IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 6749 of 2008. Reserved on: 13.07.2010. Decided on: 21.07.2010. Nathu Ram. …Petitioner. -Versus- The Secretary, Irrigation & Public Health and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. M.C. Verma, Advocate. For the respondents : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was engaged as daily waged mason w.e.f. 1987. He disclosed his date of birth to be 6/1939. Accordingly, in all the muster rolls issued by the respondent-department, the date of birth of the petitioner was recorded as 6/1939. He was retired at the age of 60 years as per his date of birth disclosed by him to the department on 1st January, 2000. Petitioner claims that his actual date of birth was 14.06.1949 and not 6/1939. He produced the certificate issued by the Secretary of the Gram Panchayat, certifying his date of birth to be 14th June, 1949. Thereafter, the Assistant Engineer, Irrigation-Cum-PH-Sub-Division, Koti has referred the matter to the Chief Medical Officer, Chamba. The Medical Board opined that the age of the petitioner by appearance was more than 45 years, but radiologically it was more than 40 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. years. Thereafter, the Assistant Engineer, Irrigation-Cum-PH-Sub- Division, Koti looked into the matter. The matter was also referred to the Police for investigation. 2. Mr. M.C. Verma, learned counsel for the petitioner has strenuously argued that the date of birth of his client was 14.06.1949 and not 6/1939 and he has been wrongly retired. 3. Mr. Vikas Rathore, learned Deputy Advocate General has strenuously argued that the date of birth of the petitioner was recorded as 6/1939 on the basis of the information supplied by the petitioner and the certificate relied upon by the petitioner, certifying his age to be 14.6.1949 is based on manipulated records. 4. I have heard the learned counsel for the parties and gone through the records carefully. 5. Petitioner has disclosed his date of birth to be 6/1939 on the basis of which the entries were made in the muster rolls, copies of which are placed on record as Annexures R-2, R-3, R-4, R-5 and R-6, respectively. A bare perusal of Annexure R-2 reveals that there is scratching /cutting in the date of birth of the petitioner. Similarly, in Annexure R-12, 1945 has been substituted by 10.6.1952, as far as his younger brother is concerned. The matter was also got enquired into by the department from the Incharge, Police Station Sadar, Chamba. He has also opined that it appears that the initial entry has been scratched with the blade and this was done by the Secretary of the Gram Panchayat, who has died three years back. The statements of the family members of the petitioner were also recorded and placed on record vide Annexures R-C and R-D. These two documents also reveals that the petitioner has already attained the age of 60 years at the time of his retirement. 6. Mr. M.C. Verma, learned counsel for the petitioner has also argued on the basis of Annexure A-4 that in the absence of any documentary evidence the age recorded in the medical certificate was bound to be accepted. A bare perusal of certificate Annexure A-3 reveals that the opinion given by the Medical Board was vague. The Medical Board opined that petitioner as per appearance was more than 45 years, but radiologically, he was more than 40 years. Annexure A-4, instructions will only be applicable where there is no documentary evidence. Petitioner himself has placed documentary evidence on record, which has been refuted by the respondent-department. Thus, it cannot be said that there were no documents available for determining the age of the petitioner. In view of this, the medical opinion cannot be relied upon. It is apparent from the discussion made hereinabove that on the basis of perusing the documents, there are cuttings made in the record and the matter has been looked into by the department in depth and it has come to the right conclusion that the date of birth of the petitioner was 6/1939 and not 14.6.1949, as claimed by him. Moreover, there is delay also in seeking correction of date of birth by the petitioner. Petitioner has given his date of birth as 6/1939. It is only at the time of his retirement that he has produced the certificate Annexure A-1 to substantiate that his actual date of birth is 14.06.1949. 7. Their lordships of the Hon’ble Supreme Court in Pubjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg and another, 2010 (6) Scale have held that the entry of date of birth is to be corrected at the earliest. Their lordships have held as under: “10. 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 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. 11. 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. 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 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. 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. 8. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge July 21, 2010. (bhupender)