R.S.A.No. 4855 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4855 of 2010 (O&M) Date of decision: 19.5.2011 Charanji Lal ......Appellant Versus Punjab State Cooperative Milk Producer Federation (Milkfed) and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arvind Kashyap, Advocate, for the appellant. **** SABINA, J. The plaintiff had filed a suit for declaration challenging the order dated 1.8.2001, whereby the date of birth of the plaintiff was taken as 17.7.1944 by defendant No.3 and the order of retirement in consequence thereto w.e.f. 31.7.2002. The case of the plaintiff, in brief, was that he had joined the office of defendant No.2 as a Class IV employee on 1.12.1964. The plaintiff had submitted his date of birth as 1.1.1949. In the year 1970, the plaintiff was directed by the officials of defendant No.1 to supply the original copy of school leaving certificate for the purpose R.S.A.No. 4855 of 2010 (O&M) 2 of recording his actual date of birth. In compliance thereto, the plaintiff submitted his school leaving certificate and as per the same his date of birth was 1.1.1949. Initially an entry had been made qua date of birth of the plaintiff by defendant No.3 as 17.7.1944 but thereafter, it was corrected as 1.1.1949, on submission of original school leaving certificate by the plaintiff. However, in the month of June, 1999, plaintiff was directed to supply original school leaving certificate qua his date of birth. In this regard, the plaintiff replied that he had already submitted the original school leaving certificate in the year 1970. On 1.6.2001, the plaintiff was served with a show cause notice that his date of birth was 17.7.1944, whereas, a cutting had been made and his date of birth had been changed to 1.1.1949. The plaintiff was asked to furnish his explanation as to why his date of birth be not considered as 17.7.1944. Plaintiff submitted his reply to the said notice but despite that his date of birth had been changed to 17.7.1944 vide order dated 1.8.2001. On the basis of the same, plaintiff was ordered to be retired w.e.f. 31.7.2002. Defendants, in their written statement, admitted the fact that the plaintiff had joined the service of the defendants on 1.12.1964. It was averred that the plaintiff had given his date of birth as 17.7.1944. In case, it was assumed that date of birth of the plaintiff was 1.1.1949 then he could not have joined the service of the defendants as he would have been 15 years old on 1.12.1964. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP. R.S.A.No. 4855 of 2010 (O&M) 3 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether suit of the plaintiff is legally not maintainable? OPD 4. Whether this court has no jurisdiction to entertain and try the present suit ? OPD 5. Whether the plaintiff has not come to the court with clean hands? OPD 6. Relief.” The trial Court dismissed the suit of the plaintiff vide judgment and decree dated 7.3.2006. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was also dismissed vide judgment and decree dated 11.8.2010 passed by the Additional District Judge. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the date of birth of the plaintiff had been corrected by the defendants in the year 1970 and the same could not be again changed without any basis. In support of his argument, Learned counsel has placed reliance on Union of India and others vs. Harbhajan Singh and another 2009 (3) RSJ 694, wherein, it was held as under:- “12. But we are afraid, even this law cannot be pressed to aid of the petitioner as firstly there is no nexus between age of the respondent and the employment he was taken in, i.e. casual labour. It is not the case of the petitioner that a person under the age of 20 years could not be appointed as casual labour. Secondly, from the perusal of R.S.A.No. 4855 of 2010 (O&M) 4 the date of birth certificate (Annexure A-2), it is clear that the same was issued on 25.6.1965. Thus, it cannot be said by any stretch of imagination that the respondent was in possession of the same on 5.5.1965 (the date of his appointment) and that he held it back only to produce it later on. Moreover, the fact that respondent No.1 was appointed as casual labour even when he did not disclose his qualification itself shows that the said job did not require any qualification. Consequently, it was not obligatory upon the respondent to disclose the fact that his matriculation result/certificate was awaited. Moreover he was prompt enough to produce the said certificate in June, 1965 itself, when it was received by him. The promptness on the part of the respondent is evidence of the fact that he never intended to deceive the petitioner. Had he so intended, he could have digested the fact of receipt of the certificate only to be produced at a later stage, when probably he could not anticipate any danger to his service. 13. Finally, the last stroke which sinks a death nail into the case of the petitioner is the fact that in July, 1966 respondent No.1 was re-designated as Civilian Assistant Store Keeper. As reflected by Annexure A-6 dated 22.11.89, one K.S. Kanwal, Administrative Officer after perusing the service book of respondent No.1 had reported at point (b) that he was re-designated as Civilian Assistant Store Keeper w.e.f. 7.7.1966, on the basis of R.S.A.No. 4855 of 2010 (O&M) 5 his Matriculation Certificate. It is settled law that a document shall either swim or sink as a whole. It is not open for the petitioner to accept the Matriculation Certificate as regards qualification and ignore the same as regards date of birth. Moreover, when in 1965 itself the petitioner became acquainted with the fact that the date of birth of respondent No.1 is infact 15.4.49, instead of proceeding against him they chose to re-designate him in the year 1966. Lastly, it is incredible that as boy of 16 years of age is underage for being employed as casual labour and that the same boy is not underage for being appointed as Civilian Assistant Store Keeper at the age of 17 years.” After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, admittedly, the plaintiff had joined the service of the defendants on 1.12.1964. The plaintiff had given his date of birth as 17.7.1944 at the time of his joining and the same was duly recorded in his service book. However, later there was a cutting in the date of birth of the plaintiff and the same was entered as 1.1.1949. The plaintiff is basing reliance on school leaving certificate to substantiate his plea that his date of birth is 1.1.1949. However, in case date of birth of the plaintiff is taken as 1.1.1949 then he could not have joined the service of the defendants on 1.12.1964 as he was only 15 years old at that time. Both the Courts below, after appreciating the evidence led by the parties on record, have held that R.S.A.No. 4855 of 2010 (O&M) 6 there was no occasion to change the date of birth of the plaintiff from 17.7.1944 to 1.1.1949. The department came to know about the wrong entry qua date of birth of the plaintiff on an audit objection and thereafter, a committee was constituted and an enquiry was made qua actual date of birth of the plaintiff. The plaintiff was given an opportunity of hearing by the committee. The committee gave its report that the age of the plaintiff will be considered as 17.7.1944 for all purposes for his service record. Thereafter, a show cause notice was issued to the plaintiff and he submitted his reply to the same and then the impugned order dated 11.8.2001 was passed. The judgment relied upon by learned counsel fails to advance the case of the appellant as it is based on different facts. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 19, 2011 anita