Himachal Pradesh High Court
Himachal Pradesh University vs Hem Raj Sharma on 16 July, 2019
Bench: V. Ramasubramanian, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.2168 of 2018 a/w
.
CWP No.370 of 2019
Decided on: 16.07.2019
1. CWP No.2168 of 2018
Himachal Pradesh University ...Petitioner
Versus
Hem Raj Sharma ...Respondent
2. CWP No.370 of 2019
Hem Raj Sharma
r to
Versus
...Petitioner
The Vice Chancellor, H.P. University &
another ...Respondents
Coram
The Hon'ble Mr. Justice V. Ramasubramanian, Chief Justice
The Hon'ble Mr. Justice Anoop Chitkara, Judge
Whether approved for reporting? Yes.
CWP No.2168 of 2018
For the petitioner: Mr.B.C. Negi, Senior Advocate with
Mr.Surender Verma and Mr.Nitin Thakur,
Advocates.
For the respondent: Mr.J.L. Bhardwaj, Advocate.
CWP No.370 of 2019
For the petitioner: Mr.J.L. Bhardwaj, Advocate.
For the respondents: Mr.B.C. Negi, Senior Advocate with
Mr.Surender Verma and Mr.Nitin Thakur,
Advocates.
V. Ramasubramanian, Chief Justice (Oral)
Challenging an order of the H.P. State Administrative Tribunal (for short, 'the Tribunal') partially ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 2 allowing an application praying for alteration of the entry relating to the date of birth of a person, the University as well .
as the individual have come up with these writ petitions challenging the portion of the order of the Tribunal about which they have a grievance.
2. Heard Mr.J.L. Bhardwaj, learned counsel for the individual and Mr.B.C. Negi, learned Senior Counsel appearing for the University.
3. The individual, who is the respondent in one writ petition and the petitioner in another writ petition, was appointed as a Clerk in the University and he entered service on 16.02.1982. At the time of his entry into service, his date of birth was entered in the service register as 10.8.1958.
Therefore, he was liable to retire on reaching the age of superannuation on 31.08.2018.
4. Two months before he was to be superannuated, the individual, who had by then risen to the position of Deputy Registrar of the University, made an application on 06.06.2018 for alteration of the entry relating to his date of birth. He claimed that his actual date of birth was 10.08.1960 and that, therefore, he should be allowed to continue till 31.08.2020. But ::: Downloaded on - 29/09/2019 00:50:34 :::HCHP 3 the said application was rejected by the competent authority of the University by an order dated 13.07.2018.
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5. Challenging an order of rejection, the individual filed an application in OA No.4309 of 2018 on the file of the Tribunal. The main plank of the argument of the individual before the Tribunal was that his elder brother who was working in the office of Accountant General, Haryana, was shown to have been born on 14.5.1958 and was retired on attaining the age of superannuation on 31.05.2018 and that, therefore, he could not have been born on 10.08.1958, within three months from the date of birth of his elder brother.
6. Unable to reconcile itself to this problem which was primarily one of Gynecology and Obstetrics, the Tribunal partially allowed the application of the individual directing the University to permit the applicant to continue in service at least till 11th March, 2019 or 31st March, 2019. The Tribunal thought that permitting the individual to continue for 192 days more, would reconcile the conundrum thrown by the date of birth of the elder brother of the petitioner.
7. Not satisfied with the relief so granted by the Tribunal, the individual has come up with one writ petition in ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 4 CWP No.370 of 2019. Challenging the order of the Tribunal directing the individual to be continued in service for a further .
period of 192 days, the University has come up with another writ petition in CWP No.2168 of 2018.
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 ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 5 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 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.
::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 6(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 ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 7 with the Tribunal for entertaining a claim after 25 years of joining service.
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(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 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}
9. Having seen the law on the point, let us now come to the facts of the case. Admittedly, the petitioner entered service on 16.02.1982 as a Senior Clerk-cum-Junior Assistant.
He was promoted to the post of Senior Assistant and later to the post of Superintendent Grade-II on 09.09.2009.
::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 8Subsequently, he was promoted as Section Officer on 30.01.2014. He was later promoted as Assistant Registrar of .
the University on 20.07.2016 and as Deputy Registrar on 01.01.2018.
10. From the date of his entry into service on 16.02.1982, the petitioner before the Tribunal never raised his little finger about the mistake in the service register relating to his date of birth, for a full period of 36 years. As per his own averments, a notification was issued by the University on 04.04.2018 informing him that he will be completing the age of 60 years on 10.08.2018 and that, therefore, he would be superannuated on 31.08.2018. It is only after this notification was issued that the individual made a representation on 06.06.2018 seeking alteration of the entry relating to the date of birth. Therefore, this is a clear case of the petitioner waking up to his rights after 36 years of entry into service, when he had just two more months of service left for retirement.
11. The circumstances under which the applicant before the Tribunal woke up to his rights, as stated by him before the Tribunal, make an interesting reading. According to the applicant before the Tribunal, his elder brother was ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 9 superannuated from the office of the Accountant General, Haryana on 31.05.2018, on the basis that his date of birth was .
14.05.1958. According to the applicant he realized the mistake in the entry relating to his date of birth, only after his elder brother's retirement on 31.5.2018. This itself was sufficient to throw the claim of the applicant out.
12. In fact even the Matriculation Certificate issued by the Himachal Pradesh Board of School Education indicates the date of birth of the applicant to be 10.8.1958 only. The claim of the applicant before the Tribunal was that even the entry in the Matriculation Certificate was wrong. According to the applicant, in the certificate issued by the concerned authorities upon completion of 8th standard, his date of birth was indicated as 10.5.1959. But this could not have been the basis for the claim that his actual date of birth was 10.8.1960.
13. Therefore, both on facts and in law, the Tribunal ought to have thrown out the application of the petitioner, in limine. But unfortunately the Tribunal granted a partial relief to the petitioner by granting extension of service by a period of 192 days, being unduly carried away by the fact that the petitioner's elder brother was shown to have been born on ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 10 10.05.1958 and that, therefore, the petitioner could not have been born on 10.08.1958. The Tribunal forgot that it was not .
entrusted with the obligation to find out the correct date of birth of the petitioner and to set right a gynecological problem. In cases of this nature, the only duty of the Tribunal is to find out whether a claim has been made in accordance with the rules and whether the claim is supported by evidence. In this case the claim of the petitioner to have been born on 10.08.1958 was not supported by any evidence. Moreover, the claim was highly belated, as it was made after 36 years of entry into service. The circumstances under which the petitioner claims to have come to know about his correct date of birth are also very peculiar and unbelievable. In any case they are unacceptable in a court of law. Therefore, the Tribunal committed a grave error in granting a partial relief to the petitioner. By directing the extension of service of the petitioner by a period of 192 days, the Tribunal has re-written the date of birth of the petitioner and fixed a via media date. This is completely contrary to law. Therefore, the writ petition filed by the University is liable to be allowed and the writ petition filed by the individual is liable to be dismissed.
::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 1114. However, relying upon the decision of the Supreme Court in Secretary and Commissioner, Home Department .
and others vs. R. Kirubakaran {1994 Supp (1) SCC 155}, it was contended by the learned counsel for the employee that the purpose and intent of the courts taking a strong view was to prevent any adverse effect falling upon the juniors waiting for promotion. According to the learned counsel for the employee, no such contingency arises in this case and hence the Tribunal ought to have allowed the application in full. But we are not impressed with the aforesaid arguments.
15. Note 6 under Fundamental Rules 56 stipulates three conditions for considering a request for alteration of date of birth. The first and foremost condition is that a request in this regard should be made within five years of entry into service. Once it is found that this condition is not satisfied, we are not concerned with the reasons as to why courts have come down heavily upon such practice.
16. The learned counsel for the employee also relied upon the decisions of the Supreme Court in CIDCO vs. Vasudha Gorakhnath Mandevlekar {(2009) 7 SCC 283};
Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 12 Company Limited { (2014) 6 SCC 434} and Bharat Coking Coal Limited and others vs. Chhota Birsa Uranw {(2014) 12 .
SCC 570}. But we do not know how these decisions will go to the rescue of the employee. In CIDCO, the employee had disclosed her date of birth correctly at the time of entry into service, but it was later found to have been tampered. It was in that context that the Supreme Court invoked Section 35 of the Indian Evidence Act to come to the conclusion that the entries made in the statutory registers would prevail over an entry made in the school register. Therefore, the said decision is not applicable to a case where no birth register extract is also relied upon.
17. In Ishwarlal Mohanlal Thakkar, the employee concerned was a workman category employee. He went before the Labour Court and secured an award. No rule similar to Note 6 under Fundamental Rules 56 stood in the way of the workman in that case. Therefore, the said case is also of no assistance to the employee.
18. The decision in Bharat Coking Coal Limited will also not assist the petitioner, since there was a factual finding in that case that the employee concerned did not seek ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP 13 rectification of the entry in the service register at the fag end of his service. Therefore, all the contentions of the learned .
counsel for the employee are liable to be rejected.
19. In fine, the writ petition filed by the University in CWP No.2168 of 2018 is allowed and the order of the Tribunal set aside. The writ petition filed by the employee in CWP No.370 of 2019 is dismissed. The Original Application filed by the employee before the Tribunal shall stand dismissed, upholding the decision of the University to retire him from service on the basis of the entry available in the service register. There will be no order as to costs.
20. Pending application(s), if any, also stand(s), disposed of.
( V. Ramasubramanian ), Chief Justice ( Anoop Chitkara), Judge July 16, 2019 ( vt ) ::: Downloaded on - 29/09/2019 00:50:35 :::HCHP