IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1335 of 2001 Date of decision: 14.08.2008 State of H.P. & Ors. … Petitioners Versus Shiam Lal Sharma … Respondent Coram : The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the Petitioner: Mr. R.M. Bisht and Mr. Rajesh Mandhotra, Deputy Advocate Generals. For the respondent: Mr. Rajnish Maniktala, Advocate. Per V.K. Ahuja, J. : This is a writ petition filed by the State of H.P. under Articles 226/227 of the Constitution of India, for challenging the order passed by the learned Administrative Tribunal on 3.11.2000 in O.A. No. 3054 of 1994, allowing the application filed by the respondent for correction of birth entry. Briefly stated, the facts of the case are that the respondent joined the service of H.P. Government on 16.12.1960 as untrained J.B.T. The date of birth of the respondent was recorded in the matriculation certificate as 7.9.1942 in the service boom. The applicant represented for correction of his date of birth in 1972 before Punjab University alleging that his date of birth was 9.11.1943. The date of birth of the respondent was corrected and a duplicate certificate was issued to 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 the respondent on 24.6.1972. The respondent alleged that he applied for correction of his date of birth in 1972, but his case was rejected vide order dated 13.9.1991. He again filed an appeal/representation to the Secretary(Finance) which was again rejected on 10.11.1994. Thereafter, the respondent filed an application under Section 19 of the H.P. Administrative Tribunals Act before the learned Tribunal, which allowed the application for correction vide its order. We have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned Deputy Advocate General were that the applicant applied at a very belated stage for correction of his birth entry and the said entry could not have been corrected by the learned Tribunal since the applicant did not make the representation within a period of two years as prescribed in H.P. Financial Rules. It was submitted that though the correction was made by the Punjab University in 1972 but the application was filed by the respondent before the learned Tribunal on 4.12.1994, which could not have been entertained by the learned Tribunal since there was nothing on record as to when the respondent applied for correction and when his application was rejected. It was also submitted that even though he may have applied earlier but in case his application was neither accepted or rejected, he should not have waited till the year 1994 to apply for correction and, therefore, the order of correction could not have been made by the learned Tribunal since there was sufficient delay in applying for correction. We may refer to the facts of the case. The respondent joined service on 16.12.1960. He applied for correction of the entry before the learned Tribunal on 4.12.1994. A perusal of the application 3 filed under Section 19 of the H.P. Administrative Tribunals Act by the respondent shows that his applications were rejected by the State on 13.9.1991 and 20.11.1994 but he did not allege that as to when he had made the representation before the Government. In case he had made the representation say after getting the corrected copy in 1972, he should not have waited till 1994 to file an application for correction, once his applications have been rejected in the years 1991 and 1994 as alleged by him. We are not referring to the evidence in regard to the date of birth but we are concerned with the question as to whether the application could have been filed by the respondent after having been in service for about 34 years. A reference can be made to the Himachal Pradesh Financial Rules(Volume I), Rule 7.1, which provides that every newly appointed person is required to declare his date of birth by Christian era with confirmatory evidence at the time of appointment. The said declaration at the time of appointment is deemed to be conclusive unless a person applies for correction of age within two years from his date of entry into the government service. It has been stated at bar by the learned Deputy Advocate General and not controverted by the learned counsel for the respondent that according to these rules, earlier the application could have been filed within a period of five years of joining service and the amendment was made with effect from the year 1991, now the application can be filed within two years from the date of entry into the government service. The applicant had not alleged as to when he made the representation to the Government, though he has simply alleged that he learnt in 1972 about the wrong entry and applied to Punjab University, which corrected the entry in the year 1972. Thus, it is clear that he made representation some time after 1972 but waited till the year 1994 to apply before the 4 learned Tribunal for correction of the entry. In case he had filed the application after 1972, he could have waited for a reasonable period of six months or one year of his application being decided and in case no order was conveyed to him, he could have applied thereafter to the learned Tribunal for correction, which was not done by him. Moreover, the rules as mentioned above applied to a government servant and once the Government has framed the rules that the application can be made within 5 years of joining service and now within two years of joining service, no request for correction normally should have been entered after that period. However, the learned Tribunal not only entertained the application at a belated stage but permitted the correction of the entry ignoring the decisions of the Apex Court in this regard. The learned Deputy Advocate General had referred to some decisions of the Apex Court and this Court, which are as under:- The decision in State of Punjab and Ors. Vs. S.C. Chadha, 2004(2) SLR 741, shows that it was observed by their Lordships that the mere fact that the employees are given one time opportunity to get their dates of birth corrected does not in itself permit overlooking long delay. In the absence of any explanation and unrefutable evidence, the delayed requests must be rejected. It was further held that where no limit is prescribed, request made only within a reasonable time can be entertained. The decision in State of Gujarat & Ors. Vs. Vali Mohmed Dosabhai Sindhi, JT 2006(6) SC 468, shows that the respondent had not taken any action for correcting the date of birth while in service, it was held that he was not entitled to any relief despite production of evidence subsequently. 5 Our attention has been drawn to a judgment of Division Bench of this Court in which one of us was a Member in case State of Himachal Pradesh Vs. Mor Dhawaj, CWP No. 1006 of 2007, decided on 7.4.2008, wherein a reference was made to various decisions of the Apex Court in which it was held that the employee should apply for correction within five years, otherwise he will loose his right to make such application, which observations were made by the Apex Court in State of T.N. Vs. T.V. Venugopalan, (1994) 6 Supreme Court Cases 302. We may refer to another decision of the Apex Court, in which it was observed that any direction for correction adversely affects chances of promotion to juniors also and, therefore, the correction may be sought within a reasonable time. The observations made in State of U.P. and others Vs. Gulaichi (SMT), (2003) 6 Supreme Court Cases 483, may be reproduced as under: “It shows that it was observed by the Apex Court that Court should keep in mind that any direction for correction of date of birth of a public servant may adversely affect chances of promotion to junior to him. The period within which the correction can be sought, if prescribed in statutory rules or in absence thereof, under administrative instructions, should be followed and in absence of such rules or instructions, correction should be sought within a reasonable time.” It was held in that case by the Division Bench that the learned SAT should not have entertained such application at such a belated stage when the respondent was due to retire within a period of about two years. In the present case, we have not been informed about the date of retirement of the respondent since he joined in 1960 he may have retired by this time also. 6 A Division Bench of this Court had also considered this question in Narinder Kumar Vs. Union of India and others, 2007(1) Shim. LC 274. In that case also after referring to the decision of the Apex Court in State of Gujarat & Ors. Vs. Vali Mohmed Dosabhai Sindhi, JT 2006(6) SC 468(supra), it was observed by the Court that such requests must be made within five years of joining service. Request made at the fag end of career, a few years of the retirement, can never be said to be request made within a reasonable time under any circumstances. It has already been held by the Apex Court in some of these decisions that the date of change of birth of an employee not only affects him but affects the persons who are due for promotion and any change made at a belated stage will affect their service prospective. To our mind, once the application has not been made within five years of joining service as per the rules prevalent at that time, no request should have been entertained by the learned Tribunal and, therefore, the order passed by the learned Tribunal cannot be said to be in accordance with law and as such, is liable to be set aside and is accordingly set aside. In view of the discussion, the petition is allowed and the order passed by the learned Tribunal is set aside. There is no order as to costs. ( Deepak Gupta ), Judge August 14, 2008 ( V.K. Ahuja ), (BSS) Judge 7