IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.185 of 2004 Reserved on 31.7.2008 Date of decision 21.8.2008 State of H.P. and ors. Petitioners Vs. Karam Singh Respondent Coram: The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioners: Mr. P.M.Negi, Deputy Advocate General. For the respondent: Mr.Dalip Sharma, Advocate. Per R.B.Misra, J. The present petition has been preferred by the State of Himachal Pradesh through the Secretary (Health), Director of Health Services as well as the Chief Medical Officer, Mandi against the order dated 30.10.2002, passed by the Himachal Pradesh Administrative Tribunal (in short called Tribunal) in O.A.No.480 of 1992 preferred by the respondent, seeking correction of his date of birth as 31.3.1935 in place of 11.1.1920 entered in his service record. 2. The brief facts necessary for the adjudication of this petition as claimed by the respondent are that he was enrolled in Indian Army on 1 Whether reporters of local papers are allowed to see the judgment? Yes. 2 15.4.1948 at the age of 14 years. Subsequently, the respondent was transferred to Reserved Forces from Army in 1958 and joined service in Health Department of State of Himachal Pradesh on 20.1.1959. During the national emergency in 1962 the respondent was again called back into Army for active military service and was relieved on 1.11.1962. Thereafter he was transferred to the Reserve Pension Establishment on 17.6.1964 and was finally discharged from the military service on 27.6.1964. 3. As contended by the respondent in his O.A. No.480 of 92 that when steps were being taken to retire him on 31.1.1980, he submitted a representation to the Director Health services State of Himachal Pradesh, followed by a representation in October, 1981 to the Governor followed by an another representation in January, 1984 to the Chief Minister of State of Himachal Pradesh, which however were duly responded. A notice under Section 80 of Code of Civil Procedure was also served to Secretary (Health) on 25.2.1986. When his date of birth was not corrected according to his choice, he ultimately submitted a representation dated 1.8.1986 to the Hon’ble Chief Justice, Himachal Pradesh, which was treated as Civil Writ Petition No.829 of 1986 and subsequently was transferred to State Administrative Tribunal in State called Tribunal and was registered as TA No.19 of 1988, which however, was disposed of on 10.4.1991 with following observations:- “Admittedly, all this record was not placed before the Director of Health services, HP and it would be better and desirable if all this record is placed before the Director of Health Services, H.P., who will consider the case of the petitioner sympathetically. It is therefore, directed that the present petition/application filed by the petitioner be treated as representation to the Director of Health services, H.P. and after affording him an opportunity of being heard, in person, the DHS will decide the representation within a period of four months from today and in case the decision of the DHS is adverse to the petitioner, the same shall be supported by 3 reasons and the petitioner will be at liberty to approach this Tribunal for the redressal of his grievance. The petition is accordingly disposed of”. 4. In reference to the above observations, the representation of the respondent was considered by Director, Health services and was rejected with following observations: “He (applicant) stated that as per Lower Middle School, Baldwara, District Mandi his correct date of birth is 31.3.1935, stressing his point from the certificate issued from concerned Patwari and Gram Panchayat, Patrighat, Tehsil Sarkaghat, District Mandi. He stated that as per discharge certificate from military service, his date of enrolment is 15.4.1948 and date of discharge 27.6.1964, age at the time of enrolment was 14 years, but did not furnish any written documents in support thereof and perusal of the documents supplied by Shri Karam Singh, it is evident that there are numerous over writings on the date of birth and it is not beyond any shadow of doubt that the material furnished and reliance placed are full of cuttings and one may easily go to conclude that the proof put forth is doubtful.” 5. In support of the claim for correction of date of birth in O.A. No.480 of 1992, the respondent has furnished an undated document issued from Dogra Regiment, Abhilekh Karyalaya; as a substitute document in place of the lost discharge certificate which bears no date, however this document indicates that the respondent was enrolled in Army at the age of 14 years having his height as 5’X6 ¾” and was discharged from there on 27.6.1964. Respondent also relied upon a certificate issued by the Headmaster, Lower Middle School, Baldwara and other document, namely, Certificate of Patwari and Gram Panchayat, Patrighat, Tehsil Sarkaghat, showing his date of birth as 18.1.1991 (Vikrami) corresponding to 31.3.1935 ( in Christian Era). It appears that the Tribunal directed the petitioner to produce original records. However, the original establishment 4 register of district Mandi, copy of the confirmation order dated 31.5.1966 in addition to other records were made available, but relying on the photostat copy of the discharge certificate of respondent from Army, learned Tribunal has ascertained his age as 14 years at the time of his enrolment in Army and accordingly assessed his birth to have taken place in the year 1934 and treating the army discharge certificate as an authentic document as a proof of date of birth of respondent, considering the provisions of Rule 7.1 contained in Chapter VII of the H.P. Financial Rules, 1971 Vol. I, the learned Tribunal has directed the date of birth of the respondent to be treated as 16.4.1934 and has passed the following observations in the impugned order dated 30.10.2002:- “5. In the case of Ex-army man discharge certificate is the authentic document which gives the date of birth of an ex serviceman. The only ground taken by respondent No.2 in rejecting the representation as per Annexure A-2, is that the discharge certificate produced had “numerous over writings on the date of birth and it is not beyond any shadow of doubt that the material furnished and reliance placed are full of cuttings”. The photo copy of the discharge certificate available in the record and the copy of the discharge certificate as per Annexure A-3 are exactly identical as mentioned earlier and neither the photo copy placed with the record nor the typed copy annexed as Annexure A-3, have any cutting. As to why the applicant’s original record is not available has not been explained and it has also not been explained as to why the record which has been maintained has only the photo copy of the discharge certificate. It has also not been pleaded by the learned counsel for the respondents that the record has been destroyed. In fact the record could not have been destroyed due to pendency of his original application. In the case of civil employees, it is the service book of an official which bears the first entry of the date of birth duly attested/verified by the official. This service book has not been produced. Vide Annexure A-2 which has been passed in compliance to the order of this Tribunal passed in TA 19/1988 on 10.4.1991, it has been mentioned that the discharge certificate has 5 many cuttings. Though the photo copy of this discharge certificate has no cuttings as discussed above but if it were so, the respondents could have made reference to the Army authorities and could have obtained authenticated copy of the discharge certificate, which they have failed to do. It has not been explained as to why the respondents have not taken care to comply with the order passed by the Tribunal on April 10, 1991 in its true spirit and not taken a step to get authentic copy of the discharge certificate from the military authorities. The objection that there are many cuttings on the discharge certificate has not been proved. Obviously, Annexure A-2 has been passed with the biased mind and as such this original application deserves to be accepted. "8. Thus, in the case of an ex serviceman on re-employment in a civil department, the date of birth should be as given at the time of attestation. The word attestation has not been explained nor could the learned Additional Advocate General give any further explanation about it. It seems it refers to the date of birth as recorded at the time of official’s entry in Army service. In any case, Discharge Certificate, in the case of an ex-serviceman is an important document which cannot be ignored. In the present case according to the discharge certificate the applicant was 14 years old on April 15,1948 i.e. his approximate date of birth is April 1934, therefore, the date of birth of the applicant according to the above provisions could be taken as 16th of April, 1934 in terms of the above provisions. Therefore, respondents are now directed to take the date of birth of the applicant as April 16,1934 and retire the applicant on superannuation on that basis. The applicant will be entitled to full pay and allowances and other consequential benefits for the period between 1st of April, 1980 to the date of his superannuation arrived at by taking the date of birth of the applicant as April 16, 1934. The respondents are directed to implement this order in letter and spirit within a period of three months from today and release all the financial benefits to the applicant within this period. No order as to costs”. 6 6. From the perusal of the record it reveals that the respondent joined service as Class IV employee in the Department of Health State of H.P. on January 20,1959 and respondent got his date of birth recorded as January 11, 1920 and has duly verified the same and had also put his signature in the service book which was verified by the competent authority. 7. The original service book and personal service record of the respondent, untraceable earlier, were ultimately traced out at Directorate level on 9.6.2003 by the Chief Medical Officer, Mandi. The original and authenticated record was also obtained from the Army and also from the school and Gram Panchayat concerned with regard to the date of birth of the respondent. 8. These documents though could not be produced at relevant time before learned Tribunal despite the fact that learned Tribunal was expecting these documents, however, these are relevant documents procured from relevant places and authorities uncontroverted by any one before us by any body, are necessary to be considered at this stage as the learned Tribunal has been abolished in the State of H.P. as such the OA No.480 of 1992 cannot at this stage be relegated back for consideration of these documents only. 9. The said documents reveal that at the first page of the service book of the respondent, the date of birth has been entered as 11.1.1920, which was duly verified by the respondent as well as by the competent authority. As per record of the Military authority issued on 13.3.2003 by Dogra Regiment Abhilekh Karyalaya, the respondent is shown to have been enrolled in the military on 15.4.1948 at the age of 18 years and date of birth of the respondent was shown as15.4.1930 and the respondent was said to have been discharged on 27.6.1964. 7 10. The learned Tribunal has while giving relief to the respondent by the impugned order dated 30.10.2002 has observed as per paragraphs 5 and 9 of the impugned judgment as indicated above. 11. As submitted for and on behalf of the petitioner/State and authorities that the respondent has approached for correction of date of birth not at the fag end of his career but after his superannuation and has not approached within two years of his entry into service for correction of date of birth in view of the provisions of Rule 7.1 contained in Chapter VII of Volume 1 of the H.P. Financial Rules, 1971. As submitted for and on behalf of the petitioners there is apparent discrepancy in the substituted certificate ( in lieu of loss of actual discharge certificate) enclosed by the respondent with his O.A., in comparison to the certificate obtained by the petitioners from Dogra Regiment. According to former the respondent was shown to have entered in military on 15.4.1948 at the age of 14 years having his height of 5’ X 6 ¾”, whereas, as per later certificate issued by Dogra Regiment Abhilekh Karyalaya vide letter dated 13.3.2003 (showing the date of discharge of the respondent from the military was 27.6.1964) and age of respondent at the time of entry in Army was shown 18 years treating his date of birth as 15.4.1930. These two sets of documents issued by the Dogra Regiment i.e. one at the instance of the respondent and the other obtained by petitioners are apparently are contradicting each other. The height of 5’ 6¾” was mentioned in substitute discharge certificate obtained by the respondent, whereas, no such height was mentioned in the Dogra Regiment certificate dated 13.3.2003 procured by the petitioners; whereas on the first page of service book respondent’s height was shown as 5’X8”. It has been argued on behalf of the petitioners that the respondent’s date of birth is disputed question of fact and the records furnished by him is shrouded with suspicion, whereas, the first page of the photo state copy of the service book record of the petitioner 8 reveals that the date of birth is 11.1.1920 which has been duly verified by the respondent himself as well as by the competent authority, i.e. the Chief Medical Officer, In-charge, Civil Hospital, Mandi. One scar mark of 1” circular on the left knee has also been mentioned in the service record of the respondent. The respondent has never approached the authorities for modification or alteration of his date of birth before his retirement on 31.1.1980. 12. In order to adjudicate upon the issue in question, it is relevant to refer Rule 7.1 contained in Chapter VII of the H.P. Financial Rules, 1971 Vol. I and the same is as under : ‘7.1, Every person newly appointed to a service or a post under Government should at the time at appointment declare the date of his birth by the Christian era with confirmatory evidence as far as possible. Confirmatory documentary evidence such as matriculation certificate, municipal birth certificate and so on. If the exact date is not known an approximate date may be given. The actual date or the assumed date determined under note 1 below should be recorded in the history of service book or any other record that may be kept in respect of the Government servant’s service under Government and once recorded, it cannot be altered except in the case of a clerical error, without the previous orders of Government. Note1-.(a) If a Government servant is unable to state his exact date of birth but can state the year, or year and month of birth, 1st July or the 16th of the month, respectively, may be treated as the date of his birth. (b) If a Government servant is only able to state his approximate age, his date of birth may be assumed to be the corresponding date after deducting the number of year representing his age from his date of appointment. (c) When a Government servant who first entered military employ is subsequently employed in a civil department the date of birth for civil employment should be the date stated by him at the time of attestation or if at the time of attestation he stated only his age the date of birth should be deducted with reference to 9 that age according to the method indicated in sub para (b) above. (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 Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of services of a gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom. (2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an enquiry shall be made to ascertain his correct age and reference shall be made to all available sources of information such as certified copies of entries in the Municipal birth register. University or School age certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate is available, the date of birth recorded in the certificate will be deemed to be the correct age. (3) The result of every such inquiry should in the case of Gazetted/Non Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should be reported to the Accountant General. 13. It appears from the above provisions of Rule 7.1 that the date of birth declared by the employee and as recorded in the service record 10 while entering in service shall be conclusive unless he applies for correction of his date of birth within two years from the date of his entry into government service and it would be prerogative of State Government to make correction of date of birth/age of government servant after being satisfied that the date of birth and age recorded in his service book is incorrect. 14. It is necessary to analyze previous decisions of different courts as well as Supreme Court from time to time. In Bimlesh Sharma v. Electricity Board, office of the Chief Engineer, U.P.Rajya Vidyut Parishad, Moradabad and others, (2003)1 UP LBEC 280, where date of birth entered in the service book was to be changed by the wife of the deceased employee when the husband of the writ petitioner had died after retirement by disputing the change of date of birth, the Court has held disputed question of fact cannot be investigated in the writ petition and the date of birth once entered in the service book of the petitioner under U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974, was treated to be correct supported by the relevant documents and supporting entries in the service book and the change of the date of birth disputing the same on the basis of fitness certificate wee not treated to be relevant proof of age and such controversy and disputed question of fact could not be resolved by the investigating the authenticity of the documents relied upon by the parties concerned in the writ proceedings. 15. In the case of Burn Standard Co. Ltd. v. Dinabandhu Majumdar & anr., AIR 1995 SC 1499 (4) SCC 172, it was held that the employee of a public sector undertaking whose date of birth was entered in service book and leave record on the basis of the voluntary declaration made by the employee at the time of appointment and authenticated by him was never objected to up to the fag end of service, thereafter he sought for correction of date of birth about two years before his superannuation, 11 when his prayer was refused, he moved the High Court in the writ petition, where relief was granted in his favour, however, the Supreme Court in appeal by special leave has held that ordinarily the High court should not exercise its discretion in writ jurisdiction and entertain a writ petition filed by an employee of the Government or any instrumentality of State towards the fag end of his service, seeking correction of his date of birth entered in his service record or service register with the avowed object of continuing in service beyond the consequential period of retirement. 16. In case of State of Orissa and others v. Ramnath Patnaik, AIR 1997 SC 2452, the Supreme Court has observed in para 4 “when entry was made in 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.” As such in view of decision in Ramnath Patniak(Supra) an employee cannot be permitted to seek correction of his date of birth after his retirement.” 17. In Hindustan Lever Limited v. S.M.Jadhav and another, AIR 2001 SC 1666, the Supreme Court has specifically observed that at fag end of career a party cannot be allowed to raise a dispute regarding his date of birth. 18. In the case of G.M. Bharat Coking Coal Limited, West Bengal v. Shib Kumar Dushad and others, (2000)8 SCC 696, the Supreme Court has held that “no dispute regarding correction of date of birth shall be permitted to be raised after long time of his joining service unless there is some typographical or arithmetical error apparent on the face of the record and production of certificate by employee, showing his date of birth different to that entered in his service record and claim for change of date of birth is a disputed question of fact and High Court should not undertake an inquire into such question in exercise of its jurisdiction under Article 226 of the Constitution. 12 19. The Supreme Court has also taken a view earlier that if sufficient grounds exist, an inquiry can be held into the correctness of the date of birth recorded in the service register in view of the R.S.Kalolimath v. State of Mysore, (1978) 1 SCR 145; AIR 1977 SC 1980 however, such an inquiry must conform to the rules of natural justice and the employee must have an adequate opportunity to set up his defence as has been held by the Supreme Court in State of Orissa v. Binapani Dei. Similar view was also in Sarjoo Prasad v. General Manager, (1981) 3 SCR 544: AIR 1981 SC 1481 20. The change of the date of birth of an employee involves civil consequences. Such an order to the prejudice of the employee can be made only after an inquiry is made in which the employee is given adequate opportunity to set up his defence and to correct or controvert the evidence which is being relied upon against him. If a unilateral determination of the age of the employee is made to the prejudice of the employee, such an order is likely to be quashed by the Courts of law. It is no defence to say that the order made is in exercise of administrative power. {State of Orissa v. Binapani Dei, (supra). 21. In view of decision in Bhupendra Nath Chatterjee v. State of Bihar & ors., AIR 1977 SC 746, the date of birth recorded in service record is to govern the date of superannuation of the person from service. 22. In the matter of correction of date of birth, an application for the purpose is to be filed, according to the procedure prescribed within the time under rules or if no rule is prescribed; such application should be made within reasonable time. The court or the tribunal must therefore be slow in granting an interim relief for consideration in