Regular Second Appeal No. 2793 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2793 of 1986 Date of decision : March 22, 2010 State of Punjab .....Appellant VERSUS Sohan Singh ....Respondent Present: Ms. Ambika Luthra, AAG, Punjab for the appellant. Mr. Vikram Singh, Advocate for Mr. Manu Bhandari, Advocate for the respondent. **** RANJIT SINGH, J. The State has filed an appeal against the concurrent finding of fact recorded by the trial Court and the First Appellate Court whereby prayer for amendment in the date of birth as made by respondent-plaintiff from 11.08.1922 to 05.07.1925 was allowed. Respondent-plaintiff, Sohan Singh, passed 6th class, which he studied at Primary School, Chauntra District Rawalpinidi, Pakistan. He had migrated to India due to partition in the year 1947. He was appointed as Constable by Senior Superintendent of Police, Patiala. His age was recorded as was apparent and on the basis of medical certificate issued by the Civil Surgeon, Patiala. As per this method, his date of birth was recorded as 11.08.1922. Subsequently, he came to know that his actual date of birth was 05.07.1925 when he got the school record. The respondent-plaintiff accordingly Regular Second Appeal No. 2793 of 1986 2 represented in the year 1978-79 for correction of his date of birth and in support produced the school leaving certificate. His representation was rejected by the DIG, Patiala Range on May 23, 1980 and he was retired from service on the basis of his tentative date of birth entered in service record. The respondent-plaintiff accordingly made a grievance that he was deprived service benefit of about 3 years. The order of retirement as well as the order rejecting his representation was accordingly challenged by him being void and illegal. It was also urged that the order rejecting the representation is a non-speaking order. The respondent-plaintiff pleaded to be retained in service up to July 5, 1983 as per his date of birth. Having served notice under Section 80 CPC, he filed civil suit. In the written statement filed on behalf of the State, the order rejecting his representation was justified. The following issues were framed by the trial Court:- 1. Whether the impugned order dated 23.5.80 is illegal, null and void, etc. as alleged in the Plaint?OPP. 2. Whether the suit of the plaintiff is not within time? 3. Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD 4. Whether the suit of the plaintiff is not maintainable in present form?OPD. 5. Whether the plaintiff did not serve any valid notice under Section 80 CPC as alleged, if so, its effect?OPD. 6. Relief. The parties produced evidence. The civil suit was Regular Second Appeal No. 2793 of 1986 3 decreed against which the State filed an appeal before the First Appellate Court. The Government counsel appearing before the First Appellate Court pressed only one issue i.e. issue No. 1 and accordingly the First Appellate Court confined its discussion on this issue alone. The finding of the trial Court was challenged on the ground that the date of birth in service record of the respondent- plaintiff was recorded on the basis of his own representation and it was accordingly pleaded that the respondent-plaintiff could not be permitted to be turn around and claim the benefit of his own mistake by seeking correction of his date of birth. It was also pleaded that it was incumbent upon the respondent-plaintiff to seek correction of date of birth within a period of 3 years from the joining of service but the respondent-plaintiff had woken up from his slumber while he was on the verge of the retirement. It was noticed by the First Appellate Court that no dispute was raised in regard to the assertion made by the respondent-plaintiff about his correct date of birth being July 5, 1925. In other words, no dispute was raised before the Court about the actual date of birth. The respondent-plaintiff has sought correction of his date of birth on the basis of school leaving certificate Ex. P2. This certificate was obtained by him from Pakistan and was duly authenticated, as per the requirement of Section 78 of the Indian Evidence Act. The oral evidence produced also showed that the respondent-plaintiff had remained a student of Government Primary School, Chauntra, District Rawalpindi, Pakistan. Having considered these aspects raised before the Court, Regular Second Appeal No. 2793 of 1986 4 the Court came to the conclusion that the respondent-plaintiff was not aware about the actual date of birth at the time of entry into service and as such he could not be expected to state his correct date of birth. It was thus observed that there cannot be an estoppel where the plaintiff has been found to be smarting under mistake about his date of birth. It was also noticed that there would be no law, which would forbid correction of the date of birth recorded at the entry stage. In this regard, reference was also made to some of the judgments passed by this Court. Accordingly, the judgment under the appeal was upheld. All this happened in the year 1986. The respondent- plaintiff was to superannuate in the year 1980. On the basis of amended date of birth, he was to remain in service up to July 5, 1983. Long time has elapsed. It appears from the record that the respondent-plaintiff had been retired on the due date. At this stage only, consequence relief of adding his service of 3 years on the basis of amended date of birth is required to be made. There may be a requirement of making some adjustments in his pension, which would now be due to him. The question of law about the right to seek correction of date of birth has been rightly decided by the First Appellate court. The Regular Second Appeal is accordingly dismissed. March 22, 2010 ( RANJIT SINGH ) rts JUDGE