Himachal Pradesh High Court
Kala Singh vs State Of H.P. And Ors on 2 June, 2020
Bench: Tarlok Singh Chauhan, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 682/2020 Reserved on:27.5.2020 Decided on : 2.6.2020 .
Kala Singh .....Petitioner
Versus
State of H.P. and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Anoop Chitkara, Judge. Whether approved for reporting?1 Yes For the Petitioner: Mr. B. C. Negi, Senior Advocate with Mr. r Nitin Thakur, Advocate, through video conferencing.
For the Respondents: Mr. Ashok Sharma, A.G. with Mr. Ranjan Sharma and Mr. Vinod Thakur, Addl. A.Gs., for respondents No. 1 to 4, through videoconferencing.
Ms. Anjali Soni Verma, Advocate, for
respondent No.5, through video
conferencing.
_____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge Shorn of unnecessary details, facts relevant for the disposal of this petition are that the petitioner passed his matriculation in the year 197980 and in the certificate so issued to him, his date of birth was mentioned as 12.5.1962.
The petitioner thereafter on 15.9.1987 came to be appointed in the respondentIrrigation and Public Health Department.
1Whether reporters of the local papers may be allowed to see the judgment? Yes.
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2 It is the specific case of the petitioner that in the year .
2017 while searching for the birth certificate of his son, found his own birth document issued by the Registrar (Birth and Death), which mentioned his date of birth as 15.4.1964 and not 12.5.1962 as was otherwise entered in his matriculation certificate.
3Accordingly, the petitioner approached respondent No.5Secretary, Himachal Pradesh Board of School Education, Dharamshala for correction of his date of birth, but his request was refused, constraining him to file a Civil Suit No. 74/1of 2017 for declaration with consequential relief of mandatory injunction before the learned Senior Civil Judge, Paonta Sahib, District Sirmaur. In the meantime, the petitioner also approached the respondentDepartment for correction of his date of birth, but his request was verbally turned down.
4 On 6.3.2019, the learned Senior Civil Judge decreed the suit and ordered correction of date of birth of the petitioner in the matriculation certificate as 15.4.1964 instead of 12.5.1962.
Pursuant to such decree, the respondentBoard also carried out correction in the matriculation certificate on 15.7.2019.
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5 The petitioner thereafter approached the respondent Department for correction of his date of birth, however his .
representation was rejected in view of provisions contained in FR 56 of Fundamental Rules constraining the petitioner to file the instant petition for grant of following substantive relief:
Issue a writ of mandamus directing the respondents No. 2 to 3 to correct the date of birth of the petitioner in the service records and entered the date of birth of the petitioner as 15.4.1964.
6 It is vehemently argued by Mr. B. C. Negi, learned Senior Advocate that once correction in the date of birth certificate had been carried out by the respondentBoard, that too pursuant to a decree to this effect, then the respondent department had no other option, but to have carried out the correction accordingly and thereafter permitted the petitioner to be continuing in service till he does not attain age of superannuation on the basis of corrected date of birth.
7 On the other hand, plea of the petitioner is vehemently opposed by Mr. Ashok Sharma, learned Advocate General and it is contended that since the respondent Department was not party to the civil suit, wherein ex parte decree had been passed, the same is not binding on the respondentDepartment. In addition thereto, it is submitted that ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...4...
in terms of FR56, an educated government employee can submit his case for correction of date of birth within five years. Lastly, it .
is contended that in terms of Himachal Pradesh Financial Rules, 1971 Vol1, the petitioner could have been allowed to make a request for correction of his date of birth within time limit of 2 years and no more, therefore, the petitioner cannot be allowed to make request for correction of date of birth at the fag end of his service.
8 to We have heard learned counsel for the parties and have also gone through the material placed on record.
9 At the outset, it needs to be observed that the respondentDepartment admittedly was not party to the civil suit, wherein otherwise, an ex parte decree was passed against the respondentBoard. The suit itself was instituted only on 20.5.2017. The sole issue framed in the said suit was: "Whether the plaintiff is entitled for declaration to the effect that his actual date of birth is 15.4.1964 instead of 12.5.1962 with consequential relief of mandatory injunction, as prayed for? OPP 10 It would be noticed that no issue on limitation was framed and additionally, the petitioner even did not choose to claim a decree of consequential relief for correction of date of birth in the service records of the respondentDepartment.
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11 The respondentDepartment had no occasion to contest the suit as it was not made party and, therefore, in such .
circumstances, ex parte decree cannot be held to be binding on the respondentDepartment.
12 The petitioner admittedly is a government servant, whose services are governed not only by FR56, but also by Himachal Pradesh Financial Rules, 1971 and could have, therefore, made a request for correction of his date of birth within two or five years of his being inducted in service in terms of the aforesaid Rules.
13 It has consistently been held by the Hon'ble Supreme Court that request for change of date of birth in service records at the fag end of service is not sustainable.
14 The law on the question of alteration of the entry in the service register relating to the date of birth an individual is now fairly well settled and reference can conveniently be made to a division bench's judgment of this Court in CWP No. 2168/2018, titled as Himachal Pradesh University vs. Hem Raj Sharma, dated 16.7.2019, in which one of us (Justice Anoop Chitkara) was a member, wherein it was observed as under: ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...6...
8. The law on the question of alteration of the entry in the service register relating to the date of birth of an individual, is now fairly well settled. It would be ideal to .
summarize the legal position as follows:
(i) In Government of Andhra Pradesh and another vs. M. Hayagreev Sarma {(1990) 2 SCC 682}, the Supreme Court made it clear that if the date of birth of an employee is recorded in his service register on the basis of the entry made in the school and college certificate, the same should be treated as correct. The Court pointed out that the entry so made would become final.
(ii) In Union of India vs. Harnam Singh {AIR 1993 SC 1367}, the Court pointed out that under Fundamental Rules 56, a request for correction of date of birth can be entertained only if it is made within five years of entry into service provided it is established that a genuine bonafide mistake had occurred while recording the date of birth at the time of entry into service.
(iii) In Executive Engineer, Bhadrak (R&B) Division, Orissa and others vs. Rangadhar Malik {1993 Supp (1) SCC 763}, the Supreme Court rejected a claim on the basis of Rule 65 of the Orissa General Financial Rules which stipulated that representations for correction of entry relating to date of birth cannot be admitted at the fag end of the career.
iv) In the Secretary & Commissioner Home Department and others vs. R. Kirubakaran {AIR 1993 SC 2647}, the Court made it clear that the object of a rule prescribing a period of limitation for making a claim regarding correction of the entry relating to the date of birth was to disable the ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...7...
Government servants from making claims on the eve of superannuation.
(v) In the State of Punjab and Ors. vs. S.C. Chadha .
{(2004) 3 SCC 394}, the aforesaid principles were reiterated.
(vi) In State of T. N. vs. T.V. Venugopalan {(1994) 6 SCC 302}, the Court frowned upon the practice adopted by some Government servants to approach the Tribunals towards the end of their career and get interim orders to enable them to continue in service. The Court reiterated that inordinate delay in making an application for alteration of date of birth was a ground for rejecting the application.
(vii) In Burn Standard Co Ltd. and others vs. Dinabandhu Majumdar and another {(1995) 4 SCC 172}, the Supreme Court cautioned the High Courts against entertaining the applications of Government servants for alteration of date of birth towards the fag end of their service. The Court reasoned that the entertainment of such claims would mar the chances of promotion of the juniors of the concerned individual and also prove to be an encouragement to other employees to come up with similar claims.
(viii) In Union of India vs. Ram Suia Sharma {(1996) 7 SCC 421}, the Supreme Court found fault with the Tribunal for entertaining a claim after 25 years of joining service.
(ix) In State of Orissa and others vs. Ramanath Patnaik {AIR 1997 SCC 2452}, the Supreme Court held that any amount of evidence produced at the fag end of service would be of no avail.
(x) In Hindustan Lever Ltd. Vs. S.M. Jadhav and another {AIR 2001 SC 1666}, the Supreme Court reiterated ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...8...
that towards the fag end of the career, a party cannot be allowed to raise a dispute regarding his date of birth.
(xi) Even as late as in 2006, the Supreme Court came .
down heavily upon public servants seeking alteration of date of birth towards the last lap of their career. This was in State of Gujarat and others vs. Vali Mohmed Dosabhai Sindhi {AIR 2006 SC 2735} 15 Even though, we need not multiply judgments on the subject in view of the decision of this Court in Hem Raj Sharma's case (supra), but we still feel that discussion on the subject would be incomplete in case reference is not made to a recent judgment of the Hon'ble Supreme Court in Bharat Coking Coal Ltd. vs. Shyam Kishore Singh, AIR 2020 SC 940, wherein it was categorically held that no court or the tribunal can come to the aid of those, who sleep over their rights and relevant paras thereof read thus:
9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder:
"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...9...
circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service.
.
Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...10...
service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of .
the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the timelimit within which an application is to be filed, the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book."
10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.25922593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder:
"Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.
The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...11...
service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no .
dispute was raised earlier."
16 The petitioner admittedly joined the respondent Department on 15.9.1987 and is to superannuate on 31.5.2020, yet it was only after a lapse of 30 years that he, for the first time, instituted a civil suit for declaration on 20.5.2017,wherein he cleverly did not array his employer i.e. respondentDepartment, as party, which otherwise was a necessary party to the lis.
17 To be fair to the learned Senior counsel for the petitioner, strong reliance has been placed by him on a judgment rendered by a learned Division Bench of this Court in CWP No. 1320/2016, titled as State of H.P.& anr. vs. P.C. Sharma, dated 9.12.2019, to contend that delay and laches in applying for change of date of birth can be condoned by this Court and was in fact done in the aforesaid case.
18 Having gone through the aforesaid judgment, we find the same to be not at all applicable to the facts and circumstances of the instant case. Therein, the petitioner was born in the year 1958 and this fact only came to his knowledge when his father was serving in the Army and died there. His date of birth in the service records was shown as 28.5.1957, but the ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP ...12...
records reflected the same to be 28.5.1958. He accordingly, approached this Court by filing a petition. The learned Single .
Judge disposed of the petition by directing the respondents therein to decide the request of the petitioner therein after making a fact finding inquiry. However, while disposing of the petition, the question of delay and latches in applying for change of date of birth was explicitly determined in favour of the which reads as under: r to petitioner therein, as has been noticed in para 4 of the judgment,
4. The question of delay and latches in applying for change of date of birth was explicitly determined in favour of the respondent, as would be evident from paras 3 and 4 of the judgment, which read as under: "3. Now according to the petitioner, he came to know about the alleged error about the year of his birth, on the death of his father and after getting certificate Ex.A2 from the Army Authorities, how could he have applied for correct of his date of birth, within one year of joining of service.
4. As a matter of fact, an employee can approach the appointing authority, for correction of date of birth within five years of his joining the service, per Note6, below Rule 56 of the Fundamental Rules. In this case, the period is to be counted not from the date of entry in Government service, but from the date of knowledge that the year of birth is not correctly recorded."
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19 The learned Single Judge interpreted FR56 in favour of the petitioner therein and attained finality, but the .
respondents therein rejected the case of the petitioner only on the ground of delay after making reference to FR56.
20 It was in this background that this Court held that once the judgment has attained finality, it was not open to the respondents therein to argue what has been specifically held against them in earlier litigation.
21 to In view of aforesaid discussion, We find no merit in this petition and the same is accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) Judge (Anoop Chitkara) 2.6.2020 Judge (pankaj) ::: Downloaded on - 03/06/2020 20:21:14 :::HCHP