit. Rule 8-A does not and cannot be read as an embargo on the jurisdiction and power of the civil court for giving an appropriate declaration about the correct date of birth on the basis of evidence when it was shown that if the date of birth of all the three brothers is taken as correct, it would mean that all of them were born within a short period of one year one month and fifteen days. Birth of three brothers could not have taken place with a difference of six months, one month and seventeen days, respectively, which was biologically impossible. It is therefore prayed that the appeal be dismissed.
On the basis of arguments of the learned counsel for parties and evidence as well as other material on record, following substantial questions of law arise for consideration in present appeal:-
1. Whether Rules 8A, 160 and 161 bar the jurisdiction of civil court in making a declaration of correctness of date of birth entered in service record of plaintiff even if evidence adduced by parties otherwise make out a case for such declaration?
2. Whether presumption of correctness of more than thirty years old three affidavits (Exhibits 1, 2 and 3) of three persons prepared on non-judicial stamp of Rs.3/- each, and duly attested by executive magistrate and proved in evidence by attesting witness under Section 90 of the Evidence Act, was rightly raised by the courts below?
3. Whether certificate issued by the Gram Panchayat is admissible in evidence in terms of Section 85 of the Evidence Act?
In order to examine afore-quoted substantial questions of law, this has to be considered as to what is the extent of the jurisdiction of civil court to pass a decree of declaration about correctness of date of birth of a government servant requiring the authorities to rectify the date of birth, in his service record, different than what is recorded in the certificate issued by the Board of Secondary School Examination. The Supreme Court in Ishar Singh v. National Fertilizers AIR 1991 SC 1546, held that a civil court had jurisdiction to grant such relief, however where an employee stood superannuated even on the basis of the corrected date of birth by the time the civil suit came to be decided in his favour, the relief of back wages could not be granted by the civil court. The employee can avail of the remedy under Section 33-C(2) of the Industrial Disputes Act. In CIDCO Vs. Vasudha Gorakhnath Mandevlekar (2009) 7 SCC 283, it was held by the Supreme Court that entry in Municipal Births and Deaths Register and certificate issued by predecessor of municipality i.e. Gram Panchayat, would prevail over entry in the school register, particularly in the absence of any proof that the same was recorded at the instance of employee's guardian. It was further held that the certificate issued by the municipality could not be discarded on the ground that employee's birth took place prior to creation of municipality as the certificate was issued on the basis of records maintained by the predecessor body, namely, Gram Panchayat. Such entries made in the statutory register are admissible in terms of Section 85 of the Indian Evidence Act. In holding so, earlier judgment of the Supreme Court itself in Birad Mal Singhvi v. Anand Purohit 1988 (Supp) SCC 604 was relied and law enunciated therein reiterated. In Director of Technical Education and Another v. Smt. K. Sitadevi AIR 1991 SC 308, the Supreme Court held that what exactly is date of birth of a person is undoubtedly a question of fact. The legal position would be that a decree without the State government being a party is not binding on the employer State but in that case, superior court declined interference because Tribunal had apart from the decree of the civil court, looked into municipal certificate of date of birth and also the date of birth of other family members. In Madan Mohan Singh and Others Vs. Rajni Kant and Another (2010) 9 SCC 209, the Supreme Court held that for determining age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons and contemporaneous documents like the date of birth register of the Municipal Corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. As against this, the judgment of Supreme Court that has been heavily relied on by learned Counsel for the appellant in State of Punjab v. Mohinder Singh AIR 2005 SC 1868, wherein the Supreme Court held that horoscope is a very weak piece of material to prove age of a person. 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 Cl. (5), must be proved to have been made by a person having special means of knowledge as regards authenticity of date, time etc. mentioned therein. Since, in that case, the horoscope was believed in preference to the school record showing another date of birth, interference was made. However, in the present case what has been relied on by learned court below is the certificate of Gram Panchayat, containing date of birth of the plaintiff, three affidavits which were attested in 1972 and then Notary Public who attested the same also appeared as a witness, who deposed to say that those three affidavits were got attested by him. Despite the State Government not being a party to the suit, the Supreme Court refused to make interference with judgment of administrative tribunal holding that because such judgment was not solely based on decree of civil court but also the tribunal relied on municipal certificate and further also on dates of birth of other family members to come to that conclusion.
In present case too, the dates of birth of other brothers of plaintiff, have been made basis by learned trial court and also that court has examined certificate of the Gram Panchayat which later became Municipal Board and three affidavits, referred to above, and raised the presumption of their correctness in terms of Sections 85 and 90 of the Evidence Act, respectively. Considering the matter on the basis of law discussed supra, it cannot be said that in present case the date of birth is sought to be corrected only on the basis of horoscope which was the case in Mahendra Singh, supra. The case of plaintiff in present case is somewhat nearer to the case of Director of Technical Education and Another Vs. Smt. K. Sitadevi, supra, wherein the Supreme Court declined interference because it was found that the judgment of the tribunal was preceded by a decree of civil court and despite the fact that the State of Andhra Pradesh was not a party to the civil suit, the judgment of the tribunal was upheld because the tribunal, in directing change of date of birth of the concerned government employee, besides decree, also supported its order by municipal certificate with regard to date of birth of concerned employee and date of birth of his other family members. In present case, plaintiff had very much joined the State of Rajasthan and its functionaries as defendant to the suit and produced the certificate of local authority dated 18.07.1972 viz. Gram Panchayat, which later became municipal board, which was duly proved and also three affidavits (Exhibits 1, 2 and 3) which were attested by the executive magistrate/sub divisional officer, Bharatpur, on 20.07.1972. The advocate/notary public Shiv Singh, who prepared those affidavits, gave evidence to the effect that it was he who got the same attested from executive magistrate on being approached by Moti Lal Jain, father of plaintiff. Thus, the affidavits having been produced from genuine custody, the trial court as well as the first appellate court rightly raised presumption about correctness/genuineness thereof because these duly attested affidavits were prepared on non-judicial stamps of Rs.3/- each, and were older than thirty years. It cannot be said that plaintiff in present case for first time initiated the proceedings for getting date of birth changed at the fag end of his retirement. In any case, he served notice under Section 80 of the Code of Civil Procedure on the government, seven years before the date of his retirement with regard to process initiated by his father almost immediately after he joined the service. The certificate of Gram Panchayat dated 18.07.1972 is also an old document and proved in evidence. The court was justified in raising presumption about correctness of that certificate too, because under the provisions of Registration of Births, Deaths and Marriages Act, 1986, Gram Panchayat is authorized to maintain Birth and Death Register and trial court was justified in raising a presumption of its correctness in terms of Section 85 of the Evidence Act, which provides that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. In CIDCO Vs. Vasudha Gorakhnath Mandevlekar, supra, in similar facts and circumstances where a certificate issued by Gram Panchayat, the predecessor of the municipal board, the Supreme Court held that such certificate could not be discarded on the ground that employee's birth took place prior to establishment of municipality or Gram Panchayat.
The Supreme Court in Madan Mohan Singh and Others Vs. Rajni Kant and Another, supra, held that for determining the age of a person, the best evidence is of his/her parents, if it is supported by unimpeachable documents. In case the date of birth depicted in the school register/certificate stands belied by the unimpeachable evidence of reliable persons nd contemporaneous documents like the date of birth register of the municipal corporation, government hospital/nursing home, etc., the entry in the school register is to be discarded. Facts of that case were someone akin to the facts of the present case where the age of certain females of the concerned family was sought to be relied on the basis of school certificates/school registers etc. The Supreme Court found that there was a claim that female gave birth to certain children. The Supreme Court in respect of one of them, analyzing their age vis-a-vis age of their children, found it to be biologically impossible as in the case of one of them the age of child was even more than the age of mother. In those facts, interference was made by the Supreme Court despite there being concurrent finding by all three courts below, which are three statutory bodies under the statute and there was affirmation by the Allahabad High Court.
It is precisely on this analogy that learned trial court decreed the suit filed by plaintiff on analysis of evidence on record. Both the courts below have recorded that date of birth of plaintiff as shown in certificate as 01.10.1949 cannot be accepted as plaintiff's correct date of birth as indicated in the school certificate because date of birth of his eldest brother Virendra Kumar Jain was indicated in school record as 29.03.1946 and date of birth of his another brother Padamchand Jain, who still was elder to plaintiff but was younger than Virendra Kumar, was shown as 15.10.1946. While plaintiff passed secondary school examination in 1965, Virendra Kumar passed it in 1963 and Padam Chand did so in 1964. According to plaintiff, correct date of birth of his elder brother was 15.10.1947 and it was wrongly indicated in higher secondary school certificate as 15.10.1946. The court therefore concluded that it was biologically impossible that all three brothers would have been born within a period of six months and fifteen days and if 15.10.1947 is accepted to be the correct date of birth of middle brother Padam Chand Jain, within one year six months and fifteen days. This biological impossibility coupled with certificate of Gram Panchayat and duly attested affidavits of three persons, namely, father of plaintiff and his two neighbours, with regard to which presumptions were raised under Sections 85 and 90 of the Evidence Act, respectively, formed basis of the decree of declaration and grant of consequential relief.
Coming last to the question whether in view of Sections 8A, 160 and 161 of the RSR, an embargo is placed on jurisdiction and authority of civil court to issue an appropriate decree of declaration on arriving at the requisite satisfaction based on evidence on record as per law, it hardly needs mention that jurisdiction or authority of the civil court cannot be made to depend upon any such condition. Those rules which are meant for internal functioning of the government may be binding on its employees. Once however matter reaches the court in appropriate proceedings, it has to be dealt with in accordance with general law. In all the afore quoted decided cases of government employees, there were rules of the government concerned and notwithstanding such rules having provision also about the maintaining of service record and date of birth, the relief in appropriate cases was not denied and could not be denied if concerned employee was able to prove his case on evidence.
Some of the judgments that have been relied on by the learned counsel for appellant have arisen out of the writ petitions filed under Article 226 of the Constitution of India and mostly at the time of retirement of the concerned employees, wherein of course this court has relying on Rule 8A of the RSR declined to interference but mostly in those cases the guiding factor was oft repeated position of law by the Supreme Court and this court that change of date of birth involves disputed questions of fact and parties in matters like these ought to be required to avail the remedy of civil suit where evidence can be recorded, which mechanism is not possessed by this court while dealing with jurisdiction under Article 226 of the Constitution of India. The parties in such matters ought to be therefore limited to the civil court for seeking appropriate relief, which is what has been done by the plaintiff.
In view of above, I do not find any merit in these second appeals, and same are therefore dismissed with no order as to costs.
(Mohammad Rafiq) J.
//Jaiman//