IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 6090 of 2008. Decided on: 16.07.2010. Bharat Chand. …Petitioner. -Versus- State of Himachal Pradesh and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. __________________________________________________________ For the petitioner. : Mr. Harish Dod, Advocate. For the respondents : Mr. R.K. Sharma, Senior Additional Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner joined the Indian Army on 08.08.1956. He was appointed as Peon in the respondent-department on 29.05.1995. His date of birth was recorded as 1st July, 1938 in his service-book. The same was authenticated by him after putting his signatures. The date of birth of the petitioner in the discharge certificate from the Army has been recorded as 1st July, 1938 as per Annexure R-A. The petitioner retired on 30th June, 1998 after completion of 60 years of age. 2. Mr. Harish Dod, learned counsel for the petitioner has strenuously argued that the date of birth of his client was 07.03.1941 and not 01.07.1938 as per Annexure A-1. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has vehemently argued that the petitioner has given his date of birth as 1st July, 1938 at the time of entering in the 1 Whether the reporters of the local papers may be allowed to see the judgment?. Yes. Government service. He then argued that as per Rule 7 of Himachal Pradesh Financial Rules, the petitioner was required to move appropriate application within a period of two years from the date of joining for the correction of date of birth. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. The date of birth of the petitioner has been recorded as 1st July, 1938 in Annexure R-A. In the service-book also, the date of birth of the petitioner was recorded as 1st July, 1938, which was signed by him. Petitioner has moved an application for correction of his date of birth after more than two years of joining his service on 29.05.1995 as Peon. A bare perusal of Rule 7.1(d)(1) makes it abundantly clear that 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. In these circumstances, the application of the petitioner could not be entertained. However, still the matter was looked into as per the reply filed by the respondents and he was informed of the out-come of his representation made in the month of October, 1997. 6. Mr. R.K. Sharma, learned Senior Additional Advocate General has rightly argued that in case the petitioner’s date of birth is taken as 07.03.1941, he could not be enrolled in the Army since he was less than 15 years at that time. 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. However, before parting with the judgment, the respondents are directed to release the retrial/pensionary benefits etc. to the petitioner, if not already released, within a period of four weeks from today. No costs. (Rajiv Sharma) Judge July 16, 2010. (bhupender)