1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP 3788 of 2009 Reserved on 31.03.2010 Decided on May 06, 2010 ________________________________________ Ganga Devi …Petitioner Versus State of H.P. and others …Respondents Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice R.B. Misra, Judge. Whether approved for reporting?Yes/No For the Petitioner: Mr. Ajay Sharma, Advocate. For respondents : Mr. R.K.Sharma, Senior Additional No. 1 to 3. Advocate General, with Mr. J.K. Verma, Dy AG. For respondent : Mr. Tara Singh Chauhan, Advocate. No.4 Justice R.B. Misra,J. In the present writ petition the petitioner has made mainly the following prayers:- (i) That a writ of certiorari may kindly be issued and impugned ‘inaction’ on the part of respondent No.4 in not correcting date of birth of petitioner from 15.10.1951 wrongly recorded in matriculation certificate to 15.10.1953, the correct date of birth and further impugned act of the respondents No. 1 to 3 to proceed to 2 superannuate the petitioner from service on 31.10.2009, on the basis of wrong date of birth instead of 31.10.2011, the correct date of superannuation of petitioner. (ii) That a writ in the of mandamus may very kindly be issued thereby commanding firstly respondent oNo.4 to correct the date of birth of the petitioner in matriculation certificate and in turn to respondents No. 1 to 3 to superannuate the petitioner on 31.10.2011 instead of 31.10.2009, i.e. after completion of 58 years of age by petitioner, in the interest of law and justice. 2. In order to adjudicate the present writ petition, it is necessary to give the factual background of the case. It appears that petitioner submitted a representation dated 7.10.2009 (Annexure P-5) to Secretary (Education) to the Government of Himachal Pradesh and an another representation dated 12.10.2009 (Annexure P-6) to the Registrar, Punjab University, Chandigarh, contending that she is working as Principal in Government Senior Secondary School, Parvanoo, District Solan and as per her official record she is to be superannuated on 31.10.2009, as the date of birth of the petitioner was incorrectly recorded in the Government records as 15.10.1953 in place of 15.10.1951. According to the petitioner, as per record of Gram Panchayat, the elder brother of petitioner namely Shri Jang Bahadur was 3 two years elder to her and he being two years elder was born in the year, 1951, as such, her date of birth was not in the year, 1951 but in the year, 1953. Though in the matriculation certificate dated 7.12.2009 (enclosed as Annexure P-1), issued from Punjab University (Roll No. 305121), the date of birth of the petitioner recorded as 15.10.1951 cannot be the correct date as her brother namely Shri Jang Bahadur as per his certificate dated 23.4.1964 (Annexure P-2), has passed middle standard examination for Boys & Girls Session, in the year, 1964 was born in the year, 1951. According to petitioner, the Gram Panchayat record reveals that she is only 56 years old and her date of birth is 15.10.1953, however, under misconception, it was recorded as 15.10.1951 in the matriculation examination. As such, it is about two years to attain 58 years of age in her superannuation, as such, the petitioner had prayed for considering her representation to correct her date of birth as indicated above, when nothing was done, the petitioner has filed the present writ petition. 3. A short affidavit has been filed on behalf of respondents No. 1 to 3 contending that while joining the service in Education Department on 28.6.1989, the petitioner had submitted her matriculation certificate in support of her date of birth, where her date of birth was recorded as 15.10.1951. Petitioner had passed matriculation examination in the year, 1969, whereas, the representation 4 for correcting the date of birth was submitted on 12.10.2009 (Annexure P-6) i.e. after a lapse of about 40 years and that too at the verge of retirement and at the fag end of the career. It has further been contended on behalf of the respondents that the Education Department has been circulating the seniority list of lecturer (school cadre from time to time). The, final seniority list was issued on 20.6.2003, wherein the petitioner’s seniority was indicated and her date of birth was recorded as 15.10.1951. However, the petitioner had never during her long career ever made any representation except the representation dated 12.10.2009 claiming for correction of date of birth on the basis of Parivar Register, which does not mention any date on it. 4. As per to the counter affidavit the provisions given in 7.1 of HPFR Vol-I, Chapter-VII indicate that ” in regard to the date of birth a declaration of age made at the time of entry into Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of Government servant at any time against the interests of that Government Servant when it is satisfied that the age recorded in his service book or in the history of services of a gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage there from.” 5 5. In the detail reply filed on behalf of respondents No. 1 to 3 similar stand has been taken as had been taken in the counter affidavit dated 12.11.209 preferred by Additional Secretary (Education) to the Government of Himachal Pradesh. 6. In order to adjudicate upon the issue in question, it is relevant to refer Rule 7.1contained in Chapter VII of the H.P. Financial Rules, 1971 Vol.I which read as under: “7.1. Every person newly appointed to a service or a post under Government should at the time at appointment declare the date of his birth by the Christian era with confirmatory evidence as far as possible. Confirmatory documentary evidence such as matriculation certificate, municipal birth certificate and so on. If the exact date is not known an approximate date may be given. The actual date or the assumed date determined under note 1 below should be recorded in the history of service book or any other record that may be kept in respect of the Government servants service under Government and once recorded. It cannot be altered except in the case of a clerical error, without the previous orders of Government. (a)If a Government servant is unable to stage his exact date of birth but can state the year, or year and month of birth. 1st July or the 16th of the month, respectively, may be treated as the date of his birth. (b)If a Government servant is only able to state his approximate age, his date of birth may be assumed to be the corresponding date after deducting the number of year representing his age from his date of appointment. (d) (1) in regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Government Service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a 6 correction in the recorded age of the Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of services as a gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom. (2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an enquiry shall be made to ascertain his correct age and reference shall be made to all available sources of information such as certified copies of entries in the Municipal birth register. University or School age Certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant was a bonafide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate is available, the date of birth recorded in the certificate will be deemed to be the correct age. (3) The result of every such inquiry should in the case of Gazetted/Non Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should be reported to Accountant General. 7. It appears from the above provisions of Rule 7.1 that the date of birth declared by the employee and as recorded in the service record while entering in service shall be conclusive unless he applies for correction of his date of birth within two years from the date of his entry into government service and it would be prerogative of State Government to make correction of date of birth/age of 7 government servant after being satisfied that the date of birth and age recorded in his service book is incorrect. 8. It is necessary to analyze previous decisions of different courts as well as Supreme Court on the point in issue. In Bimlesh Sharma Vs. Electricity Board, Office of the Chief Engineer. U.P. Rajya Vidyur Parishad. Moradabad and others. (2003) UP LBEC 280 : [2002(8) SLR 94 (All.)]-where date of birth entered in the service book was to be changed by the wife of the deceased employee when the husband of the writ petitioner had died after retirement by disputing the change of date of birth, the Court has held disputed question of fact cannot be investigated in the writ petition and the date of birth once entered in the service book of the petitioner under U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974, was treated to be correct supported by the relevant documents and supporting entries in the service book and the change of the date of birth disputing the same on the basis of fitness certificate was not treated to be relevant proof of age and such controversy and disputed question of fact could not be resolved by the investigating the authenticity of the documents relied upon by the parties concerned in the writ proceedings.” 9. In the case of Burn Standard Co. Ltd. v. Dinabandhu Majumdar & anr., AIR 1995 SC 1499 (4) SCC 172, it was held that the employee of a public sector undertaking whose date of birth was entered in service book 8 and leave record on the basis of the voluntary declaration made by the employee at the time of appointment and authenticated by him was never objected to up to the fag end of service, thereafter he sought for correction of date of birth about two years before his superannuation, when his prayer was refused, he moved the High Court in the writ petition, where relief was granted in his favour, however, the Supreme Court in appeal by special leave has held that ordinarily the High court should not exercise its discretion in writ jurisdiction and entertain a writ petition filed by an employee of the Government or any instrumentality of State towards the fag end of his service, seeking correction of his date of birth entered in his service record or service register with the avowed object of continuing in service beyond the consequential period of retirement. 10. In case of State of Orissa and others v. Ramnath Patnaik, AIR 1997 SC 2452, the Supreme Court has observed in para 4 “when entry was made in service record and when he was in service, he did not make any attempt to have the service record corrected, therefore, any amount of evidence produced subsequently would be of no avail.” As such in view of decision in Ramnath Patniak(Supra) an employee cannot be permitted to seek correction of his date of birth after his retirement.” 11. In Hindustan Lever Limited v. S.M.Jadhav and another, AIR 2001 SC 1666, the Supreme Court has 9 specifically observed that at fag end of career a party cannot be allowed to raise a dispute regarding his date of birth. 12. In the case of G.M. Bharat Coking Coal Limited, West Bengal v. Shib Kumar Dushad and others, (2000)8 SCC 696, the Supreme Court has held that “no dispute regarding correction of date of birth shall be permitted to be raised after long time of his joining service unless there is some typographical or arithmetical error apparent on the face of the record and production of certificate by employee, showing his date of birth different to that entered in his service record and claim for change of date of birth is a disputed question of fact and High Court should not undertake an inquire into such question in exercise of its jurisdiction under Article 226 of the Constitution. 13. The Supreme Court has also taken a view earlier that if sufficient grounds exist, an inquiry can be held into the correctness of the date of birth recorded in the service register in view of the R.S.Kalolimath v. State of Mysore, (1978) 1 SCR 145; AIR 1977 SC 1980 however, such an inquiry must conform to the rules of natural justice and the employee must have an adequate opportunity to set up his defence as has been held by the Supreme Court in State of Orissa v. Binapani Dei. Similar view was also in Sarjoo Prasad v. General Manager, (1981) 3 SCR 544: AIR 1981 SC 1481. 10 14. The change of the date of birth of an employee involves civil consequences. Such an order to the prejudice of the employee can be made only after an inquiry is made in which the employee is given adequate opportunity to set up his defence and to correct or controvert the evidence which is being relied upon against him. If a unilateral determination of the age of the employee is made to the prejudice of the employee, such an order is likely to be quashed by the Courts of law. It is no defence to say that the order made is in exercise of administrative power. {State of Orissa v. Binapani Dei, (supra). 15. In view of decision in Bhupendra Nath Chatterjee v. State of Bihar & ors., AIR 1977 SC 746, the date of birth recorded in service record is to govern the date of superannuation of the person from service. 16. In the matter of correction of date of birth, an application for the purpose is to be filed, according to the procedure prescribed within the time under rules or if no rule is prescribed; such application should be made within reasonable time. The court or the tribunal must therefore be slow in granting an interim relief for consideration in service unless prima facie evidence of unimpeachable character is produced. The onus is heavy on the employee to prove the authenticity of the date of birth claimed for, as observed by the Supreme Court in Secretary-cum-Commissioner, 11 Home Department & ors. v. R. Kirubakaram, 1994 Supp (1) SCC 155. 17. The application for correction of date of birth as recorded in the service book is not to be allowed when the employee without adducing reliable evidence and without explaining the inordinate delay has approached, seeking correction of date of birth in view of Union of India and others v. Kantilal Hematram Pandya, (1995) 3 SCC 17. 18. When Andhra Pradesh Public Employees (Recording and Attestation of Date of Birth) Rules, 1984, provided power for correction of bona fide mistake in recording the date of birth, within three years of entry into service then the correction sought by the employee in 1991 i.e. after forty years when date of birth was recorded in the year 1951, the prayer made as such bleated stage was not to be accepted in view of the verdict in Chief Medical Officer v. Khadeer Khadri, AIR 1995 SC 850 (1995 ) 2 SCC 82}. 19. In Union of India v. Ram Suia Sharma, (1996) 7 SCC 421, the Supreme Court has again reiterated that after 25 years of joining in the service the claim for correction of the recorded date of birth in service record could not have been entertained by the Tribunal. 20. In respect of condition precedent for correction of date of birth the Supreme Court held that the employee seeking the correction of the date of birth must show that the recorded date of birth was made due to negligence of 12 some other person or that the same was an obvious clerical error and that where the employee fails to do so, such relief for correction of date of birth should not be granted by the Administrative Tribunal. In that case, the extract from the Birth Register was produced, subsequently recording of date of birth on the basis of school leaving certificate. The authority refused to correct the date of birth in the service book on the basis of such extract. Supreme Court observed that in absence of any material to show that the entry in the school leaving certificate was incorrect, the authority rightly refused to correct the date of birth, more so when the extract from the Birth Register even otherwise was found to be doubtful. {Commissioner of Police, Bombay and anr. v. Bhagaban V. Lahane, (1997) 1 SCC 247. 21. The decree obtained by an employee from a civil court against the Board/University for correction of his date of birth in the matriculation certificate issued by the Board/University, after entry into service without impleading the Government/employer as a party is not binding on the Government/employer. It may be a piece of evidence and what is the date of birth is undoubtedly a question of fact and so all kinds of evidence can be looked into for such determination and if the Government on consideration of all the facts refused to correct the date of birth, then the order cannot be interfered with by the Court or Tribunal. [Director 13 of Technical Education & Anr. vs. K. Sitadevi(Smt.), AIR 1991 SC 308:1991 supp (2) SCC 387]. 22. The application for correction of the date of birth of an in-service- employee who entered into service on 12.1.1952 and had countersigned the date of birth recorded in service book could be allowed to seek correction within five years from the date when Tamil Nadu State and Subordinate Service Rules, 1961 had come into force and if no application is made within five years from 1961 then the submission of application by employee exactly one year of superannuation at the fag end of his service was held to be rightly rejected by Government as observed by the Supreme Court in State of T.N. vs. T.V. Venugopalan, (1994)6 SCC 302]. 23. In reference to the decision of Supreme Court in Burn Standard Co. Ltd. (supra) where entry of date of birth noted in the Admit Card of Matriculation examination could not be relied upon by the employer to correct his date of birth mentioned in the service record and leave Register of the employee and authenticated by the employee himself it was the date of birth recorded at the time of joining service on the basis of the S.S.L.C. Register was challenged by the employee 35 years later and his previous application for correction seven years earlier had already been rejected by the authority and at the belated stage, the only evidence was his oral evidence and the horoscope evidence. Therefore, the 14 Supreme Court held that at the belated stage the horoscope evidence or oral statements cannot be believed {Collector of Madras & another v. K. Rajamanickam, (1995)2 SCC 98}. 24. When the employee challenged his declared date of birth as mentioned in the notice of superannuation by asserting that his service records were missing and the Department pleaded before the Court below that the service record was manipulated and that the service register was removed by the employee in connivance with the Office Superintendent, in such circumstances, the date of birth noted in the periodical medical inspection reports made by the authorities could not be relied upon to uphold the contention of change of date of birth on the basis of periodical medical inspection reports, in the light of the decision of Supreme Court in Sheo Nandan Singh v. Union of India,(1996) 1 SCC 593}. 25. Entry made in the service record, when the employee was in service, but no attempt was made to have the service record corrected, then any amount of evidence produced subsequently would be of no avail and correction of date of birth is not permissible after retirement. {State of Orissa and others v. Ramnath Patnaik, (1997) 5 SCC 181. 26. In Ehtesham Ullah Khan v. Central Administrative Tribunal, Allahabad and others, 2003(3) 15 ESC 1567 (All)(DB) the High Court of Allahabad has held that once the date of birth is recorded in service record, at the time of entrance in service, it can be changed only by production of strong documentary evidence showing that it was incorrect. Any document coming into existence subsequent to entrance in service then the correctness or genuineness of entry therein is said not free from doubt. In the instant case, petitioner joined service in 1963 and got his date of birth recorded as 17.5.1934, thereafter, he had passed High School Examination in 1965, wherein date of birth was recorded as 17.2.1943. He filed application for change of his date of birth in 1987, i.e. after 19 years of his service on the strength of this High School Certificate, a documentary proof, which by itself was rightly not found reliable, in view of settled law, besides it the fact about its genuineness also became doubtful as parentage of petitioner was found recorded different than that recorded in service record as such the Tribunal, therefore, rightly held to have rejected the application. 27. In State of Madhya Pradesh and others v. Mohan Lal Sharma, (2002) 7 SCC 719=JT 2002 (10) SC 207, the Supreme Court held that while examining the issue of a correction of date of birth the court must be very slow in accepting the case of applicant if issue has been agitated at a much belated stage. Employee entered into Government service indicating his date of birth as 19.4.1935 by virtue of 16 his passing matriculation examination in 1955, but his application for correcting the date of birth submitted within six months of his superannuation on the strength of horoscope and a certificate of retired Headmaster showing his date of birth as 3.2.1937 was rightly rejected because tribunal erred in giving direction as in the case the date of birth was treated as 3.2.1937 then the employee could not have joined service in 1955 being under the age of 18 years. 28. There is presumption that official acts are regularly performed though such a presumption can be rebutted by adducing evidence. In view of illustration (e) of Section 114 of Evidence Act, 1872 the official act if proved to have been done is presumed to have done regularly. {Vide Jhaman Lal v. State of Rajasthan and others, AIR 1965 Raj 86; Somasudarshan Goud v. The District Collector, Hyderabad and another, AIR 1978 AP 420; Ganga Ram v. Smti Phulwati, AIR 1970 Allahabad 446; Saeed Ahmed v. Syed Qamar Ali and another, AIR 1973 Allahabad 24; Gopal Narain v. State of U.P. and Another, AIR 1964 SC 370; Maharaja Pratap Bahadur Singh v. Thakur Man Mohan Dey and others, AIR 1966 SC 1931; Ajit Singh v. State of Punjab and another, AIR 1967 SC 856;