Himachal Pradesh High Court
Harbans Lal vs Punjab National Bank & Others on 22 November, 2017
Author: Sandeep Sharma
Bench: Sanjay Karol, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
CWP No.1842 of 2017
Judgment reserved on: 02.11.2017
.
Date of decision: 22.11.2017
Harbans Lal ....Petitioner
Versus
Punjab National Bank & Others ....Respondents
Coram
The Hon'ble Mr.Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Petitioner: Mr.Gaurav Gautam, Advocate.
For the Respondents: Mr.G.S. Rathore, Advocate.
Per Sandeep Sharma,J.
Being aggrieved and dis-satisfied with the rejection of his representation i.e. Annexure P-5, whereby he had requested respondent No.4 i.e. Chief Manager, Punjab National Bank, Damtal, District Kangra, H.P. to correct his date of birth in his service record, the petitioner has approached this Court by way of instant petition, seeking therein direction to the respondents to correct his date of birth in his office/service profile as well as records as 12.09.1958 instead of 12.09.1957. Petitioner has further prayed for direction to the respondents to superannuate him as per his corrected date of birth i.e. 12.09.1958 and thereafter to pay him consequential benefits accordingly.
1Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 22. For having bird's eye view, necessary as well as undisputed facts sans unnecessary details are that the petitioner was appointed as peon-cum-chowkidar on 06.09.1979 in the .
respondent-Bank and at the time of joining, he mentioned his date of birth as 12.09.1957, as is evident from application Annexure R-
1. Petitioner while joining service also submitted his educational qualification certificate, wherein his date of birth is also recorded as 12.09.1957, as is evident from marks sheet issued by Himachal Pradesh State Education Board (for short 'HPSEB') on 07.07.1981 i.e. Annexure R-2. Petitioner has also placed on record certificate issued by 'HPSEB', which also reveals that his date of birth is recorded as 12.09.1957.
3. As per petitioner, he moved an application on prescribed format i.e. Form G-625, as prescribed by 'HPSEB', praying therein to carry out necessary correction in his matriculation certificate by correcting his date of birth, which, as per him, is inadvertently recorded as 12.09.1957 instead of 12.09.1958. In support of aforesaid plea, though petitioner has placed on record application submitted by him to the 'HPSEB' (Annexure P-2), but there is no mention of date, from where it can be inferred that on which date such prayer was made by petitioner for correction of his date of birth. Petitioner has also not chosen to implead 'HPSEB' as a party-respondent, who could substantiate factum with regard to correction allegedly made by Board of School Education, pursuant to the request of petitioner vide Annexure P-2. Petitioner has further averred in the petition that ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 3 'HPSEB', while allowing aforesaid correction, took into consideration documents available in their record, such as, Form G-13, Entries in the Admission and Withdrawal Register of the .
petitioner's school (Annexure P-3). Petitioner has also placed on record certificate obtained by him from Principal, Government Senior Secondary School, Ghoran, Tehsil Nurpur, District Kangra, certifying the date of birth of the petitioner to be 12.9.1958 (Annexure P-4).
4. Pursuant to the aforesaid correction made vide Form G-625, as prescribed by 'HPSEB', authenticity of which is also doubtful in the absence of corroboration, if any, on the part of 'HPSEB', who is not made as a party, petitioner filed representation dated 14.06.2017 (Annexure P-4) addressed to respondent No.4, praying therein for correction of his date of birth as recorded in his service/bank record. In the aforesaid representation, petitioner represented to the bank-authorities that since duplicate school leaving certificate dated 27.5.2017 has been issued in his favour, reflecting therein his date of birth as 12.09.1958, necessary correction may be carried out so that he is superannuated on the basis of his correct date of birth i.e. 12.09.1958.
5. At this stage, it may be noticed that, save and except, representation dated 14.6.2017, no communication is/was ever made by the petitioner with the respondent-bank, requesting therein to effect change in his service record as far as his date of birth is concerned. Representation dated 14.6.2017 admittedly ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 4 came to be filed by the petitioner after a lapse of 37 years from the date of his initial engagement i.e. 06.09.1979, just at the fag end of his carrier that too just 3½ months prior to his date of .
superannuation i.e. 30.09.2017, which prayer of him, is/was not acceded to by the bank authorities, as is evident from communication dated 18.07.2017 i.e. Annexure P-6. Even present petition came to be filed before this Court after one month of passing of order dated 18.07.2017 i.e. Annexure P-6.
6. After having perused reply filed by the respondents, there appears to be no dispute with regard to initial appointment of the petitioner in the respondent-bank as well as his request with regard to correction of date of birth. But definitely, after having perused documents adduced on record by respondent-
bank, it clearly emerge that petitioner, at the time of his initial appointment, had furnished copy of matriculation certificate, wherein admittedly his date of birth is recorded as 12.09.1957.
Similarly, perusal of application submitted by him for selection as Customer Care Officer in JMG Scale-I (Annexure R-3) reveals that petitioner disclosed his date of birth as 12.9.1957. Perusal of Confidential Reports Annexures R-5, R-6, R-7 and R-8, placed on record by respondents, which pertain to the years 2009 to 2012, clearly suggest that petitioner, while submitting self information for the purpose of Confidential Reports, has been disclosing his date of birth as 12.9.1957. Respondent-bank has also placed on record HRD Division Circular No.125 dated 4.1.2003, issued by Human Resource Development Division, Head Office, New Delhi, to ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 5 demonstrate that in case of an employee, who has passed matriculation examination, the date of birth as per matriculation certificate shall be taken as conclusive proof of age and in case of .
an employee, who has not passed matriculation examination, his age should be admitted on the basis of a certificate from the Municipal record or Police Station of the place, where such an employee was born or school leaving certificate of a recognized school (Annexure R-9).
7. Since, in the case at hand, petitioner was matriculate, he submitted his matriculation certificate as well as school leaving certificate, wherein his date of birth is recorded as 12.09.1957 and as such same entry came to be recorded in service record of the petitioner. Since certificate sought to be brought on record by the petitioner with regard to proposed amendment in his date of birth is/was not matriculation certificate as required as per aforesaid Circular, same was not considered by the respondent-bank.
Though Shri Gaurav Gautam, learned counsel appearing for the petitioner, made sincere and concerted efforts to persuade this Court to agree with his contention that since factum with regard to mistake committed by the authorities while issuing matriculation certificate only came to the notice of respondents after his initial engagement, respondents-authorities ought to have taken into consideration duplicate certificate issued by Form G-625 as prescribed by 'HPSEB', which was issued after proper verification of record, but, this Court is unable to accept the aforesaid contention of Shri Gautam. As has been taken note above, there ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 6 is nothing on record from where it can be inferred that on which date application for correction of date of birth is/was preferred by petitioner on Form G-625, as prescribed by 'HPSEB'.
.
8. Apart from above, petitioner has not placed on record duplicate certificate, as claimed to have been issued by 'HPSEB', suggestive of the fact that his date of birth was corrected to 12.09.1958 instead of 12.09.1957 by 'HPSEB'. Petitioner has only placed on record certificate issued by Principal, GSSS, Ghoran, who has certified that date of birth of the petitioner i.e. 12.9.1958 is correct as per school record. Aforesaid certificate issued by Principal may not be sufficient to conclude that date of birth was corrected by 'HPSEB', and 'HPSEB' is not before us to certify correction, if any, made by it on the application filed by the petitioner. Otherwise also, as has been taken note above, petitioner's application at the time of initial engagement is/was considered strictly on the basis of matriculation examination as was required under Circular No.125, dated 4.1.2003, issued by HRD Division of respondent-bank.
9. It is not in dispute, as is clearly evident from the record that the petitioner kept mum for long 37 years and just 3½ months prior to his retirement made a representation to the respondents-authorities for carrying out correction in his service record. Though we are clear in our mind that there is/was no occasion, as such, for respondents to exceed to the aforesaid request having been made by the petitioner, but, even otherwise, we do not know on what basis the petitioner sought correction in ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 7 his service record because there is nothing on record to substantiate the claim of the petitioner that on his request duplicate certificate came to be issued by 'HPSEB'. It is only .
certificate issued by Principal, GSSS, Gharun, who has only stated that date of birth of the petitioner i.e. 12.9.1958 is correct as per record.
10. After having perused material placed on record by the respondents, we are in agreement with the submissions having been made by Mr.G.S. Rathour, learned counsel representing the respondents, that no steps, whatsoever, are/were taken by the petitioner for long 37 years to get his date of birth corrected and as such no indulgence can be shown to him by this Court that too when he has already superannuated on 30.09.2017. Similarly, we find from the record that every time petitioner, while submitting his personal information to enable the concerned officer to write his ACRs, has disclosed his date of birth as 12.9.1957 and not as 12.9.1958.
11. Though, there is nothing on record, placed by either of the parties, from where it can be inferred that there is/was limitation prescribed under Rules for seeking correction of date of birth, but by now it is well settled that the Government servant must do so without any unreasonable delay and if the Government servant approaches the employer at a belated stage or at the fag end of service, the general principle of refusing relief on the grounds of laches or stale claims, is generally applied by the Courts and Tribunals. Hon'ble Apex Court in Union of India vs. ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 8 Harnam Singh, (1993)2 SCC 162 has held that 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 correcting his age. 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 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 un-reasonable delay.
The Court has held as under:-
"7.
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 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 ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 9 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 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. This court said: (SCC pp.625-26, para 4) r "...The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistent with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record, and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record."
12. Hon'ble Apex Court in U.P. Madhyamik Shiksha Parishad and Others vs. Raj Kumar Agnihotri, (2005)11 SCC 465 reiterated the law laid down by it in Union of India vs. Harnam Singh supra and held as under:-
"16(2) State of Uttaranchal and Others vs. Pitamber Dutt Semwal, (2002)1 UPLBEC 441 SC.
In this case, here again, this Court was considering Rule 2 of the U.P. Recruitment Service ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 10 (Determination of Date of the Birth) Rules, 1974 and held as under:
"6. These rules, the validity of which have not been challenged, clearly stipulate that no application or representation shall be entertained for .
correcting any date or age record and the entry made in the service book shall be deemed to be the correct date of birth. Be that as it may, even de hors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the service book was prepared in 1965 and according to the appellant, he has signed the said service book at least on three occasions. In any case, the plea of the wrong recording of the age in the service book has been taken, nearly thirty years after the service book was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the High Court to have interfered with the decision of the appellant."
3. State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302, In this case, this Court held that the rule provided that an application for alteration of recorded date of birth would be entertained only if made within five years after entering the service.
This Court held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Government servant would not be permitted to challenge the entry at the fag end of his service.
4. Executive Engineer vs. Rangadhar Mallik, 1993 Supp (1) SCC 763.
In this case, this Court was considering Rule 65 of the Orissa General Finance Rules stipulating that representation for correction of date of birth made near about the time of superannuation shall not be admitted. This Court held that the representation for correcting the date of birth made by respondent after 18 years is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.
5. Govt.of A.P. vs. M. Hayagreev Sarma, (1990) 2 SCC
682. ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 11 The A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 was under
consideration in this case by this Court. The date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for alteration in the date of birth so .
recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commencement of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained under Births, Deaths and Marriages Registration Act, 1886 was not open.
6. Union of India vs. Harnam Singh, (1993) 2 SCC
162.
In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.
7. Burn Standard Co. Ltd. vs. Dinabandhu Majumdar, AIR 1995 SC 1499.
"10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 12 employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service .
career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."
8. In Secy. & Commr.Home Deptt. vs. R. Kirubakaran, 1994 Supp (1) SCC 155, this Court held : (SCC pp.158-59 & 160, paras 7 & 9) "An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible and before any such direction is issued, the Court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book.
::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 13As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this .
question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal."
It is thus seen from the above quoted judgments that this Court has consistently taken the view that correction in entries made in Government records on the basis of which the Government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement.
17. In the instant case, the U.P. Recruitment to Services (Determination of Date of Birth) Rules came into force w.e.f. 28.05.1974. Rule 2 of the Rule was amended by the first amendment Rules, 1980 of 07.06.1980."
13. Hon'ble Apex Court in Punjab & Haryana High Court at Chandigarh vs. Megh Raj Garg & Another, (2010)6 SCC 482, has held as under:-
"12. An analysis of the above reproduced rule makes it clear that the declaration of age made at the time of or for the purpose of entry into government service is conclusive and binding on the government servant. The only exception to this is that the government servant can make an application for correction of age within two years from the date of entry into service. This necessarily implies that an application made by a government servant for correction of age after two years of his entry into service cannot be entertained by the competent authority. However, the competent authority can, at any time, correct the age recorded in the service book or in the history service of a gazetted government employee if it is satisfied that the age has been so recorded with a view to give undue benefit to the employee / officer like continuance in service beyond the age of superannuation. Of course, while undertaking this exercise, the competent authority is bound to comply with the rule of audi alteram partem and give a reasonable opportunity to the ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 14 concerned employee/officer to represent his cause against the proposed change in the recorded age/date of birth. In other words, while there is a complete bar to the making of an application by the government servant for correction of his recorded age after two years .
from the date of his entry into government service, the competent authority can make correction at any time if it is found that the age recorded in the service book is incorrect and has been so recorded with a view to enable the concerned employee to continue in service beyond the age of superannuation or gain any other advantage.
13. Undisputedly, the date of birth of respondent No.1, who joined service in March 1973 was recorded in his service book as 27.3.1936. This was done keeping in view the declaration made by him in the application form submitted for the purpose of recruitment to the service and his matriculation certificate. Being a law graduate, respondent No.1 must have been aware of the date of birth i.e., 27.3.1936 recorded in his matriculation certificate and this must be the reason why he mentioned that date in the application form submitted to the Public Service Commission. If the correct date of birth of respondent No.1 was 27.3.1938 and this was supported by the certificates issued by the schools in which he had studied before appearing in the matriculation examination, then he would have immediately after joining the service made an application to the University for change of date of birth recorded in the matriculation certificate and persuaded the concerned authority to decide the same so as to enable him to move the State Government and the High Court for making corresponding change in the date of birth recorded in his service book in terms of Para 1 of Annexure-A to Chapter II of the Punjab Civil Service Rules, Volume I. However, respondent No.1 waited for more than ten years after entering into service and submitted an application dated 27.10.1983 to the University for effecting change in the date of birth recorded in the matriculation certificate by citing the school certificates as the basis for his claim.
14. The Syndicate of the University took about one year and three months to decide the matter in favour of respondent No.1 and the date of birth recorded in the matriculation certificate was changed from 27.3.1936 to 27.3.1938 sometime ::: Downloaded on - 28/11/2017 23:00:53 :::HCHP 15 in January/February 1985. Thereafter, respondent No.1 submitted representation dated 22.2.1985 to the Registrar of the High Court seeking correction in the date of birth recorded in the service book. His plea was finally rejected in January 1993. It is thus evident that .
respondent No.1 applied for change of the date of birth recorded in his service book much beyond the time limit of two years specified in the rule.
15. The High Court or for that reason the State Government did not have the power, jurisdiction or authority to entertain the representation made by respondent No.1 after more than twelve years of his entering into service. Therefore, neither of them committed any illegality by refusing to accept the prayer made by respondent No.1 on the basis of change effected by the University in the date of birth recorded in his matriculation certificate. Unfortunately, the trial Court, the lower appellate Court and the learned Single Judge of the High Court totally misdirected themselves in appreciating the true scope of the embargo contained in the relevant rule against the entertaining of an application for correction of date of birth after two years of the government servant's entry into service and all of them committed grave error by nullifying the decision taken by the State Government in consultation with the High Court not to accept the representation made by respondent No.1 for change of date of birth recorded in his service book. All the courts overlooked the stark reality that respondent No.1 had made application for change of date of birth recorded in the matriculation certificate after more than ten years of his entry into government service and the decision taken by the Syndicate to accept his request did not give him any cause for filing application or making representation for change of the date of birth recorded in the service book.
16. This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam Singh (supra), this Court considered the question whether the employer was justified in declining the respondent's request for correction of date of birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original application filed by him.::: Downloaded on - 28/11/2017 23:00:54 :::HCHP 16
While reversing the order of the Tribunal, this Court observed:
"7. 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 dispensed 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 the 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 correcting his age.
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 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 laches or stale claims, is generally applied 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 held by this Court in State of Assam v. Daksha Prasad Deka 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 cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC pp. 625-26, para 4) "
'4. ... The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date ::: Downloaded on - 28/11/2017 23:00:54 :::HCHP 17 of birth, unless the service record is first corrected consistently with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of .
the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record."
(emphasis supplied)
18. In Secretary and Commissioner, Home Department and others v. R. Kirubakaran (supra), this Court considered the question whether the Tamil Nadu Administrative Tribunal had the jurisdiction to entertain an application made by the respondent for correction of his date of birth just before superannuation. While answering the question in negative, the Court observed(SCC pp.158-59, para 7) "7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior.
According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure ::: Downloaded on - 28/11/2017 23:00:54 :::HCHP 18 prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in .
support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima r facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.
(emphasis supplied)"
14. It is quite evident from the aforesaid exposition of law laid down by Hon'ble Apex Court that though employee is well within its right to get his date of birth corrected in record, but only explanation to this is that he/she needs to make an application for correction of age within reasonable period from the date of entring into service. Hon'ble Apex Court in the judgment referred hereinabove has categorically held that the law of limitation may operate harshly but it has to be applied with all its rigours 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.::: Downloaded on - 28/11/2017 23:00:54 :::HCHP 19
15. True, it is, that in the case at hand, none of the parties, be it petitioner or respondents, have placed on record rules governing the service conditions of the petitioner, from where .
it could be inferred that what is the prescribed period of limitation for moving an application for correction of date of birth, but even then this Court, cannot lose sight of the fact that application/prayer for correction of date of birth came to be submitted in the instant case after 37 years that too just 3½ months prior to his retirement. Hon'ble Apex Court has specifically held in judgment relied hereinabove that where no period of limitation is prescribed, application for correction needs to be filed by employee within a reasonable period. Since, in the instant case, petitioner besides failing to substantiate his claim for correction of date of birth, has approached this Court after inordinate delay, which in no circumstance can be condoned while considering the request of petitioner for correction of date of birth, especially when there is no explanation, if any, rendered on record by the petitioner qua inordinate delay. Otherwise also, dispute in question is pure question of fact, which cannot be looked into/adjudicated under Article 226 of the Constitution of India, more particularly when alternative remedy is available, as has been held by Hon'ble Apex Court in State of Rajasthan vs. Bhawani Singh and Others, 1993 Supp (1) SCC 306:
"7. Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said ::: Downloaded on - 28/11/2017 23:00:54 :::HCHP 20 plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition."
.
16. Consequently, in view of detailed discussion made hereinabove as well as law laid down by Hon'ble Apex Court, we do not see any reason to exercise powers under Article 226 of the Constitution of India to undo the decision taken by the respondents, which otherwise appears to be based upon proper appreciation of Rules as well as law occupying the field. Present petition is dismissed.
17. Interim direction, if any, is vacated. All miscellaneous applications are disposed of.
(Sanjay Karol)
Acting Chief Justice
November 22nd, 2017 (Sandeep Sharma)
(aks) Judge
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