^\ AMENDED PETITON IN THE HON'BLE HIGH COURT OF CHHATISGARH AT BILASPUR WRIT PETITION ^ No.536 / 2004 PETITIONER r RESPONDENT Benudhar Pradhan S/o Late Mohan Lal Pradhan aged about 59 years, permanent R/o Beleria Post Banora, Tahsil & District Raigarh (C.G.) VERSUS The State of Chhattisgarh through Secretary General Administration Department, D.K.S. Bhawan, Raipur District Raipur (C.G.) • WRTTreTmQN UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH : BILASPUR Writ Petition No. 536 of 2004 Petitioner Benudhar Pradhan Versus Respondents The State of Chhattisgarh ^;^ 4" ^ Post for Judgment and Order on ^_day of January, 2010 ^ Sd/- Satish K. Agnihotri Judge v^ t, HIGH COURT OF CHHATTISGARH : BILASPUR W.P. No. 536 of 2004 Petitioner Benudhar Pradhan Versus Respondents The State of Chhattisgarh WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA (SB: Hon'ble Shri Satish K. Agnihotri J.) Petitioner in person. Shri Yashwant Singh Thakur, Deputy Advocate General for the respondent. JUDGMENT & ORDER (Passed on this J^_'day ofJanuary, 2010) 1. The petitioner, by this petition seeks a direction to the respondents to change his date of birth fn the service record as '24.1.1945' in place of '10.2.1944' and retire him accordingly w.e.f. 31.1.2005. By way of amendment application dated 4.3.2004 (I.A.No. 1553/2004) the petitioner further seeks to challenge the order dated 24.2.2004 (Annexure P/6), whereby the representation of the petitioner for correction in service record was rejected. 2. The brief facts, in nutshell, are that the petitioner was appointed on the post of Naib Tahsildar in the year 1969. The date of birth of the petitioner in the ser^ice record (Annexure P/l) was recorded as 10-2-1944 (Tenth Februaiy Nineteen Hundred Forty Four). While the petitioner was working on the post of Joint Collector, Jashpur the order dated 16th September, 2003 (Annexure P/2) was issued by the State of Chhattisgarh, General Administration Department, Raipur that the petitioner would attain the age of superannuation on 29.2.2004 as per his date of ^^saissSaSaE.aSuai ,,^f^^ ^-\.^-'^ "i^., •% 't ^. .-^ ^» INNT birth i.e. 10.02.1944, thus the petitioner would retire from service, accordingly. The case of the petitioner is that in November, 2003 when he informed his mother that according to the order dated 16th September, 2003, he is going to retire on 29.2.2004 then his mother told the petitioner that he was born sometime in the month ofJanuaiy, 1945 thus his date ofbirth is '24.1.1945' and not '10.02.1944'. Thereafter, the petitioner tried to search in government record and he could get the information from the death and birth register of Police Station, Raigarh (Raigarh Riyasat) (Annexure P/3) that in village Beleria in the house of Mohan Kolta a baby boy born on 24.1.1945. Accordingly, the petitioner filed a representation dated 15.12.2003 along with his affidavit (Annexure P/4) for correction in the service record to change the date of birth. Thereafter, the petitioner filed a reminder on 3.2.2004 (Annexure P/5). The petitioner filed this petition on 17.2.2004 seeking an interim relief to allow the petitioner to continue in service till 31.1.2005 as per his actual date ofbirth 24.1.1945. During the pendency of the petition, the representation of .the petitioner dated 15.12.2003 and 3.2.2004 was rejected by the State Government by order dated 24.2.2004 (Annexure P/6). The contention of the petitioner is that the State Government has rejected the representation of the petitioner contrary to its own circular dated 23.8.1996 (Annexure P/8). The petitioner has also obtained a birth certificate issued by the Janpad Panchayat, Raipur on 20.6.2009 (filed along with I.A.No.3 dated 22.6.2009 for taking additional document on record), showing his date of 1 ^^^, 1 ^.-// •<x'.... vr :.^' \^ ^ 6. birth as 24.1.1945 and a horoscope (Annexure P/22), prepared by his family priest. The petitioner submitted there was no ill intention of the petitioner in submitting the representation for correction of date of birth in the servrice record. It is a legal right of the petitioner to serve up to the age of 60 years as per his actual date of birth. The representation of the petitioner has been rejected by the incompetent authority and the order dated 24th February, 2004 (Annexure P/6) does not show that it was issued in the name of Governor. The delay, if any, in submitting the representation for correction of date of birth in the service record is not an absolute bar. In support of his submission he rely on the decisions in V. K. Simpy Vs. State of Gujrat (2000 (8) SLR 281), S. K. Bhattachaiya Vs. The State of Bihar 8s others (passed by a Division Bench of Patna High Court) 1971 (6) SLR 281 and R. K. Jangra Vs. State of Punjab and others. The petitioner also submitted that the Government of India has considered the representation of Shri Vishwa Ranjan, IPS for correction in the date of birth and by order dated 7th March, 2007 his date of birth was corrected, just 23 day before the date of his retirement i.e. 31stMarch2007. Shri Yashwant Singh Thakur, learned Deputy Advocate General submitted that on 30.7.1969 the petitioner was appointed on the post of Tahsildar. The date of birth of the petitioner was clearly recorded in the ser^ice book as 10.2.1944. There is no ovenvriting or any manipulation on it. The entries in the service book were accepted by the petitioner by putting his signature on 28.11.1969. The petitioner himself had produced a copy of the Higher Secondary School Certificate Examination "Aw Course v^ \ 1961 (Annexure R/l), wherein his date of birth is recorded as 10-2-1944. According to the date of birth recorded in the service record, the order dated 16th September, 2003 (Annexure P/2) was issued that the date of retirement of the petitioner is 29.2.2004 and accordingly he was retired from service. Even if the actual date of birth of the petitioner is other than '10.02.1944Y which was recorded in the service record, the petitioner has made all his efforts to get the correction in the ser^ice record after issue of the order dated 16th September, 2003 i.e. before five months of the date of his retirement. Thus, the representadon of the petitioner suffers from delay and latches. Such belated approach is condemned by the Supreme Court in various decisions. 7. I have heard the petitioner in person and learned Deputy Advocate General for the State and perused the pleadings & the documents appended thereto. 8. It is not in dispute that in the ser^ice book (Annexure P/l), at the time of appointment, the date o^birth of the petitioner was recorded as '10.02.1944', which was duly signed by the petitioner. The reliance of the petitioner on the information received from his mother and subsequently obtaining information from the police records (Annexure P/3) and obtaining a birth certificate (Annexure P/9) on the basis of the entries in the police records, are not helpful to the petitioner. The petitioner has produced a certified copy of the police records (Annexure P/3). It appears to be a copy of the death and birth register bf Police Station, Raigarh, wherein the name of the father of the child is shown as "Mohan Kolta?\ In fact the name of the ^ liet)»fli»aw.n «HnT;;faHii» i \^ 1 petitioner's father is Mohan Lal Pradhan. Further, the birth of the child is shown as "24.1.45?\ It is not clear asto whether the born child is "the petitioner" or some other child. The Higher Secondary School Certificate Examination (A? Course, 1961 dated ' 8th July, 1961, issued by the Board of Secondary Education, Madhya Pradesh also confirms the date of birth of the petitioner i.e. 10-2-1944, which has been clearly recorded in the service book. 9. Thus, there is np reason to disbelieve the entry of the date of birth recorded in the service book. In fact the petitioner has not taken any steps for correction of his date of birth, if any, during his ser^ice period. Only the petitioner attempted after an order dated 16th September, 2003, intimating the date of retirement was issued by the authority. The attempt of the petitioner to get his date of birth corrected, by advancing representation (on 15.12.2003) about three month prior to-his date of retirement ( 29.2.2004), amounts to an attempt at the fag end ofhis service. In the case on hand it was done only after notice of date of retirement was issued. 10. Hon'ble Supreme Court in G.M. Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad & Others1 observed that "The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters Courts should bear in mind that a change of the date of birth long after joining ser^ice, particularly when the employee is due to retire ' 2000 (8) SCC 696 \< b^ li ^ shortly which will upset the date recorded in the ser^ice records maintained in due course of administration should not generally be accepted". It has been further obser^ed that <(it is not the case of the employee that there has been any arithmetical mistake or typographical error patent on the face of the record, the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution should not interfere with the decision of the employer/' 11. Hon'ble Supreme Court in State of Punjab and others v. S.C.Chadha2 observed that "Normally, in public service, with entering into the ser^ice, even the date of exit, which is said as date of superannuation or retirement, is also fbced. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all ser^ices, because eveiy service has fbced the age of retirement, and it is necessary to maintain the date of birth in the ser^ice records/' 12. Hon'ble Supreme Court in State of U.P. and another v. Shiv Narain Upadhyay3 obser^ed that a trend can be noticed that many public servants on the eve of their retirement waking up from their supine slumber raise a dispute about their service records by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India as to whether the date of birth recorded is correct or not. Most of the States have framed statutory rules or issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the sen/rice record is to be dealt with and what 2 (2004) 3 SCC 394 3 (2005) 6 SCC 49 %.. ^ss^ -:-'3:y "::..~w^^^~ v^ procedure is to be followed. The sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public ser^ant. 13. In the matter of correction in the date of birth, the consistent view of Hon'ble Supreme Court is that correction in entries made in government records on the basis of which the government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement. It is well settled that an employee will not be permitted to apply for change of date of birth at the fag end of his ser^ice career and in any case the High Court ought not to have exercised its writ jurisdiction to determine the real date of birth. (See U. P. Madhyamik Shiksha Parishad and others v. Raj Kumar Agnihotri4 and Coal India Ltd. and Another Vs. Ardhendu Bikas Bhattacharjee and others5) 14. In an identical issue, wherein the petitioner did not raise dispute till the date of retirement, this Court in the matter of Wazid Ali Vs. South Eastern Coalfields Limited Ssothers, dismissed the writ petition. 15. In R. K. Jangra Vs. State of Punjab and others6, relied on by the petitioner, in the peculiar facts and circumstances of the case, where the petitioner there in had made an application for change of his date of birth within two years of his joining the service, Hon'ble Supreme Court directed theconcerned authority to consider his representation in the light of the documents and 4 (2005) 11 SCC 465 5 2005 (12) SCC 201 6 (2009) 5 SCC 703 0-1-" -:w:^^ /,/- t"-, '^ -.^ ..^ 16. 17. 18. \^i\ had filed the representation about five months prior to his date of retirement. The contention of the petitioner that the decision on the representation is contrary to the circular dated 23.8.1996 (Annexure P/8) is misconceived. The circular relied on^by the petitioner, provides guidelines to the concerned authorities to take decision in the matters of finalizing pension matters where there is overwriting or manipulation in the service records. None is available here. The contention of the petitioner that the representation should be considered and decided in the name of the Governor, deser^es to be rejected, as it is not a part of the business rules which is framed under provisions of Article 166 of the Constitution of India. Further, it is not a case of the petitioner that it was a statutory representation. Therefore, it should not necessarily be decided by order of the Government in the name of the Governor. Looking from all angles, when there is no ovenvriting or manipulation in the service book, the school certificate also confirms the date of birth as 10.2.1944 and the petitioner has not taken any steps during his service time for correction of the date of birth, there is no merit in the case. The writ petition is dismissed, accordingly. No order asto costs. Thakur Sd/- Satish K. Agnihotri Judge