IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 10341 of 2008. Decided on: 21st December, 2010. Tulsi Ram. …Petitioner. -Versus- State of H.P. and another. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Subhash Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. J.S. Guleria, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was appointed as Clerk in the respondent- department on 19.07.1973. His date of birth was recorded in his service-book on the basis of Annexures R-II and R-III as 24.04.1946. 2. Mr. Subhash Sharma, learned counsel for the petitioner has strenuously argued that actual date of birth of his client is 1950 and not 24.04.1946. He has relied upon Annexure A-2. He has also argued that on the basis of Annexure A-2, his client could not be retired on 30.04.2004. 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that case of the petitioner for change in date of birth could not be considered at the fag end of his service career. 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. The date of birth of the petitioner as per Annexure R-II is 24.04.1946. This document has been supplied by the petitioner himself. Accordingly, the date of birth of the petitioner was recorded in his service-book and the same was counter- signed by the petitioner. Petitioner has claimed the change in date of birth at the fag end of his service career. Petitioner has to superannuate on 30.04.2004 and for that purpose the requisite documents were prepared as per letter dated 17.11.2003. The application for change in date of birth could not be entertained by the respondent-department belatedly. The procedure prescribed as per para-7.1 of H.P.S.R. is that an incumbent should move an application for change in date of birth within a period of two years from the date of his entry into Government service. 6. Their Lordships of the Hon’ble Supreme Court in State of Haryana Versus Satish Kumar Mittal and another, (2010) 9 Supreme Court Cases, 337 have held that the application for correction of date of birth should be filed within the period prescribed under the Rules. Their Lordships have held as under: “13. Thus, as seen from the above position, the relevant rule always required an application for correction of the date of birth to be submitted within two years from joining the service. The amended Rule of 20.12.2000 made a slight modification that an application filed after two years could be considered which will be only on the recommendation of the Administrative Department. - 3 - This provision has now been removed after the Rules was amended on 13.08.2001. 14. The import of such a provision has been clarified by this Court from time to time. Thus, in para 7 of Home Deptt. V. R. Kirubakran this Court held as follows: (SCC pp. 158-59) “7. An application for correction of date of birth should not be dealt with the tribunal or the High Court keeping in view only the direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions forever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned - 4 - 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 the time, which can be held to be reasonable.” 15. As recorded above, it has been held time and again that the application for correction of date of birth is also to be looked into from the point of view of the department concerned and the employees engaged therein. The other employees have expectations of promotion based on seniority and suddenly if such change is permitted, it causes prejudice and disturbance in the working of the department. It is, therefore, quite correct for the State to insist that such application must be made within the time provided in the rules, say, two years, as in the present case. 16. It is also seen that such applications are made very often, almost at the end of the service of the employee or in any case, belatedly. Whatever may be the reason, the fact remains that in the present case, the application was made after some nine years of joining into service. Even assuming that the first respondent came to know in June 2001 that there was an error in his date of birth entered in the matriculation certificate, as claimed by him, he took more than three years to issue the notice under Section 80 CPC and then to file the suit. Whether the suit was time- barred or not, the claim was in any case belated. It has to be filed within the time provided or within a reasonable time and it is not to be entertained merely on the basis of plausible material as held in Kirubakaran. As observed by this Court in State of U.P. V. Shiv Narain Upadhyaya: (SCC p. 54 para 9) - 5 - “9…..As such, unless a clear case on the basis of clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible.” 7. Consequently, in view of the observations made hereinabove, there is no illegality in the action of the respondents of retiring the petitioner on 30.04.2004 and the same could not be faulted with. 8. Accordingly, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge December 21, 2010. (bhupender) - 6 -