IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 5061/2009 Decided on:30.4.2010 _____________________________________________ Sulochana Gupta. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. K.B. Khajuria, Advocate vice Mr. Ravi Bakshi, Advocate. For the Respondents: Mr. Anil Jaswal, Deputy Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner was appointed Trained Graduate Teacher on 20.9.1965. She recorded her date of birth at the time of her appointment as 4.5.1941. She made a representation to the Secretary (Education) dated 15.12.1993 seeking change in date of birth from 4.5.1941 to 20.10.1942. It was rejected on 21.2.1994. Her husband made a fresh representation to the Chief Secretary to the Government of Himachal Pradesh on 27.3.1995 seeking change in date of birth of his wife from 4.5.1941 to 20.10.1942. A 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 notice under section 80 of the Code of Civil Procedure was also served upon the Secretary (Education), Government of Himachal Pradesh on 16.1.1998. Mr. K.B. Khajuria has assailed the decision dated 21.2.1994 whereby the case of the petitioner was rejected for the alteration of date of birth from 4.5.1941 to 20.10.1942. He also contended that rule 7 (d) (1) of the Himachal Pradesh Financial Rule, 1971 is ultra vires Constitution of India. Mr. Anil Jaswal, learned Deputy Advocate General has strenuously argued that the application preferred by the petitioner was belated and has placed strong reliance upon rule 7 (d) (1) of the Himachal Pradesh Financial Rules, 1971. I have heard the learned counsel for the parties and have perused the pleadings carefully. Petitioner joined as Trained Graduate Teacher on 20.9.1965. She has moved application, for the first time, for correction of her date of birth on 15.12.1993. It will be pertinent to take into consideration rule 7.1 of the Himachal Pradesh Financial Rules, 1971. It reads thus: “7.1. Every person newly appointed to a service or a post under Government should at the time of 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 3 recorded in the history of service, 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. Note 1.- (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 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 in question, be deemed to be conclusive unless he applied for correction of his age as recorded within 2 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 4 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 inquiry 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, NANAMPATRI (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.” It is evident from the language employed in rule 7.1 of the Himachal Pradesh Financial Rules, 1971 that every person newly appointed to a service or a post under Government should at the time of appointment declare the date of his birth by the Christian era with confirmatory evidence. The actual date or the assumed 5 date to be determined under note 1 is recorded in the history of service, 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. Note 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 be deemed to be conclusive unless an employee applies for correction of his age as recorded within two years from the date of his entry into Government service. In the instant case, the petitioner was appointed, as noticed above, on 20.9.1965 and the application, for the first time, for correction of date of birth has been made on 15.12.1993. The application has been filed after a period of 32 years. She is literate person and she always knew about the date of birth recorded at the time of her appointment. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Mrs. Saroj Bala, 1996 (2) SLR 898 have held that the application moved for correction of date of birth after 18 years cannot be entertained. Their Lordships have held as under: “4. We are wholly unable to appreciate the stand of the respondent. The respondent's parents are not illiterate. She is a well educated one, she competed in All India Civil Services Examination. Her date of birth was registered in the University to be April 4, 1949. On that basis, she appeared for the examination, sought selection and accordingly she was selected. The said 6 date has been entered in the service record and remained undisputed for 18 1/2 years, Subsequently it appears that she discovered in a talk with her sister that her date of birth is incorrect. Then enquiries were made and obtained the birth certificate, which mentioned the birth of the child and the parentage of the respondent, Horoscope was also sought to be set up to corroborate those circumstances. 5. It is unthinkable that having been born in an educated family and having remained in service for 18 years she discovered that her date of birth would be wrong. Under these circumstances, the Tribunal was wholly unjustified and obviously illegal in allowing the application and directing correction of the date of birth. Though Mr. Suri sought to bring to our notice that she made her representation in the year 1981, it is of little importance for disposal of the matter on merits.” Mr. K. B. Khajuria has also argued that putting a restriction of two years, within which the date of birth can be altered/changed after the appointment, is arbitrary thus violative of Articles 14 and 16 of the Constitution of India. There is no merit in the contention of Mr. K.B. Khajuria. The purpose of prescribing two years, within which the date of birth can be rectified/altered, is to promote certainty in the affairs of the State. A person, who seeks public employment, as per Himachal Pradesh Financial Rules, 1971, is required to give his date of birth with confirmatory record. The record may be based on school certificate, certificate issued by the University or Registrar Death and Birth, including Panchayat etc. In case the Government servant realizes that his date of birth is not 7 correctly recorded, he can move appropriate application within a period of two years from the date of entry into Government service. No person should be permitted to take unfair and undue advantage by deviating from the date recorded at the time of entry into Government service except as per the procedure laid down in the rules. It is further laid down in sub rule (1) (d) (2) that in case matriculation certificate is available, the date of birth recorded in this certificate will be deemed to be the correct date of birth. In the present case, the petitioner has furnished the matriculation certificate. The age of the petitioner in the service record has been recorded as per matriculation certificate. The date of birth of the petitioner remained undisputed for 32 long years. The order passed by the competent authority on 21.2.1994 is legal and valid. In view of the observations made hereinabove, Rule 7 of the Himachal Pradesh Financial Rules, 1971 is also declared intra vires and the validity of the same is upheld. Consequently, there is no merit in the petition and the same is dismissed. However, there shall be no order as to costs. (Rajiv Sharma), Judge 30.4.2010 *awasthi*