IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.10830 of 2009 Date of decision: 7th August, 2009 Ram Lal Arora … Petitioner Versus Union Territory, Chandigarh and others … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HOB’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.K. Chopra, Senior Advocate with Mr. Amit Chopra, Advocate for the petitioner. Notes: 1. Whether Reporters of local newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA, J. Claim raised by the petitioner for change of the date of birth recorded in the service record, at the time of initial joining of service, on the basis of the Matriculation Certificate, has been rejected by the respondent employer and the Central Administrative Tribunal vide order (Annexure P-8) dated 4th October, 2006 on the ground that the employee has obtained Birth Certificate from the Registrar of Births and Deaths after completion of 34 years of service, that too at the fag end of career, i.e. on the eve of retirement. By filing present writ petition, petitioner has assailed the orders passed by the respondents and has prayed that his date of birth be changed from 20th April, 1948 to 20th April, 1950. Brief facts of the case can be gathered from the pleadings made in the present writ petition and before the Tribunal and the Civil Writ Petition No. 10830 of 2009 correspondence exchanged between the petitioner employee and his employer. Petitioner joined the service in the Electricity Wing of the Engineering Department of Union Territory, Chandigarh Administration as Lower Division Clerk on 20th December, 1971. The date of birth recorded in the matriculation certificate was noted in the service record of the petitioner employee. In the matriculation certificate, date of birth recorded was 20th April, 1948. The petitioner was promoted as Upper Division Clerk on 12th January, 1977. He was due to retire on 20th April, 2008 (by now petitioner stands retired). Case of the petitioner is that in the year 2004, he learnt that the respondent employer has accepted the prayer regarding change of date of birth made by a co-employee. On realizing that the benefit of correction of date of birth is being extended to other employees, petitioner made efforts and visited the office of the Registrar, Births and Deaths, Municipal Corporation, Phagwara and applied for issuance of birth certificate. As per the birth certificate issued on 30th March, 2005, the date of birth of the petitioner recorded therein was 20th April, 1950. It will be pertinent to notice that birth certificate so issued contain names of parents of the petitioner. On 15th April, 2005, petitioner represented to the Department vide Annexure P-4 that correction be made in his date of birth in the service record on the basis of actual and correct date of birth. The petitioner enclosed with the representation certified copy of the birth certificate. The request was declined by the Chief Engineer, Engineering Department, Union Territory Chandigarh on the ground that such request has been made after 30 years of his entry into Government service. Furthermore, the rules prescribe that such request should have been made within two years from the date of entry into Government service. The respondent employer further stated that at the time of entry into service, petitioner was a graduate and he remained silent 2 Civil Writ Petition No. 10830 of 2009 for a long time, therefore, his request cannot be accepted. The petitioner assailed the order of the employer before the Central Administrative Tribunal and urged that vide Annexure P-2, in the same Department, one Ujjagar Singh, Lorry Driver was granted similar relief and his date of birth was corrected in the record. Therefore, the petitioner submitted that he is also entitled to the similar treatment. Mr. R.K. Chopra, Senior Advocate has submitted before us that department of the petitioner has rectified the date of birth not only in case of Ujjagar Singh, Lorry Driver, whose instance has been noted by the Tribunal but also in the case of Chaman Lal, Fitter and Mrs. Kawaljit, Junior Assistant. Learned senior counsel has contended that the similar treatment ought to have been extended to the petitioner. It has been submitted that Article 14 of the Constitution of India binds the respondent employer to equally treat the petitioner as others, in whose case same benefit of correction of date of birth was granted. Learned senior counsel has further contended that the rules have not been rightly interpreted by the Department and the petitioner was well within his rights to submit the application for correction of date of birth before his retirement. Mr.Chopra has further relied upon Annexure P-1, whereby recommendation was made for correction of date of birth in respect of Ujjagar Singh, Lorry Driver. A perusal of Annexure P-1 reveals that there are relevant instructions regarding the change in date of birth of a Government employee. These instructions prescribe that the concerned official, who seeks correction, should report to his employer, within a period of five years from the date of his first entry into Government service, for any change in the date of birth, along with any specific evidence/ proof. Mr.Chopra has stated that despite these instructions, the date of birth of Ujjagar Singh, Lorry Driver was changed six months prior to the date of his retirement. 3 Civil Writ Petition No. 10830 of 2009 According to Mr.Chopra, Ujjagar Singh, Lorry Driver had represented to the authorities after a period of almost 39 years of service. Thus, the case of the petitioner cannot be distinguished from the case of Ujjagar Singh, Lorry Driver. We have perused the impugned order passed by the Tribunal. The Tribunal has rightly placed reliance upon the judgment of the Hon’ble Apex Court in ‘Chandigarh Administration v. Jagjit Singh and another’ AIR 1995 SC 705 to hold ‘that merely because an illegal or unwarranted order has been passed by an authority in favour of some other employee, similarly situated, such action on the part of the authority can never be a ground for issuance of a writ in favour of the petitioner on the plea of discrimination. The courts cannot be a party to such directions which have the effect of compelling the authorities to repeat such illegality or to pass illegal and unwarranted orders.’ We are unable to find fault with the above said finding. Therefore, the plea that as in case of similarly situated employees, i.e. Ujjagar Singh, Chaman Lal and Mrs.Kawaljit, correction regarding date of birth was made, the same should also be made in the case of the petitioner, cannot be accepted. In the present case, entry regarding date of birth in the service record was made when the petitioner employee himself had given the date on the basis of matriculation certificate. No effort was made by the employee within reasonable time to get the date of birth corrected. In ‘State of Punjab v. S.C. Chadha’ 2004 (3) SCC 394, Hon’ble Supreme Court, relying upon various judicial pronouncements, earlier made, held that the employee, who after three decades, approached for correction of date of birth contrary to the one mentioned in the higher secondary certificate, on the basis of which entry of date of birth was made 4 Civil Writ Petition No. 10830 of 2009 in the service record, is not entitled to the relief, as prayed by the present petitioner. The following observation made by their Lordships in S.C. Chadha’s case (supra) clinches the issue against the petitioner: “8. Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the concerned Administrative Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 9. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam v. Daksha Prasad Deka 1970 (3) SCC 624 this Court said that the date of the compulsory retirement: ‘[M]ust 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 5 Civil Writ Petition No. 10830 of 2009 service record is first corrected consistently with the appropriate procedure.’ In the case of Govt. of A.P. v. M. Hayagreev Sarma 1990 (2) SCC 682 the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the Rules framed by the State Government referred to above. It was inter alia observed by this Court: ‘7. The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth.’ xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 14. In the instant case the higher secondary examination certificate was issued on 3-6-1962 which contained information that the date of birth of the respondent was only 19-6-1944. If the said certificate disclosed a wrong date, it is not explained by the respondent as to why he did not make any move to get it corrected at that point or on any one of the occasions when he sought and obtained employment in 7/8 public institutions. Merely because in 1994 an opportunity was granted to the government employees to get their date of birth corrected, that does not take away the effect of inaction and continued silence for more than three decades, which dehors laches on his part would seriously reflect on the bona fide nature of the claim 6 Civil Writ Petition No. 10830 of 2009 itself. Even in the application made for employment in the year 1992-93 the date of birth was indicated, as noted above to be 19-6-1944. No contemporaneous document was produced to show that recording of the date of birth to be 19-6-1944 was wrong. Accepting the plea of the respondent would result in two public records, educational on one side and service on the other reflecting two different and conflicting dates of birth. Such anomalous situations are to be averted and not to be countenanced.” In S.C. Chadha’s case (supra), appeal of the State was allowed and the direction issued by the High Court that date of birth be corrected, was set aside. The case of the petitioner is no better than the case of S.C. Chadha. The petitioner joined service on 20th December, 1971. He furnished Matriculation Certificate, in which his date of birth was recorded as 20th April, 1948. Therefore, entry regarding date of birth to this effect was made in the service record. The petitioner made an application for correction of date of birth on 15th April, 2005 that on the basis of birth certificate obtained from the Registrar, Births and Deaths, his date of birth be changed to 20th April, 1950. At that time, retirement of the petitioner was due. In ‘State of Orissa v. Ramanath Patnaik’ 1997 (5) SCC 181, the Hon’ble Supreme Court, relying upon ‘State of T.N. v. T.V. Venugopalan’ 1994 (6) SCC 302, held as under: “4. When entry was made in the service record and when he was in service, he did not make any attempt to have the service record corrected. Therefore, any amount of evidence produced subsequently would be of no avail. The High Court, therefore, has committed manifest error of law in refusing to entertain the second appeal.” 7 Civil Writ Petition No. 10830 of 2009 Guided by the principles of law laid in S.C. Chadha’s case and Ramanath Patnaik’s case (supra), we are unable to come to the rescue of the petitioner. The date of birth is a question of fact. Whether the petitioner was born on 20th April, 1948 or on 20th April, 1950, cannot be determined in proceedings while exercising writ jurisdiction. The veracity of the birth certificate, relied by the petitioner, cannot be vouchsafed. Even otherwise, we are of the view that no infirmity can be found in the order passed by the Tribunal. This Court, while exercising supervisory jurisdiction, is unable to find any fault with the order of the Tribunal, as the learned Counsel has failed to point out any patent irregularity or perversity in the order passed by the Tribunal. Hence, present writ petition fails and is dismissed without any order as to costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE August 7, 2009 rps 8