Punjab-Haryana High Court
State Of Punjab And Anr. vs Megh Raj Garg on 6 September, 2002
Equivalent citations: (2003)134PLR84
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by the State of Punjab as well as by the High Court against the judgment and decree dated 23.3.1996 passed by the Additional District Judge, Chandigarh, vide which the appeal of the High Court was dismissed and the judgment and decree dated 27.4.1995 passed by Senior Sub Judge, Chandigarh were affirmed.
2. Plaintiff Megh Raj Garg, respondent herein, who was a member of Punjab Civil Service (Judicial), filed the present suit for declaration to the effect that in his service record his date of birth is recorded as 27.3.1938 but when the examination form was sent for Matriculation examination, the date of birth was wrongly recorded as 27.3.1936, whereas actually it is 27.3.1938. In the service record, his date of birth was recorded on the basis of Matriculation certificate, in which it was wrongly carried as 27.3.1936, though his earlier record in the school carried his correct date of birth. In the year 1983, he made application to the appellants for correction/alteration of his date of birth, but the same was returned to him with the observation that he should get his date of birth corrected in his Matriculation certificate from the competent authority. Thereafter, on the application of the plaintiff-respondent for correction of his date of birth, the Punjab University, on the recommendation of the Date of Birth Committee, vide its decision dated 15.2.1985, corrected his date of birth in the Matriculation certificate. Thereafter, the plaintiff-respondent made a representation to the State of Punjab (appellant No.1) for correcting his date of birth in the service record, which was rejected on 14.1.1993 and conveyed to him on 28.1.1993. He sought declaration that the order dated 14.1.1993 was illegal and liable to be set aside. A direction for mandatory injunction was also sought against the defendants appellants to make the correction in his date of birth.
3. The suit was decreed by both the Courts below. It was held mat actually the date of birth of the plaintiff-respondent was 27.3.1938 and not 27.3.1936. In the year 1951, when the plaintiff-respondent was studying in 8th standard, he had got recorded his date of birth as 27.3.1938. In the admission register Ex.PW3/l also, his date of birth was recorded as 27.3.1938 but when the examination form was sent for Matriculation examination, the date of birth was wrongly recorded as 27.3.1936. It was also held that the matter was duly enquired into by the Date of Birth Committee appointed by the Syndicate of Panjab University, which also found that the correct date of birth of the plaintiff-respondent is 27.3.1938. The said committee consisted of Mr. Justice Gurdev Singh, Mr. Justice B.R.Tuli, Professor S.Khera and the Registrar of the University. The recommendation of the said committee was accepted by the Panjab University and a duplicate certificate with correct date of birth (EX.PW2/A) was duly issued. After taking into consideration the new Matriculation certificate issued by the Panjab University and the other evidence available on the record, the Courts below decreed the suit of the plaintiff-respondent and directed the defendants-appellants to correct his date of birth in his service record as 27.3.1938 instead of 27.3.1936.
4. Before the Courts below, the defendants-appellants contested the suit mainly on the ground of limitation and it was contended that the date of birth cannot be allowed to be corrected at the belated stage and such a suit can be filed by an employee only within two years from the date of making entry into Government service. On the issue also, both the Courts below have held that the suit filed by the plaintiff-respondent was not barred by limitation,
5. Learned counsel for the appellants have made two submissions in this appeal, firstly that a Government employee could not get his date of birth corrected long after his entry into the Government service and secondly that the Punjab Civil Service Rules, which are applicable to the plaintiff-respondent, bar the present suit which could only be filed by him within two years after entry into the service. In this regard, he contended that the plaintiff-respondent joined the Punjab Civil Service (Judicial) in the month of March, 1973 and filed the present suit on 19.8,1993 i.e. after more than 20 years of entry into service. Therefore, the suit filed by him is hopelessly time barred and the same is not maintainable. In support of his contention, he referred to Para 1 of Annexure 'A' to Chapter II of the Punjab Civil Service Rules, Volume I, Part I, which reads as under:-
"In regard to the date of birth declaration of age made at the time of or for the purpose of entry into Government service shall, as against the Government employee in question, be deemed to be conclusive unless, he applies for correction of his age recorded within two years from the date of his entry into Government service. The administrative Department in consultation with the Department of Personnel & Administrative Reforms, however, reserves the right to made a correction in the recorded age of a Government employee at any time against the interests of the Government employee when it is satisfied that the age recorded in his service book or in the history of service of a Gazetted Government employee is incorrect and has been incorrectly recorded with the object that the Government employee may derive some unfair advantage therefrom."
He also relied upon the decisions of the Hon'ble Supreme Court in Union of India and Ors. v. Mrs. Saroj Bala, 1 1996(2) S.L.R. 898 and in Union of India v. C. Rama Swamy and Ors., 1997(2) S.L.R. 584.
6. On the other hand, learned counsel for the respondent submitted that a pure finding of fact has been recorded by the Courts below while holding that the actual date of birth of the plaintiff-respondent is 27.3.1938. There is no question of law involved in the present appeal and this Court has no jurisdiction to interfere with the findings of fact under Section 100 of the Code of Civil Procedure. In support of his contention, he relied upon the decision of the Hon'ble Supreme Court in Kulwant Kaur v. Gurdial Singh Mann, (2001-2)128 P.L.R. 492 (S.C.). He has further submitted that in the year 1994, the State of Punjab amended the Punjab Civil Service Rules and amendment was made to the effect that an employee of the State Government can apply for change of date of birth within the period of two years from the coming into force of the amended Rules. Therefore, in view of the said amendment, suit of the plaintiff-respondent was not barred by limitation. He further applied for the change of date of birth but the appellants returned his representation by saying that he should take necessary steps for getting his date of birth corrected in the Matriculation certificate. Thereupon, he applied to the Panjab University for correction of his date of birth in the Matriculation certificate which was corrected on 12.2.1985. Thereafter he filed representation to the appellants for changing his date of birth in his service record on the basis of correction made by the Panjab University in his Matriculation certificate. His representation was rejected on 28.1.1993 and within a period of seven months, he filed the present suit on 19.8.1993. On the basis of these facts, learned counsel for the respondent contended that there was no delay in filing the suit and the finding recorded by the Courts below in this regard are perfectly legal and valid and the appeal filed by the defendants-appellants is liable to be dismissed.
7. I have considered the submissions made by both the parties. In my view, there is no force in both the contentions of the appellants. The facts of the present case are slightly different than the facts of the aforesaid two decisions cited by the counsel for the appellants. In the present case, a finding of fact has been recorded, on the basis of evidence available on the record, that the correct date of birth of the plaintiff-respondent is 27.3.1938. It has also been specifically held that the correct date of birth was recorded in the school certificate when the plaintiff-respondent was studying in 8th standard, but it was wrongly recorded in the Matriculation certificate. On the application of the plaintiff-respondent, his date of birth was corrected in the Matriculation certificate by the Panjab University on the basis of the recommendation of the Date of Birth Committee consisting of two retired Hon'ble Judges of this Court besides a Professor and Registrar of the University. After correction in the Matriculation certificate by the Panjab University, the plaintiff-respondent filed representation on 27.2.1985 to the appellants for correction of his date of birth in the service record. The said representation was rejected on 14.1.1993 and conveyed on 28.1.1993. Soon thereafter, the present suit was filed on 19.8.1993. Thus, it is clear from the facts of this case that the wrong date of birth was recorded in the Matriculation certificate of the plaintiff-respondent due to some negligence or clerical error at the time of sending his form for the Matriculation examination. The said mistake was corrected by the University on the basis of the recommendation of the Date of Birth Committee. Each case has to be examined on its own facts. There is no hard and fast rule that in every case delay is fatal. In Union of India v, Mrs. Saroj Bala (supra), an application for correction of date of birth was filed by the employee after 18 years of entry into service and that too on the basis of the averment that she discovered in a talk with her sister that her date of birth is incorrect. Then enquiries were made and she obtained birth certificate, in which the correct date of birth was mentioned. The horoscope was also sought to be set up to corroborate the contention. In that case, application filed by the employee for correction of her date of birth was rejected by the University. In those specific facts, it was held by the Hon'ble Supreme Court that the date of birth cannot be ordered to be corrected after long period of entry into the service, as it is unthinkable that having been born in an educated family and having remained in service for 18 years, she discovered that her date of birth would be wrong. This decision is wholly distinguishable in the facts and circumstances of the present case. Here, it has been found as a matter of fact by both the Courts below that the actual date of birth of the plaintiff-respondent is 27.3.1938 and it was rightly recorded in the school record upto 8th standard, but subsequently, it was wrongly recorded as 27.3.1936 in the Matriculation certificate. The said mistake was corrected by the Panjab University on the recommendation of the Date of Birth Committee.
8. The second decision, cited by learned counsel for the appellants i.e. Union of India v. C. Rama Swamy and Ors. (supra) is also not applicable to the facts and circumstances of the present case. In that case, after 14 years of service, the employee filed an application for alteration of his date of birth from 17.6.1931 to 15.6.1941 on the basis of his horoscope. It was held in that case that where maturity is a relevant factor to assess suitability an 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, it was found difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be relevant consideration to assess his suitability. In the present case, the plaintiff-respondent did not take any benefit while entering into service by showing himself two years elder. The first appellate court has discussed this aspect of the matter in paras 50 and 51 of the judgment, which are re-produced below:-
"It is important to note here that the respondent-plaintiff did not get any advantage of unconscious recording of his wrong date of birth presumably while filling of examinations form of Matriculation examination by the School authorities. If his date of birth as represented in EX.PW2/A is taken into account, he is neither underage nor overage at the time of entering into Government service. There was no minimum age prescribed at the time, when he initially joined the service. There is no denial by the appellant as also by the defendant Government of Punjab that for the first time lower age limit for entry into Government service was prescribed vide instructions dated 5.12.1962.
Thus the plaintiff is not proved to have taken any advantage of his wrong recording of date of birth. Reference may be made to Union of India v. Harnam Singh, A.I.R. 1993 S.C. 1367, where it was held that 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. It is also held in this authority that his date of birth may be corrected, if it is established that a genuine bonafide mistake had occurred in recording his date of birth."
Thus, this judgment cited by learned counsel for the appellants is also of no help to the appellants.
9. The second contention raised by learned counsel for the appellants that the Punjab Civil Service Rules, which are applicable to the plaintiff-respondent, bar the present suit, as the same was not filed within two years after entry into service, is also not acceptable. Vide notification dated 21.6.1994, an amendment was made in the Punjab Civil Service Rules vide Punjab Civil Service (First Amendment) Rules, Volume-I Part-I, 1994, according to which the employee already in service of the Government of Punjab on the date of coming into force of the amended rules may apply for the change of date of birth within a period of two years from coming into force of these Rules on the basis of documentary evidence, such as Matriculation certificate or Municipal Birth Certificate etc. By this amendment, one change was given to those employees who did not avail the opportunity to get their date of birth corrected within the stipulated period of two years from entry into the Government service and a fresh period of two years was provided to them which was to start from the date of amendment. The contention of counsel for the appellants, that this amendment was subsequently withdrawn by the State Government vide letter dated 13.12.1995 of the Deputy Secretary (Personnel) of the Department of Personnel and Administrative Reforms of Government of Punjab, was rightly not accepted by the Courts below in view of Division Bench decision of this Court in Civil Writ Petition No.1476 of 1996, titled as Daljit Singh v. State of Punjab and Ors., wherein it was held that simply on the basis of the letter dated 13.12.1995, issued by the Deputy secretary, the operation of the rules cannot come to a stand still. Thus, in view of the said amendment, the suit filed by the plaintiff-respondent cannot be said to be barred by limitation and the contention of the appellants that the date of birth of an employee can only be corrected within two years of entry into service cannot be accepted. The first appellate court has also examined this aspect of the matter and discussed the same in detail in paras 37 to 42 of its judgment, I find no infirmity or illegality in the findings recorded by the Courts below in this regard. Even otherwise, it has been held by a Division Bench of this Court in Jiwan Dass v. State of Haryana and Anr., 1989(2) I.L.R. Punjab 110, that if a Government employee did not get his date of birth altered under the service rules within a stipulated period, then his remedy to get the same altered under the civil law will not be barred because the administrative law do not bar jurisdiction of Civil Court and the decision of the administrative authorities allowing or rejecting the requests for alternation in date of birth is open to judicial scrutiny when challenged before a court of competent jurisdiction.
10. No other point was raised by counsel for the appellants.
11. In view of the above discussion, I find no merit in the present appeal and the same is hereby dismissed with no order as to costs.