Himachal Pradesh High Court
Working As vs State Of H.P. & Others on 19 April, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 19th DAY OF APRIL, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION (ORIGINAL APPLICATION) NO.3262 OF 2020
Between:-
HARI SINGH RATHATA,
SON OF LATE SHRI JANIA RAM,
RESIDENT OF VILLAGE
HIMGRAM, P.O. TIKKARI,
TEHSIL CHOPAL, DISTRICT
SHIMLA, H.P. PRESENTLY
WORKING AS
SUPERINTENDENT GRADE-II IN
THE OFFICE OF ENGINEER-IN-
CHIEF, HPPWD, NIRMAN
BHAWAN, NIGAM VIHAR,
SHIMLA-171002, H.P. ....PETITIONER
(BY MS. RUCHIKA KHACHI,
ADVOCATE ON BEHALF OF
MR. C.D. NEGI, ADVOCATE)
AND
1. STATE OF H.P. THROUGH ITS
PRINCIPAL SECRETARY (PW)
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-
171002.
2. ENGINEER-IN-CHIEF, HPPWD,
NIRMAN BHAWAN, NIGAM
VIHAR, SHIMLA-171002, H.P.
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2
3. HIMACHAL PRADESH BOARD
OF SCHOOL EDUCATION,
DHARAMSHALA, DISTRICT
KANGRA, H.P., THROUGH ITS
SECRETARY.
.
4. GRAM PANCHAYAT TIKKARI,
DEVELOPMENT BLOCK
CHOPAL, TEHSIL CHOPAL,
DISTRICT SHIMLA, H.P.,
THROUGH ITS SECRETARY. ....RESPONDENTS
(MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL, FOR R-1
& R-2,
MR. DIWAKAR DEV SHARMA,
ADVOCATE, FOR R-3)
____________________________________________________
This Civil Writ Petition coming on for admission
this day, Hon'ble Ms. Justice Sabina, passed the following:
ORDER
Petitioner had filed Original Application before the erstwhile H.P. Administrative Tribunal (hereinafter referred to as the "Tribunal" in short), seeking the following relief(s):-
"(i). That the respondents may very kindly be directed to carry the correction in the Matriculation Certificate as well as service record of the applicant qua his date of birth as 31.12.1962 instead of 01.01.1960 in terms of the Annexure A-
1 to A-3 issued by the Respondent No.4 as well as ratio laid down by the Hon'ble High Court of Himachal ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 3 Pradesh in C.W.P. No.569/2012 titled as Mast Ram v/s State of H.P. & others (Annexure A-6).
(ii) That the respondents may kindly be .
directed to allow the applicant to continue in the services of the respondents till he attains the age of superannuation i.e. upto 31.12.2020."
2. After abolition of the Tribunal, the Original Application was transferred to this Court.
3. Case of the petitioner, in brief, is that his date of birth was 31.12.1962, whereas, it has been wrongly recorded as 01.01.1960 in his service record. Petitioner was appointed as a Clerk in the office of Irrigation and Public Health Department, Division Dehra-Gopipur, District Kangra (H.P.), w.e.f. 21.06.1982. Thereafter, services of the petitioner were transferred to Himachal Pradesh Public Works Department after two months. At the time of filing of the Original Application, petitioner was posted as Superintendent Grade-II in the office of Engineer-in-Chief, Himachal Pradesh Public Works Department, Nirman Bhawan, Nigam Vihar, Shimla. As per the Parivar Register as well as Birth Certificate and Panchayat Record, the date of birth of the petitioner was recorded as 31.12.1962, ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 4 whereas, date of birth of his elder brother was 15.06.1960.
Petitioner had approached respondent No.2 for correction of his date of birth on the basis of the entries in the Parivar .
Register, Birth Certificate and Panchayat Record, but nothing had been done by the respondents in this regard.
Hence, the petitioner had filed the Original Application.
4. Respondents, in their reply, have averred that the case of the petitioner was barred by limitation. Petitioner has raised the issue of correction of his date of birth at the fag end of his service career. Petitioner was due to retire on 31.12.2017 and had filed the Original Application in December, 2017. As per Matriculation Certificate of the petitioner, his date of birth was mentioned as 01.01.1960.
From the date of his joining the service in June 1982 till the filing of the Original Application on 14.12.2017, petitioner had never raised the issue of correction of his date of birth.
5. Learned counsel for the petitioner has submitted that on coming to know about the mistake in recording of the date of birth of the petitioner, he immediately sought correction of his date of birth in the service record. Hence, the petition filed by the petitioner is liable to be allowed.
::: Downloaded on - 21/04/2022 20:05:02 :::CIS 56. Learned Additional Advocate General, on the other hand, has submitted that as per Himachal Pradesh Financial Rules, 2009, petitioner could have sought correction of his .
date of birth in service record within two years of entry in service. Since the petitioner has sought correction of date of birth in his service record at fag end of his service career, the writ petition filed by the petitioner is liable to be dismissed. Learned Additional Advocate General has placed reliance on the decision rendered by the Hon'ble Supreme Court, dated 09.02.1993, in case titled Union of India versus Harnam Singh, reported in (1993) 2 SCC 162, wherein it was held as under:-
"A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispersed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 6 correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of the irrefutable proof relating to his date of birth as different from the one earlier .
recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of latches or stale claims, is generally applied to by the courts and tribunals. It is nonetheless competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, 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. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 7 held by this Court in State of Assam & Anr. v. Daksha Prasad Deka & Ors., [1971] 2 SCR 687 a public servant may dispute the date of birth as entered in the service record and apply for its .
correction but till the record is corrected he can not claim to continue in service on the basis of the date of birth claimed by him."
7. The learned Additional Advocate General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. versus Laxman in SLP (C) Nos.2592-2593/2018, 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 under:-
"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 ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 8 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 dispute was raised earlier."
8. In the present case, admittedly, the date of birth of the petitioner in his service record has been recorded as 01.01.1960 in terms of his Matriculation Certification.
Petitioner had admittedly joined the service in the year 1982.
Petitioner had filed the Original Application in the Tribunal on 14.12.2017, seeking correction in his date of birth in his service record as 31.12.1962 instead of 01.01.1960. Thus, the Original Application has been filed by the petitioner at fag end of his service career.
9. Clause 7.1 (d), Chapter VII of the Himachal Pradesh Financial Rules, 1971, Volume-I, reads as under:-
"7.1(d). (1) in regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 9 Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any time against .
the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of service of a gazette Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.
(2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an inquiry shall be made to ascertain his correct age and reference shall be made to all available sources of information such as certified copies of entries in the Municipal birth register.
University or School age certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 10 as a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate in available, the date of birth recorded in the .
certificate will be deemed to be the correct age.
(3) The result of every such inquiry should in the case of Gazetted/Non-Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should r be reported to the Accountant General."
10. Thus, as per the above provision, an employee can seek correction of date of birth in his service record within two years from the date of entry in Government service. However, in the present case, the petitioner had sought correction of his date of birth in the service record by filing the Original Application on 14.12.2017, whereas, he was due to retire on 31.12.2017.
11. The practice of seeking correction of date of birth in service record at the fag end of service has been time and again deprecated by the Courts. It has been held by the Hon'ble Supreme Court in Bharat Coking Coal Ltd. Vs. Shyam Kishore Singh, AIR 2020 SC 940, as under:-
::: Downloaded on - 21/04/2022 20:05:02 :::CIS 11"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 circumspect, r 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 ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 12 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 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."
::: Downloaded on - 21/04/2022 20:05:02 :::CIS 1312. It has also been held by the Hon'ble Supreme Court in Civil Appeal No.5720 of 2021, titled Karnataka .
Rural Infrastructure Development Limited & Anr. versus T.P. Nataraja & Ors. alongwith one connected matter, decided on 21.09.2021, as under:-
"10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:
(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;
(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation."
13. The judgment (Annexure A-6), passed by this Court on 08.08.2012 in CWP No.569 of 2012, titled Mast Ram versus State of HP and others, relied upon by the petitioner fails to advance the case of the petitioner, as it is based on different facts. Rather, in view of the decisions of the Hon'ble Supreme Court, reproduced hereinabove, the ::: Downloaded on - 21/04/2022 20:05:02 :::CIS 14 petition filed by the petitioner is liable to be rejected on the ground of delay and laches and more particularly when the petitioner has sought correction of his date of birth in his .
service record in the month he was due to retire.
14. Thus, the writ petition filed by the petitioner is liable to be dismissed on the ground of delay and laches, as the petitioner had sought correction of his date of birth in service record at the fag end of his service career. Consequently, the writ petition is dismissed.
15. Pending miscellaneous application(s), if any, shall also stand disposed of.
( Sabina )
Judge
( Satyen Vaidya )
April 19, 2022 Judge
(Yashwant)
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