RSA No. 2825 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2825 of 2009 Date of Decision: 20.10.09 1. State of Punjab, Department of Revenue, Chandigarh, through its Secretary. 2. State of Punjab, Department of Revenue, Chandigarh, through its Financial Commissioner. 3. The Commissioner, Jalandhar Division, Jalandhar. 4. The Collector, Gurdaspur. ... Appellants Versus Yash Pal son of Bhima Ram presently working as Tehsildar, Pathankot, District Gurdaspur. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Vivek Chauhan, Assistant Advocate General, Punjab, for the appellants. Mr. Arun Jain, Senior Advocate, with Mr. Rohit Ahuja, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, RSA No. 2825 of 2009 2 dated 14.03.08, rendered by the Court of Additional Civil Judge (Senior Division), Pathankot, vide which, it decreed the suit of the plaintiff, and, the judgement and decree dated 27.01.09, rendered by the Additional District Judge (Adhoc), Fast Track Court, Gurdaspur, vide which, he dismissed the appeal. 2. The facts, in brief, are that, Yash Pal, plaintiff, was born on 22.12.55. It was stated that, when the plaintiff, was got admitted, in the School, by his parents, they being illiterate, mentioned his date of birth, as 10.04.53, instead of 22.12.55, which was reflected, in the School record. It was further stated that when the plaintiff, joined the service of the State of Punjab, as a Civil Servant, his date of birth, as per the certificates, was recorded, as 10.04.53, instead of 22.12.55, in the service record. It was further stated that, in the month of January, 1994, the plaintiff, came to know about his actual date of birth, as 22.12.55. It was further stated that the plaintiff immediately moved a representation, to defendant No. 3, seeking correction, in his date of birth, in the service record, but no action, was taken. The defendants, were many a time, asked to effect the necessary correction, in the date of birth of the plaintiff, but to no avail. Ultimately, a suit for declaration and mandatory injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable; that no legal and valid notice under Section 80 of the Code of Civil Procedure, was RSA No. 2825 of 2009 3 served upon the defendants; that the suit, was time barred; that the plaintiff, had no locus-standi, to file the suit; and that the suit was pre- mature. It was stated that, as per the Matriculation Certificate of the plaintiff, his date of birth, was recorded, in the service book, as 10.04.53. It was further stated that no application, qua change of date of birth, was ever moved, by the plaintiff, before the Commissioner, Jalandhar Division, Jalandhar,during the year 1994. It was further stated that the plaintiff, took this plea, just with a view to cover the delay. It was further stated that even no reminder or request, was ever received, in the office of the Commissioner, Jalandhar Division, Jalandhar, before the year 2007. It was further stated that if the plaintiff, had moved any application, during the year 1994, then why he remained silent for more than 12 years. It was further stated that the date of birth, given by an employee, in his application form, submitted to a recruiting agency, shall be treated as final, and no change, could be allowed, after entry into government service. It was further stated that an employee already, in the service of the Government of Punjab, on the date of coming into force of the Punjab Civil Services (First Amendment) Rules, Volume 1, Part 1, 1994, could apply for the change of his date of birth, within a period of two years, from the date of coming into force the aforesaid Rules, on the basis of confirmatory documentary evidence, such as Matriculation Certificate or Municipal Birth Certificate etc. It was further stated that, no request, for the change of date of birth, was to be entertained, after the expiry of the RSA No. 2825 of 2009 4 prescribed period of two years It was further stated that the plaintiff, did not make any application, for the change of his date of birth, as per the Rules and instructions of the government, issued from time to time. It was further stated that the date of birth of the plaintiff, could not be changed, at this stage, as the same, had already been recorded, in the service record, and he did not apply for the same, in time. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled to decree for declaration as prayed for? OPP (ii) Whether the plaintiff is entitled to decree for mandatory injunction? OPP (iii) Whether the suit is not maintainable? OPD (iv) Whether the suit of the plaintiff is time barred as per Rule 2.5 of the Punjab Civil Services Rules Volume 1, Part 1? OPD (v) Whether the plaintiff has got no locus standi to file the suit? OPD (vi) Whether the suit of the plaintiff is pre- mature? OPD (vii) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the defendants/appellants, which was dismissed, by the Additional District RSA No. 2825 of 2009 5 Judge (Adhoc), Fast Track Court, Gurdaspur, vide judgement and decree dated 27.01.09. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the defendants/appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the Courts below, on account of misreading and misappreciation of evidence, and the relevant Rules, on the point, recorded a perverse finding, that the suit of the plaintiff, was not barred by limitation? (ii) Whether the Courts below, recorded perverse findings, on account of misreading and misappreciation of evidence, as also against the settled position of law, that the plaintiff/respondent, was not estopped, from filing the suit, by his act and conduct? 10. The Counsel for the appellants, submitted that, at the time of entry into service, the plaintiff/respondent, got recorded his date of birth, as 10.04.53, as is evident, from P12, copy of the first page of the service book. He further submitted that, though, there is, no dispute, with regard to the legality, validity and authenticity of the birth certificate P2, produced, by the plaintiff/respondent, which was issued by the office of the Additional District Registrar, Births and Deaths, Gurdaspur, regarding his date of birth, as 22.12.55, yet he was required RSA No. 2825 of 2009 6 to file a suit, within the period of limitation i.e. within a period of three years, from the date he came to know of his actual date of birth. He further submitted that, according to the plaintiff, he came to know of his correct date of birth, on the basis of the certificate, referred to above, in January, 1994, yet he filed the suit, in the year 2007, which was palpably barred by time. He further submitted that no representation dated 08.01.94 was sent by the plaintiff to the Commissioner for correction of his date of birth. He further submitted that even the plaintiff/respondent, was estopped, from filing the suit, by his act and conduct. He further submitted that the Courts below, on account of misreading and misappreciation of evidence and the settled position of law, recorded perverse findings, that the plaintiff/respondent, was not estopped, from filing the suit, and that the same, was within limitation. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondent, submitted that, no fraud, was committed, by the plaintiff/respondent, with the department, by giving his wrong date of birth. He further submitted that, as soon as, the plaintiff, came to know of his correct date of birth, on the basis of the birth certificate P2, issued by the Additional District Registrar, Births and Deaths, Gurdaspur, he filed a representation, before the Commissioner, Jalandhar Division, Jalandhar, on 08.01.94, copy whereof, is P3, for correction of his date RSA No. 2825 of 2009 7 of birth, but the same was not decided, by him immediately. He further submitted that thereafter, a number of reminders, were sent, by the plaintiff/respondent, to the Commissioner, Jalandhar Division, Jalandhar, for correction of his date of birth, and decision, on his representation. He further submitted that, ultimately, that representation of the plaintiff/respondent, was rejected, by the Commissioner, Jalandhar Division, Jalandhar, on 19.10.07, vide an order, which was conveyed to him, vide letter, copy whereof is P11 dated 07.11.07. He further submitted that cause of action, accrued to the plaintiff/respondent, on 07.11.07, whereas, the suit, was filed, by him, on 13.11.07. He further submitted that, thus, the suit of the plaintiff, was rightly held to be within limitation. He further submitted that the plaintiff, was not estopped, from filing the suit, by his act and conduct. He further submitted that P2, as submitted by the Counsel for the appellants, is an authentic document, and was duly proved. He further submitted that, since the plaintiff/respondent, filed a representation, he waited for the decision of the same. He further submitted that no government employee, while in service, can incur the wrath of his superiors, by resorting to the litigation,by filing a suit, in the Court of law, until and unless, he is forced to do so. He further submitted that even the Punjab Civil Services Rules, Volume 1, Part 1, 1994, were amended. He further submitted that, in the said Rules, in Annexure (A) to Chapter II, paragraph I, a Rule was substituted, that the employees, already in service of the government of Punjab, on the date of coming RSA No. 2825 of 2009 8 into force of the Punjab Civil Services (First Amendment) Rules, Volume 1, Part 1, 1994, may apply for the change of date of birth, within a period of two years, from the date of coming into force of these rules, on the basis of confirmatory documentary evidence such as Matriculation Certificate or Municipal Birth Certificate etc. He further submitted that the plaintiff/respondent, filed the representation for correction of his date of birth on 08.01.94, before these amended Rules, came into existence. He further submitted that, therefore, the suit of the plaintiff, by no stretch of imagination, could be said to be barred by limitation. He further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in RSA No. 2825 of 2009 9 the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. No doubt, at the time of entry into service, the date of birth of the plaintiff/respondent, was recorded, as 10.04.53. When the plaintiff/respondent, obtained his birth certificate P2 (in Urdu), from the office of the Additional District Registrar, Births and Deaths, Gurdaspur, translated copy whereof, is P2/A, he came to know, that his date of birth, therein, was recorded, as 22.12.55. There is, no dispute, with regard to the factum, that the certificate P2, is a genuine document. Dr. Parvej Tuneja, PW1, brought the relevant register, in which, the entry of the date of birth of the plaintiff/respondent, was made. He stated that, as per the birth entry of the plaintiff/respondent, made in the said register, he was born, on 22.12.55. He also proved PW1/B, copy of the entry. Yashpal, plaintiff, when appeared, as, PW4, in his statement, stated that, it was in the Month of January, 1994, when there was a social function, in the family, that the elders, in the close proximity of his relations, were present. They apprised him that his date of birth was 22.12.55, and not 10.04.53. It was, at that time, that he came to know of his exact date of birth. Vide notification D3 dated 21.06.94, the Punjab Civil Services Rules, Volume 1, Part 1, 1994, were amended. In the said rules, in Annexure (A) to Chapter II, for paragraph I, the following Rule was substituted:- “In regard to the date of birth,a declaration of age made at the time of or for the purpose RSA No. 2825 of 2009 10 of entry into government service shall, as against the government employee in question, be deemed to be conclusive. The employees already in the service of the Government of Punjab on the date of coming into force of the Punjab Civil Services(First Amendment) Rules, Volume 1, Part 1, 1994, may apply for the change of date of birth within a period of two years, from the coming into force of these rules, on the basis of confirmatory documentary evidence such as Matriculation Certificate or Municipal Birth Certificate etc. No request for the change of date of birth shall be entertained after the expiry of the said period of two years. Government, however, reserves the right to make a correction in the recorded age of a government employee at any time, against the interests of the government employees, when it is satisfied that the age recorded in his service book or in the history of service of a gazetted government employee, is incorrect and has been incorrectly recorded with the object that the government employee may derive some unfair advantage therefrom.” 13. According to the afore-extracted Rule, a government employee, already in service of the Government of Punjab, on the date of coming into force of the Punjab Civil Services (First Amendment) Rules, Volume 1, Part 1, 1994, could apply for change of his date of birth, within a period of two years, from the coming into force of the same, on the basis of confirmatory documentary evidence, such as Matriculation Certificate or Municipal Birth Certificate etc. On the basis of the afore-extracted Rules, the plaintiff, was entitled to apply for the change of his date of birth within 2 years. However, it is evident, from the statement of Yashpal, PW4, that he applied, for the RSA No. 2825 of 2009 11 change of his date of birth, as 22.12.55, on 08.01.94, vide representation, copy whereof is P3. It is evident, from P3, that it was addressed to the Commissioner, Jalandhar Division, Jalandhar. Alongwith this representation, for change of date of birth, as 22.12.55, the plaintiff, also attached a copy of the birth certificate, and copy of the Matriculation Certificate. The postal certificate, showing that, this representation, was sent, to the Commissioner, Jalandhar Division, Jalandhar, on 08.01.94, is exhibit P10. It was, thus, proved, from the postal certificate P10, issued by the post-office, that actually, this representation, copy whereof, is P3, for the change of date of birth of the plaintiff, was despatched, to the Commissioner, Jalandhar Division, Jalandhar, on 08.01.94. It was not, that it was a created document. Once, this representation, was addressed, to the Commissioner, Jalandhar Division, Jalandhar, at its correct address, and was out of the hands of the plaintiff/respondent, the presumption, was that, it reached the addressee, at his address. No doubt, the defendants, disputed the receipt of this representation, by the office of the Commissioner, Jalandhar Division, Jalandhar, yet, they failed to prove the same. On the other hand, Rajinder Kaur, Superintendent, Grade-II, Office of the Commissioner, Jalandhar Division, Jalandhar, when appeared, as DW1, during the course of her cross-examination, stated that written statement was signed, by the Commissioner, Jalandhar Division, Jalandhar. She further stated that in the index of the written statement, containing the annexures of documents, copy of the order P11, copy of RSA No. 2825 of 2009 12 the service book P12, copy of the representation P4, and another representation P3, as also copies of the office noting P13, were mentioned. She further admitted, during the course of her cross- examination, that all the above referred to documents, were produced, by the defendants, alongwith the written statement, from the record of the Commissioner, Jalandhar Division, Jalandhar. She, in clear-cut terms, admitted, during the course of her cross-examination, that no order on P3, was passed, by the office of the Commissioner, Jalandhar Division, Jalandhar. No doubt, she volunteered, later on, that P3, was part of P4. Such like subsequent statement, made by her, does not appear to be correct, as it was seemingly made, just with a view to wriggle out of the admission, earlier made by her, in the same statement. She stated that all the communications or representations, addressed to the Commissioner, received in their office, are duly entered in the receipt book/receipt register but P3 was not entered therein. She further stated that she did not work, as Receipt Clerk, in the year 1994. She did not herself see the receipt and despatch register, for the year 1994. She stated that, she obtained the reports, from the dealing-hand, and the Senior Assistant, as also the Diary Clerk, before making the statement. However, those reports, were not produced, in the Court, nor those witnesses, were examined, to prove that actually the same, were made, on the basis of the receipt and the despatch register. Even the receipt and the despatch register, were not produced, in the Court, nor proved. She stated that, she took charge, as RSA No. 2825 of 2009 13 Superintendent, from January, 2007, and prior to that, she had no personal knowledge, about the receipt of the letter/representation dated 08.01.94, from the plaintiff. She further stated that the office of the Commissioner, Jalandhar Division, Jalandhar, called upon the plaintiff, to disclose the mode of sending the representation dated 08.01.94, and he sent the reply, stating therein that, he sent the same, by post. She further stated that the representation P3, made by the plaintiff, was rejected, by the Commissioner, Jalandhar Division, Jalandhar, without passing any speaking order. From the evidence, produced by the plaintiff, and the statement of Rajinder Kaur, DW1, it was, thus, duly proved, that representation P3, dated 08.01.94, was sent by the plaintiff, to the Commissioner, Jalandhar Division, Jalandhar, through postal receipt, P10, for the correction of his date of birth, as 22.12.55. The Commissioner, Jalandhar Division, Jalandhar, rejected the same, without passing any speaking order thereon. Ultimately, the order passed on that representation was conveyed, vide letter dated 07.11.07, copy whereof, is P11 to the plaintiff/respondent. When the representation P3 dated 08.01.94 of the plaintiff, was pending, in the office of the Commissioner, Jalandhar Division, Jalandhar, for the correction of his date of birth, as 22.12.55, on the basis of the birth certificate P2, he being in government service, waited for the decision of the same eagerly. He also continued giving reminders, to the office of the Commissioner, Jalandhar Division, Jalandhar, copy of one of which is P4. It was after the receipt of the reminder, that the office of RSA No. 2825 of 2009 14 the Commissioner, Jalandhar Division, Jalandhar, woke up from its deep slumber, and, ultimately, after obtaining the copy of the birth certificate and copy of the representation P3, decided the same, and decision of rejection, was conveyed, to him, vide letter dated 07.11.07. An employee, in government service, normally does not take cudgels with the authorities concerned. He knows, that he has to work, in the office, and, in case, he takes cudgels with the authorities concerned, damage to his service, could be caused. He also knows that, in that event, his annual confidential reports, could be damaged, so as to block his further promotion. It was, under these circumstances, that from 1994 to 2007, the plaintiff, waited for the decision, on his representation, dated 08.01.94, copy whereof, is P3, and when, ultimately, the same was rejected, he within no time, filed the suit. The cause of action, accrued to the plaintiff/respondent, when the order of rejection of his representation P3, was conveyed, to him, vide letter dated 07.11.07. The suit, having been filed, within a period of three years, from that date, could certainly be said to be well within time. 14. The Counsel for the appellants, however, placed reliance on Rama Kant Sharma Vs. Haryana State, 1990(2), RSJ, 213, in support of his contention, that since, at the time of entry into service, the date of birth of the plaintiff, was recorded as 10.04.53, after such a long time, he could not claim the correction of his date of birth. In Rama Kant Sharma's case (supra), concurrent findings, were recorded, by the Courts below, that the plaintiff, came to know about his correct date of RSA No. 2825 of 2009 15 birth, in 1950, but he filed the suit in 1980. In these circumstances, it was held, that the suit, was barred by time. The facts of the aforesaid case, are clearly distinguishable, from the facts of the instant case. In the instant case, as stated above, the plaintiff, came to know of his correct date of birth, in January, 1994. Immediately, thereafter, on 08.01.94, he sent a representation for correction of his date of birth alongwith a copy of his birth certificate, regarding his date of birth, as 22.12.55, and a copy of the Matriculation Certificate, through postal receipt, copy whereof is P10. Even, the plaintiff, could apply for correction of his date of birth, on the basis of confirmatory documentary evidence like Matriculation Certificate or birth certificate, within a period of two years, from the date of issuance of the notification, D3, referred to above, issued in 1994. He even applied for correction of his date of birth, before the issuance of notification. It has also been held above, that his representation dated 08.01.94, was rejected, and he was conveyed decision thereof, vide letter dated 07.11.07 exhibit P11. So, cause of action, accrued, to him, on 07.11.07, and thereafter, he filed a suit, within the period of three years. No help, therefore, can be drawn, by the Counsel for the appellants, from the aforesaid case, the facts whereof, are clearly distinguishable, from the facts of the instant case. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 15. The next question, that arises for consideration is, as to RSA No. 2825 of 2009 16 whether, the plaintiff/respondent, was estopped, from filing the suit, for his act and conduct. The answer to this question, is in the negative. This Court, in Hari Parshad Handa Vs. The State of Punjab (1985-1) 87, PLR, 39, held as follows- “The statement regarding the date of birth made by the employee is based upon his belief and not his personal knowledge. From further information it would always be