Civil Writ Petition No. 12011 of 2009. ::-1-:: IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. 12011 of 2009. [O&M] Date of Decision: 22rd January, 2010. R.K.Jangra Petitioner through Mr. G.S.Sandhawalia, Advocate Versus State of Punjab & Ors. Respondents through Mr. B.S.Chahal, DAG, Punjab. CORAM: HON'BLE MR. JUSTICE SURYA KANT. 1. Whether Reporters of local papers 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? SURYA KANT, J. In this Civil Writ Petition, the petitioner seeks quashing of the order dated 08/20.07.2009 [Annexure P-37] whereby the Government of Punjab has turned down the petitioner's request for change in his date of birth from 04.01.1952 to 03.01.1953. [2]. The uncontroverted facts are that the petitioner passed his Higher Secondary [Part-I] Examination from the Punjab University, Chandigarh on 19.07.1969 [Annexure P-1] and in the certificate his date of birth is mentioned as “4.1.1952”. The petitioner thereafter completed his degree in Engineering and was appointed on 12.1.1980 as Assistant Engineer in the Department of Irrigation on the recommendations of the Punjab Public Service Commission. At the time of his entry into service, the petitioner gave his date of birth as 4.1.1952 which was duly recorded in his Service Book. [3]. After his appointment, the petitioner is claimed to have applied/represented to the Department on 23.11.1982 [Annexure P- 2A], 8.5.1987 [Annexure P-3] and again on 30.6.1989 [Annexure P-4] Civil Writ Petition No. 12011 of 2009. ::-2-:: for correction of his date of birth from 4.1.1952 to 3.1.1953 for the reason that his mother had, allegedly being illiterate, given wrong date of his birth at the time of admission in the school and that as per the certificate dated 19.8.1981 issued by the Additional Registrar, Births and Deaths, Jalandhar his correct date of birth was 3.1.1953. [4]. Pursuant to the application dated 18.8.1989 [Annexure P7], the then Chief Engineer, Irrigation Works, Punjab is stated to have advised the petitioner vide Memo dated 13.9.1989 [Annexure P8] that should the petitioner got his date of birth changed in the Matriculation Certificate and submit the original certificate to the Department. The petitioner thereafter applied to the Registrar, Panjab University, Chandigarh for correction of his date of birth and after a long correspondence through proper channel, the petitioner was able to get his application forwarded to the Chief Engineer [Canals], Irrigation Works, Punjab, who objected to the petitioner's request vide Memo dated 26.10.1993 [Annexure P-17] on the premise that correction in the date of birth of could be sought or made within two years of his appointment as provided in Rule 2.5 of the Punjab Civil Services Rules, Volume 1 Part-I. [5]. The petitioner thereafter again represented and explained to the Chief Engineer [Canals] that there is no infringement of Rule 2.5 ibid as he had applied for correction of the date of his birth within two years of his appointment, vide Annexure P2-A. [6]. Be that as it may, when the petitioner was engrossed in a long correspondence with the Chief Engineer, Irrigation Department, the Government of Punjab through the Department of Finance, amended Rule 2.5 of the Punjab Civil Services Rules, Volume I, Part Civil Writ Petition No. 12011 of 2009. ::-3-:: I vide notification dat4ed 21.06.1994 [Annexure P-19] whereby the existing Note-I, Note-III and Paragraph-I of Chapter-II thereof were substituted as follows:- “[i] Note – 1 – Every person newly appointed to a service or a post under Government should at the time of appointment, be asked to produce birth certificate issued by the Registrar, Births and Deaths, and, in the absence of such a certificate, he should furnish either an attested copy of Matriculation Certificate or an affidavit in proof of correctness of the date of birth. The actual date or the assumed date determined under Note-2 below should be recorded in the history of service, Service Book, or any other record that may be kept in respect of the Government Employees' service under Government and once recorded, it can not be altered except in the case of a clerical error, without the previous orders of Government [see also Annexure “A” to this Chapter]. Note 3 – The date of birth given by an employee in his application form, submitted to a recruiting agency, viz, the Punjab Public Service Commission or the Punjab Subordinate Services Selection Board or the Departmental Selection Committee as the case may be, shall be treated as final and no change in it shall be allowed after entry into Government service. Paragraph 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 employee in question, be deemed to be conclusive. The 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 I, Part I, 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 Civil Writ Petition No. 12011 of 2009. ::-4-:: Certificate etc. No request for the change of date of birth shall be entertained after the expiry of the said period of two years. The 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”.[Emphasis applied]. [7]. The objection of 'delay' raised by the Chief Engineer [Canals], thus, was rendered redundant for the obvious reason that as per the amended Rules, the employees already in service of the Government of Punjab were permitted to seek change of date of their birth within a period of two years from the date the Amended Rules came into force. This fact was duly clarified by the State Government vide Executive Instructions dated 10.05.1995 [Annexure P-21] also which said that “the intention of this notification was that the affected employees, who had not approached the Government earlier for change of date of birth, should be provided an opportunity and ample time to get the same corrected”. The instructions further clarify that “the date of birth of any Government employee should not be changed without holding a special inquiry ......” . [8]. The claim of the petitioner for correction of the date of his birth was thereafter considered and rejected by the State Government vide Memo dated 18.12.1995 [Annexure P-22]. [9]. Though the Government did not accede to his request, nevertheless the petitioner sent another representation to the Chief Civil Writ Petition No. 12011 of 2009. ::-5-:: Engineer [Canals], Punjab on 10.4.1996 [Annexure P-23] asserting that the birth certificate produced by him was not got verified by the Government and that the matter required reconsideration. Pursuant thereto, the Chief Engineer [Canals], Punjab, vide memo dated 21.4.1997 [Annexure P-24] sought the following information from the petitioner:- “[a] Medical Fitness Certificate submitted at the time of reporting for his appointment by the Officer. [b] Complete details of the brothers and sisters [live or dead] of the officer including their birth certificates/school/Board Certificates etc. [c] Explanation from the officer as to why he did not give this information regarding this matter earlier at the time of his appointment”. [10]. The petitioner did furnish the information sought by the Chief Engineer [Canals] and meanwhile, he also continued his correspondence with the Panjab University for correction of his date of birth in the Matriculation Certificate. The Panjab University, Chandigarh vide Memo dated 06.02.2002 [Annexure P-30] appears to have turned down the petitioner's application as “infructuous” for the reason that the Senate of the University in its meeting held on 27.1.2001 had abrogated the Rules regarding correction of the date of birth. [11]. The petitioner thereafter had yet another long correspondence with the Chief Engineer [Canals] and the State Government and his relentless and tireless efforts yielded some fruits when the State Government, vide its Memo dated 30.8.2007 [Annexure P-36] asked the Deputy Commissioner, Nawanshahr to Civil Writ Petition No. 12011 of 2009. ::-6-:: inform as to whether or not he had held an inquiry regarding the birth certificate relied upon by the petitioner as information in this regard had been sought under the Right to Information Act. Realizing that no such inquiry was conducted, the Deputy Commissioner, Nawanshahr vide his Memo dated 06.11.2007 [Annexure P36/A] sent the following report which is being heavily relied by the petitioner:- “Documents received vide above referred letters were got verified from Civil Surgeon – cum – District Registrar, Births and Deaths, Nawanshahr. They have written through their report that the photo copies of certificate which were sent, have been verified and are correct as per record. Further they have written that the correction can not be done in the birth certificate as per school certificate and service book. Report is sent for further necessary action”. [12]. On the strength of the above-reproduced report, the petitioner approached this Court by way of CWP No. 1333 of 2007 seeking a Mandamus to direct the respondents to change his date of birth. A Division Bench of this Court vide order dated 29.1.2007 [Annexure P-37] disposed of the writ petition by relegating the petitioner to avail his remedy before a Civil Court. [13]. Aggrieved, the petitioner approached the Hon'ble Supreme Court and while allowing his Civil Appeal No. 1615 of 2009 vide order dated 16.03.2009 [Annexure P-38], their Lordships took notice of the fact that though the petitioner has been attempting right from the year 1981 but on account of the bureaucratic inaction no final decision had been taken by the State Government regarding making of appropriate correction in his date of birth in the Service Record. The Principal Secretary, Department of Irrigation, Punjab Civil Writ Petition No. 12011 of 2009. ::-7-:: was accordingly directed to consider the representation dated 8.5.1987 filed by the petitioner “in the light of the documents and material produced by him within a month .......”.It was further directed that in case the afore-stated representation is not available, the Competent Authority shall call upon the petitioner to furnish fresh representation and dispose of the same accordingly. [14]. In compliance to the directions issued by the Apex Court, the Principal Secretary, Government of Punjab has considered the whole matter and after affording opportunities of personal hearing on 8.4.2009, 15.4.2009, 29.6.2009 and 8.7.2009, has turned down the petitioner's request for change of date of his birth in the Service Record vide the impugned order dated 8/20.7.2009 [Annexure P-39]. [15]. Still aggrieved, the petitioner has approached this Court. [16]. Notice of motion was issued and in response thereto, the respondents have filed their counter-affidavits and the petitioner has also filed rejoinder thereto. I have heard learned counsel for the parties at some length and perused the records. [17]. In my considered view, no interference in the impugned order is called for by this Court, in exercise of its writ jurisdiction. The petitioner while seeking change of date of his birth in the service record is harping upon two documents. Firstly, he relies upon a birth certificate dated 19.8.1981 [Annexure P-2] issued by the Registrar, Births and Deaths, Jalandhar, according to which a male child, named Janak Raj was born on 3.1.1953 in village Mirpur Jattan and the names of his mother and father were “Parkash” and “Joginder”, respectively. It is the conceded fact that throughout in the school or at Higher Education level, the name of the petitioner was recorded as Civil Writ Petition No. 12011 of 2009. ::-8-:: Raj Kumar Jhangra only and not “Janak Raj”. It may be noticed here that the originally given date of birth of the petitioner is 4.1.1952, whereas the date of birth mentioned in the certificate relied upon by him is 3.1.1953, i.e., reflecting a gap of one year. The birth of a second child within this period may be unusual but not impossible. The said certificate, therefore, can not be relied as a conclusive and impeccable piece of evidence to hold that it pertains to the petitioner only. [18]. The second document relied upon by the petitioner is a report dated 6.11.2007 given by the Deputy Commissioner, Nawanshahr, already reproduced in Para 11 of this order. From a plain reading of the said report it is apparent that the birth certificate, photo copy of which was sent to the Deputy Commissioner for verification, was found to be correct as per the record maintained by the Registrar of Births and Deaths. In other words, the report simply certifies the genuineness of the birth certificate dated 19.8.1981, namely, it was not a forged or fabricated document. The said report no where suggests that the date of birth mentioned in the subject- certificate pertains to the petitioner's birth. [19]. In addition, the respondents have categorically averred that the petitioner was required to seek correction in the date of his birth within two years of his entry into Government service as per un- amended Rule 2.5 of the Punjab Civil Services Rules. The petitioner's own case is that he joined the government service on 12.11.1980 and that he applied for change in date of birth on 23.11.1982 [vide Annexure P-2A], i.e., after expiry of the maximum period prescribed under the statutory Rules. Be that as it may, after Civil Writ Petition No. 12011 of 2009. ::-9-:: the amended Rule 2.5 ibid came into force, the State Government gave another opportunity to the serving government employees to seek change in the date of birth, if so required. The petitioner was well within his right to apply for the same. But his application was considered and rejected by the State Government vide order dated 18.12.1995/15.1.1996 [Annexure P-22]. It may be true that the petitioner's request was declined by passing a cryptic order which assigned no reason whatsoever. This could, however, be a valid ground for the petitioner to assail that order before an appropriate Forum within a reasonable period. Once the petitioner's claim was turned down by the Competent Authority, even if erroneously, the subsequent successive representations made by him did not revive his cause of action. [20]. The reluctance of the Courts in commanding the State Government/Competent Authority to change the date of birth of an employee and that too at a belated stage, is acknowledged in a catena of decisions. [21]. In Union of India v Harnam Singh [1993] 2 SCC, 162, the Supreme Court ruled that description of five years period in Note 5 of FR 56, for those who are already in government service prior to 1979 to seek correction in the date of birth, was fair and reasonable. The claim of the employee was turned down in view of unexplained and inordinate delay; In State of T.N. V T.V.Venugopalan [1994] 6 SCC, 302, it was held that once the date of birth has been recorded while entering into service and is duly counter-signed by the government servant, ordinarily he should not be permitted to change such entry; In Union of India v Kantilal Hematram Pandya [1995] 3 Civil Writ Petition No. 12011 of 2009. ::-10-:: SCC, 17, the Supreme Court held that where there is unexplained and inordinate delay in seeking correction in the date of birth, the judicial interference should be made sparingly and with circumspection; In Burn Standard Co. Ltd. V Dinabandhu Majumdar [1995] 4 SCC, 172, it was held that where an employee of the Government or its instrumentality voluntarily makes a declaration of his date of birth at the time of entry into service and when such date of birth is duly authenticated by him, the High Court should not ordinarily, in exercise of its discretionary writ jurisdiction, entertain a writ petition filed by such an employee seeking correction of his date of birth; In Chief Medical Officer v Khadeer Khadri [1995] 2 SCC, 82 it was held that where an employee seeks correction in date of birth beyond the statutory time limit, prescribed under the Rules, his application is liable to be rejected; In Board of Secondary Education of Assam v Mohd. Sarifuz Zaman [2003] 12 SCC, 408 the prescription of three years' period under Regulation 8 of the Service Regulations for applying to seek correction in the date of birth was upheld being reasonable. It was further held that if an employee seeks correction of the date of birth after the expiry of the period of limitation prescribed under the Rules, his claim is liable to be rejected on both counts as the delay defeats discretion and loss of limitation destroys the remedy itself; In State of Punjab v S.C.Chadha [2004] 3 SCC, 394 a direction issued by this Court regarding correction in date of birth was set aside by the Apex Court, holding as follows:- “Before any such direction is issued or declaration made, the Court or the Tribunal must be fully satisfied that there has been real injustice to the Civil Writ Petition No. 12011 of 2009. ::-11-:: person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording to his date of birth, in his service book”. [22]. Reliance placed by counsel for the petitioner upon a recent decision of the Hon'ble Supreme Court in Desh Raj v Bodh Raj [2008] 2 SCC, 186 is wholly misconceived as it was in the context of an election related dispute that their Lordships attached more evidentiary value to the birth certificate as compared to the entries in the Admission and Withdrawal Register of the Government School. Similarly, the decision in Mohd. Yunus Khan v U.P.Power Corporation Limited & Ors. [2009] 1 SCC, 80 also does not come to the rescue of the petitioner for the reason that therein no time limit was prescribed under the Service Rules for seeking correction of entry of date of birth in the Service Record. [23]. For the reasons afore-stated, I do not find any merit in this writ petition which is dismissed with costs of Rs.5000/-. January 22, 2010. ( SURYA KANT ) dinesh JUDGE