IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 11896 of 2008. Reserved on : 27.12.2010. Decided on: 07.01.2011. Neelmani Negi. …Petitioner. -Versus- Secretary, Deptt. of Rural Development and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Tek Chand Sharma, Advocate. For the respondents. : Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Petitioner was appointed as Gram Sevika in the year 1979. In her service record, the date of birth was recorded as 18.02.1953. 2. Case of the petitioner, in a nut-shell, is that her date of birth is 18.02.1953 as per Annexures A-2 and A-3 and not 18.02.1958. 3. Mr. Tek Chand Sharma, learned counsel for the petitioner has strenuously argued that on the basis of Annexures A-2 and A-3, the date of birth of his client should be recorded as 18.02.1958 instead of 18.02.1953. 4. Mr. R.P. Singh, learned Assistant Advocate General has vehemently argued that the petitioner was appointed on 03.05.1979 and the representation has been made by her for the 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - first time only in 2003 and the same has rightly been rejected by the competent authority on 23.01.2004. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. Petitioner was appointed as Gram Sevika on 03.05.1979. In her service record, the date of birth has been entered on the basis of matriculation certificate (Annexure A-4) as 18.02.1953. The application seeking change in the date of birth has to be filed expeditiously within a period of two years as per H.P.F.R., 1971. Initially, the period prescribed was five years. Now, the same has been reduced to two years. The purpose of giving period of two years is to remove any un- certainty in the date of birth. In the instant case, the petitioner has also countersigned her service record, whereby the date of birth given is 18.02.1958. The representation has been made by the petitioner belatedly. It has been made after 24 years’ of her appointment, though the same as per law was to be made within a period of two years. It cannot be believed that the petitioner was not aware of her date of birth. Petitioner has procured Annexures A-2 and A-3 and the same cannot be considered in view of matriculation certificate issued vide Annexure A-4, whereby the date of birth of the petitioner has been shown as 18.02.1953. The representation made by the petitioner in 2003 has been rightly rejected by the Director, Rural Development Department, H.P. on 23.01.2004, being belated and also taking into consideration the date of birth mentioned in matriculation certificate (Annexure A-4). - 3 - 7. 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. 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 - 4 - 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 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. - 5 - 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) “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.” 8. Accordingly, in view of the observation made hereinabove, there is no merit in this petition and the same is dismissed. No costs. (Rajiv Sharma) Judge January 07, 2011. (bhupender) - 6 - - 7 -