Himachal Pradesh High Court
__________________________________________________________ vs H.P. State Electricity Board Ltd. And ... on 18 July, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
LPA No. 138 of 2022
Reserved on: 13.07.2023
.
Decided on: 18.07.2023
__________________________________________________________
Lobzang Dolma ...Appellant/Petitioner
Versus
H.P. State Electricity Board Ltd. and others.
...Respondents
__________________________________________________________
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge
The Hon'ble Mr. Justice Satyen Vaidya, Judge
1 Whether approved for reporting? No
______________________________________________________
For the appellant/petitioner: Mr. Ajay Sharma, Senior
Advocate, with Mr. Atharv
Sharma, Advocate.
For the respondents: Ms. Sunita Sharma, Senior
Advocate, with Mr. Surinder
Saklani, Advocate, for
respondent No.1.
Ms. Yogita Dutta, Advocate,
for respondent No.2.
Satyen Vaidya, Judge:
Appellant's claim for correction of date of birth in service record has met with disapproval of learned single judge, hence this intra court appeal.
2. For convenience and clarity, the parties hereafter shall be referred to by the same status as they held before 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 18/07/2023 20:39:24 :::CIS -2-learned single judge.
3. The initial engagement of petitioner with respondent No.1 was on daily wage basis. As per the .
petitioner, she was engaged in the year 1983, whereas respondent No.1 has taken a stand that petitioner was engaged w.e.f. 26.10.1989 as daily wage Beldar in the office of Executive Engineer, Bhaba Construction Division No. IV.
Indubitably, the services of petitioner were later regularized and in 1998 she was sent on deputation with respondent No.2. The petitioner was absorbed in the services of respondent No.2 in the year 2012.
4. Petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal (for short, "Tribunal") by way of O.A. No.1363 of 2017 with the grievance that in service records her date of birth was wrongly recorded as 06.11.1957, whereas, her correct date of birth was 06.11.1965. As per petitioner, she had come to know about the recording of wrong date of birth in service records only in the year 2016 and thereafter, had made representation to her employer for necessary correction of records. Having remained unsuccessful in getting her grievance redressed, petitioner approached the Tribunal. On abolition of the Tribunal, the ::: Downloaded on - 18/07/2023 20:39:24 :::CIS -3- matter came to be transferred to this Court as CWPOA No.1774 of 2020.
5. The petitioner had found resistance to her claim .
by respondents No. 1 to 3. It was submitted that right from inception petitioner was aware about the recording of her date of birth as 06.11.1957 in the service records. In fact, at the time of her initial engagement, petitioner herself had produced a certificate, annexure RA/3, issued by the Gram Panchayat, which clearly recorded her date of birth as 06.11.1957. On the basis of such document, the date of birth of petitioner was accordingly recorded in her service book, which she had duly acknowledged by way of her signatures.
Not only this, after absorption of the services of petitioner with respondent No.2, a number of documents were prepared and in all such documents, the date of birth of petitioner was again mentioned as 06.11.1957. Petitioner repeatedly acknowledged these documents by appending her signatures.
6. On the basis of 06.11.1957 being the recorded date of birth of petitioner, she was scheduled to retire from service on 30.11.2017, however, before such date, petitioner had already approached the Tribunal by way of O.A. No.1363 of 2017 and had also been granted an interim order whereby ::: Downloaded on - 18/07/2023 20:39:24 :::CIS -4- she was allowed to continue in service beyond 30.11.2017.
Consequently, on the strength of orders of the Tribunal, petitioner continued in service even after 30.11.2017 till the .
dismissal of CWPOA No. 1774 of 2020 by learned Single Judge.
7. Learned Single Judge after placing reliance upon the documents available on record has concluded that the petitioner throughout was aware about recording of her date of birth as 6.11.1957 and at much later stage i.e. in the year 2016-2017 she had procured another certificate from the Gram Panchayat showing her date of birth as 06.11.1965.
The latter certificate has been held to be incorrect and false document procured by the petitioner. Learned Single Judge has further found the claim of the petitioner to be not bonafide. Accordingly, the petition filed by the petitioner has been dismissed with direction to recover the wages paid to the petitioner for the period she had served respondent No.2 after 30.11.2017 on the strength of interim order passed by the Tribunal.
8. It has been contended on behalf of petitioner that the explanation submitted by her in respect of existence of document Annexure RA/3 (Annexure R-2/2) was not ::: Downloaded on - 18/07/2023 20:39:24 :::CIS -5- considered in right perspective and such document was thus wrongly relied against her. It has also been contended that the copies of Parivar Register from Gram Panchayat, Katgaon .
was available on record as Annexure A-7. As per this document, the date of birth of the petitioner was recorded as 06.11.1965. Reliance has also been placed on the certificate issued by the concerned Gram Panchayat on the basis of said record. Further, it has been alleged that the petitioner is daughter of Shri Ganga Dass. The mother of petitioner named Smt. Dharmi Devi had her second marriage with Shri Ganga Dass. Smt. Dharmi Devi had a daughter named Laxmi Devi from her first marriage. The date of birth of Smt. Dharmi Devi was 26.03.1940 and she had given birth to Smt. Laxmi Devi when she was 16 or 17 years old. Thereafter, she (Smt. Dharmi Devi) had solemnised marriage with Ganga Dass and the petitioner was born on 06.11.1965. Another objection raised on behalf of the petitioner is that the request of the petitioner for ossification test was not acceded to, which has prejudiced her case. As per petitioner, the learned Single Judge had also not taken into consideration the factum of illiteracy of the appellant while placing reliance on the documents which were signed by her.
::: Downloaded on - 18/07/2023 20:39:24 :::CIS -6-9. We have heard learned counsel for the parties and have also gone through the records of the case carefully.
10. In the first instance, we do not find any reason to .
differ with the findings recorded by learned Single Judge to the effect that the petitioner was having the knowledge about recording of her date of birth in the service record as 06.11.1957. Learned Single Judge has rightly concluded that the petitioner cannot be assumed to have signed all the documents without knowing its contents. The above hypothesis gets strength from another fact that the petitioner has placed reliance on a document Annexure A-1, which is a copy of representation submitted by petitioner to respondent No.3 on 30.4.2016. In 3rd paragraph of the said document, petitioner had clearly admitted that at the time of her engagement in service, she had produced her birth certificate from the local Panchayat and had submitted the same to the employer. The document referred to in aforesaid para of the representation is the certificate relied upon by respondent No.1 as RA/3. The certificate was issued by the Secretary, Gram Panchayat, Yangpa (Bhaba) on 24.10.1989 and was scribed in Hindi. The date of birth of the petitioner was clearly recorded as 06.11.1957. It is not the case of petitioner that ::: Downloaded on - 18/07/2023 20:39:24 :::CIS -7- she was not in a position even to decipher the date mentioned in figures in the said document. Thus, there is hardly any scope for entertaining a doubt regarding the factum of .
petitioner having knowledge about recording of her date of birth in service record as 06.11.1957.
11. We next propose to examine as to whether there was any material on record which sufficiently proved that the actual date of birth of petitioner was 06.11.1965. We have gone through the original "Parivar Register" and "Register of Births and Deaths". In the Parivar Register though the date of birth of petitioner has been recorded as 06.11.1965, but the figures so recorded clearly have been over-written as is visible even to naked-eye. There is no explanation for such overwriting. As regards the register of Births and Deaths, the entry recorded therein is also doubtful for the reasons firstly, such entry is preceded by entry pertaining to month of May, 1965 and the succeeding entry is of 6th October, 1965, hence, the reason for incorporation of entry dated 6.11.1965 between May 1965 and October 1965 is unexplainable, secondly, the entry could have been easily incorporated as it is found at the end of the page.
12. The petitioner even otherwise could not legally ::: Downloaded on - 18/07/2023 20:39:24 :::CIS -8- succeed in her petition on account of the fact that despite having knowledge that in service records her date of birth was recorded as 6.11.1957, she kept silent for 27 years before .
making representation with respect to correction thereof. The issue with respect to correction of date of birth in service records at the fag-end of service career is no more res-integra.
Reference can be made to the following exposition thereof as taken note of by a Division Bench of this Court in which one of us (Tarlok Singh Chauhan, J.) was a member, in CWP No. 2202 of 2021, titled Kamal Krishan Suman vs. State of H.P. and another, reported in 2022 SCC Online HP, 2690:
"10. 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.
11. 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, wherein it was observed as under:-
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:::: Downloaded on - 18/07/2023 20:39:24 :::CIS -9-
(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 bona-fide 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 ::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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the 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 ::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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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 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}.
12. 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:::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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"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 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 ::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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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 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 time-limit 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 ::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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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 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."
13. Lastly, learned Senior Counsel representing the ::: Downloaded on - 18/07/2023 20:39:24 :::CIS
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petitioner had raised the contention in alternative that the direction to effect recoveries from petitioner is too harsh keeping in view the fact that petitioner is a poor lady and had .
held only a class-IV post throughout. In our considered view, the contention so raised needs to be upheld for the reason convassed on behalf of the petitioner and also that the petitioner had been paid only for the period she had worked for respondents.
14. In light of above discussion, the appeal is partly allowed. The impugned judgment is set aside to the extent it contains direction to recover amount of wages paid to the petitioner after 30.11.2017, remaining judgment is upheld and the instant appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any.
(Tarlok Singh Chauhan) Judge (Satyen Vaidya) Judge 18th July, 2023.
(GR) ::: Downloaded on - 18/07/2023 20:39:24 :::CIS