HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. : 1006 of 2007. Reserved on: 20.3.2008. Decided on: 7.4.2008. State of Himachal Pradesh ……… Petitioner. Versus Mor Dhawaj ………Respondent. Coram: The Hon’ble Mr.Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the petitioner: Mr.R.K. Bawa, Advocate General, with Mr.J.K. Verma, Deputy Advocate General. For the respondent: Mr.Harish Behal, Advocate. Per V.K. Ahuja, J.: This judgment shall dispose of the writ petition filed by the State of H.P. under Articles 226/227 of the Constitution of India against the order passed by the learned State Administrative Tribunal (here-in-after referred to as ‘SAT’), dated 8.12.2006. Briefly stated the facts of the case are that the respondent filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985. It was alleged by the respondent that he had made representation earlier for correction of his date of birth as 15.2.1938 against entry in the record which showed his date of birth as 16.1.1936. The applicant was initially appointed as JBT in the Education Department of Himachal Pradesh on 2.1.1958 and worked at different places. He alleged that his date of birth in the admission register of the school was entered as Vikrami Samvat 4th Phalgun, one thousand, nine hundred and ninety four, which corresponds to 15.2.1938. However, while converting the date from Vikrami Samvat, it was entered in the record as 16.1.1936 though it corresponds to 15.2.1938. On this basis, his entry in the Middle School register showed his date of birth as 15.2.1938. The applicant learnt about the wrong entry and when he learnt that he was to retire in June, 1994, he made representation, dated 12.8.1992, for correction of his date of birth, which representation was rejected on 25.2.1993. The respondent filed an Original Application before the ld. SAT, which, vide its order, dated 26.6.1993, directed the State Government to treat the same as representation and decide the representation within a period of four months. The representation was decided by the State Government as against the respondent, vide its order, dated 11.1.1994. Thereafter, the respondent filed the Original Application before the ld. SAT, which allowed it and directed correction of the date of birth leading to the filing of the present writ petition by the State of Himachal Pradesh. We have heard the learned Advocate General for the petitioner/State and the learned counsel for the respondent. The submissions made by the learned Advocate General for the petitioner were that the respondent filed first representation in 1992 though he had joined the service in 1958. It was submitted that according to the rules, the application for correction of the birth entry should have been filed within two years of joining of the service, but, as the respondent did not avail the said remedy and filed the application only two years prior to his retirement, therefore, the application could not have been allowed by the learned SAT. Thus, it was submitted that the present writ petition deserves to be allowed. On the other hand, the submissions made by the learned counsel for the respondent were that the conversion was wrongly done due to no fault of the respondent and when he learnt about the wrong conversion of date from Vikrami Samvat, he filed the application, which was rightly allowed by the ld. SAT. The main question to be considered is as to whether the application for correction of the birth entry could have been considered by the ld. SAT under Section 19 of the Administrative Tribunals Act at the fag end of the career of the respondent or not, when he was due to retire in 1992. The relevant dates have been mentioned above, but these are being reproduced below to appreciate the points in a proper manner: 1. Date of joining service: 2.1.1958 2. Date of representation: 12.8.1992 3. Date of rejection of representation by the State: 25.2.1993 4. Date of filing of first Original Application: 17.6.1993. 5. Order passed by the learned Tribunal for treating the OA as representation: 26.6.1993. 6. Impugned order passed by the learned Tribunal: 8.12.2006. During the course of arguments, our attention has been drawn to Annexure R-1, which is a copy of the notification issued by the State Government. The relevant Rule is 7.1(d) of H.P. Financial Rules, which reads as under: “(d) (1) In regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Govt. service, shall as against the Govt. servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Govt. service. Govt., however, reserves the right to make a correction in the recorded age of the Govt. servant at any time against the interest of that Govt. servant when it is satisfied that the age recorded in his service book or in the history of services of a gazetted Govt. servant is incorrect and has been incorrectly recorded with the object that the Govt. servant may derive some unfair advantage therefrom.” The learned counsel for the respondent had relied upon the decision in Union of India vs. C.Rama Swamy and others, (1997) 4 Supreme Court Cases 647. In that case, Rule 16-A of All India Services Rules 1958 was referred to, which provided that every member of the service holding office immediately before the commencement of All India Services (Death-cum- Retirement Benefits) Amendment Rules, 1971 shall within three months from such commencement make a declaration as to the date of his birth. On receipt of the declaration, the Central Government shall, after making such inquiry as it may deem fit with regard to the declaration and after considering such evidence, if any, as may be adduced in support of the said declaration, make an order within four months from the date of such declaration determining the date of birth of such member. Rule 16-A(5) further provided that if no such declaration was made, the Central Government shall take a decision after giving a reasonable opportunity to the government servant of being heard. In considering these provisions, the Supreme Court had observed in para 18 of the judgment that no request for correction of date of birth can be entertained from persons appointed after 4.12.1971 i.e. when the Rules came into force except in case of bona fide clerical error. On the strength of this judgment, the learned counsel for the respondent submitted that since it was a clerical error, it needs correction. We are not going into the question of fact as to whether the date of birth was wrongly calculated in Georgian Calendar from Vikarmi Samvat or not since this is a question of fact, which is not to be decided in this writ petition. However, we will like to refer to other decisions of the Apex Court to consider as to whether an application for correction of date of birth entry can be entertained by the Tribunal or not at the fag end of the career when the employee is due to retire within next two years. The decision in State of T.N. vs. T.V. Venugopalan, (1994) 6 Supreme Court Cases 302, shows that the relevant service of T.N. State and Subordinate Services Rules, 1961 provide that the application for correction of the recorded date of birth could be entertained only if made within five years after entering service. It was observed that the employee should make application for correction within 5 years from the date of enforcement of Rules otherwise he would lose his right to make such an application. It was held that the employee would not be permitted to challenge the entry at the fag end of his service. It was further observed that the remedy of CAT was misused and the indulgence shown by the CAT was misplaced and even costs were awarded to the Government. In that case, the application for correction had been rejected by the Government. After considering various circumstances, it was held that the Administrative Tribunal could not appreciate the evidence to reach at a different conclusion as it was not a court of appeal. The decision in State of U.P. and Another vs. Shiv Narain Upadhaya, JT 2005 (6) SC 444, shows that it was observed by their Lordships that an application for correction of date of birth should not be dealt with by the courts, Tribunal or the High Court keeping in view only the public servant concerned. A person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly important and relevant aspect which cannot be lost sight of by the Court or the Tribunal while examining the grievance of the public servant in regard to correction of his date of birth. The decision in State of U.P. and Others vs. Gulaichi (SMT), (2003) 6 Supreme Court Cases 483, shows that it was observed by the Apex Court that Court should keep in mind that any direction for correction of date of birth of a public servant may adversely affect chances of promotion to junior to him. The period within which the correction can be sought, if prescribed in statutory rules or in absence thereof, under administrative instructions, should be followed and in absence of such rules or instructions, correction should be sought within a reasonable time. After considering the above case law, we are of the opinion that in view of the rules referred to above, which applied to the respondent, the application for correction of the birth entry could not have been entertained by the ld. SAT at such a belated stage when the respondent was due to retire within a period of about two years. It appears that the respondent thought of exercising his right and filed the application for correction of his date of birth entry at a very late stage, though the entries in the record of a government servant made about his date of retirement are quite known to an employee at the time the seniority list is circulated or on such other occasions and, therefore, the application filed by the respondent two years prior to his retirement or the representation made at a belated stage could not have been entertained by the ld. SAT and, therefore, the order passed by the ld. SAT suffers from an illegality and is liable to be set aside. In view of the above discussion, the writ petition filed by the petitioner/State of Himachal Pradesh is liable to be allowed and the impugned order passed by the State Administrative Tribunal is quashed accordingly. Consequences to follow. There is no order as to costs. (Jagdish Bhalla), Chief Justice. (V.K. Ahuja), April 7, 2008. (TILAK) Judge.