IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.8225 of 2010 Date of Decision : May 13, 2010. Suresh Kumar .....Petitioner versus State of Punjab and others .....Respondents CORAM : HON'BLE MR.JUSTICE SURYA KANT. Present : Mr.B.S.Walia, Advocate, for the petitioner. -.- 1. Whether Reporters of Local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? --- Surya Kant, J. (Oral) The petitioner seeks quashing of the orders dated 27/28.1.2010 and 9.3.2010 (Annexures P-21 & P-23 respectively) and also a writ of mandamus to direct the State of Punjab to make correction in his date of birth as per the recommendations made by the Deputy Commissioner, Patiala and consequently, allow him to continue in service as Executive Engineer. 2] Briefly noticed, the facts are that the petitioner joined the Irrigation Department, Government of Punjab as a temporary Engineer on 12.10.1982. In the service book, the petitioner was shown to have born on 27.6.1952 as per his date of birth entered in the matriculation certificate. On 21.6.1994, the State of Punjab, Department of Finance, issued a C.W.P.No .8225 of 2010 2 notification under the Punjab Civil Services Rules (Vol.I, Part-I) and invited applications from the Government employees for rectification of their dates of birth. The petitioner moved an application on 31.5.1995 (Annexure P-2) claiming that his actual date of birth was 20.6.1954 and not 27.6.1952, as erroneously mentioned in his matriculation certificate. The petitioner’s application was forwarded by the Chief Engineer, Canals, Irrigation Works and pursuant thereto, the State Government vide its memo dated 25.9.1995 (Annexure P-4), directed the Deputy Commissioner, Patiala, to conduct a fact finding enquiry and send his report to the State Government. 3] The Deputy Commissioner, Patiala, vide his memo dated 30.7.1997 (Annexure P-5), sent the following report:- “....I have gone through the record produced berore me in connection with the correction of date of birth of Sh.Suresh Kumar Garg, Engineer. Sh.Suresh Kumar has produced the birth certificate of his brother and sisters. Apart from this, the affidavits of his father Sh.Parkash Chand @ Om Parkash and President of Municipal Committee, Samana, are also on the file, which also support the claim of Sh.Suresh Kumar Garg. I have also gone through the certificate issued by the Registrar Births and Deaths, Patiala with regard to the date of birth of Sh.Suresh Kumar and have also tallied the same with the original record of the Registrar's office. From the above, I am satisfied that the date of birth of Sh.Suresh Kumar Garg, is 20.6.1954 instead of 27.6.1952......” (emphasis applied) C.W.P.No .8225 of 2010 3 4] The State Government, however, did not accept the enquiry report of the Deputy Commissioner, Patiala and rejected the petitioner’s representation vide memo dated 15.12.1997 issued on 7.1.1998 (Annexure P-6). 5] The petitioner appears to have sent yet another representation and the State Government vide memo dated 2.2.1999 (Annexure P-7), called for some information from the Chief Engineer, Canals, Irrigation Department and decided to consult the Personnel Department. 6] The Personnel Department did not agree with the Irrigation Department’s proposal to change the date of birth of the petitioner and following its advice, the parent department again turned down the petitioner's claim vide memo dated 6.8.2008 (Annexure P-11). 7] The petitioner successfully challenged the above-stated order before this Court in Civil Writ Petition No.19257 of 2008 which was allowed to the extent that the non-speaking orders were set-aside and a direction was issued to the State Government to pass a speaking and reasoned order. Pursuant thereto, the State Government has passed the impugned order dated 27/28.1.2010 (Annexure P-21) rejecting the petitioner’s claim, followed by rejection of the petitioner’s one more representation dated 24.2.2010 (Annexure P-22) vide memo dated 9.3.2010 (Annexure P-23). 8] Aggrieved, the petitioner has again approached this Court. 9] I have heard learned counsel for the petitioner at some length and perused the impugned orders as well as the other material on record including the additional affidavit dated 11.5.2010 alongwith the C.W.P.No .8225 of 2010 4 documents appended thereto. 10] It is vehemently contended that in terms of the Punjab Government notification dated 21.6.1994 (Annexure P-1), the Deputy Commissioner was the sole competent authority to hold a fact finding enquiry regarding the correct date of birth of a Government employee and since in the petitioner’s case the Deputy Commissioner, Patiala, has found that the correct date of birth of the petitioner is 20.6.1954, it was imperative upon the State Government to accept that report and make necessary correction in his date of birth. It is also urged that there is no material to the contrary to belie the enquiry report of the Deputy Commissioner, Patiala and that the impugned order is mainly loaded with the opinion of the Personnel Department who had no authority to opine in such like maters. Reliance is also placed upon a decision dated July 12, 2005 of this Court in R.S.A.No.4056 of 2004 (State of Punjab versus Devinder Singh Jassar) arising out of a Civil Suit against which Special Leave to Appeal was declined by the Hon’ble Supreme Court vide order dated 31.3.2006 (Annexure P-25). 11] In my considered view, none of the contentions merits acceptance and are liable to be rejected for more than one good reasons. The petitioner passed his matriculation examination in the year 1972 and completed his Degree in Engineering in the year 1979 before joining the Government Service as a Temporary Engineer in the year 1982. Thus, the petitioner had a period of more than 10 years to seek correction of his date of birth before jointing the Government service but no such C.W.P.No .8225 of 2010 5 efforts were ever made by him. 12] Even at the time of the petitioner’s appointment in the year 1982, the existing provisions under the Punjab Civil Services Rules enabled a Government employee to seek correction in his date of birth within a period of two years of joining the Government service. The petitioner never applied for such correction within that stipulated period also. 13] Adverting to the application moved by the petitioner in response to the 1994 notification and the enquiry report of the Deputy Commissioner, Patiala, heavily relied upon by him, suffice it to say that the report given by the Deputy Commissioner, Patiala, was merely on the basis of affidavits of the petitioner’s father and the President of the Municipal Committee, Samana. The birth certificate (Annexure P-26) relied upon by the petitioner does not contain his name. It simply suggests that a ‘male child’ was born to the petitioner’s parents on 20.6.1954. Admittedly, the petitioner has two brothers and four sisters whose dates of births, as disclosed by the petitioner in his affidavit dated 11.5.2010, are as follows:- “Name Date of Birth 1. Surinder Kumar Garg Son 3.8.1953 2. Walaiti Ram Son 20.8.1956 3. Santosh Kumari Daughter 7.2.1958 4. Kamlesh Kumari Daughter 11.3.1959 5. Salochna Devi Daughter 20.8.1961 6. Veena Devi Daughter 20.3.1964” C.W.P.No .8225 of 2010 6 14] If the petitioner's plea were to be accepted then it would mean that after the birth of eldest male child on 3.8.1953, his parents gave birth to another child hardly after 10 months which may not be impossible but is unusual, especially keeping in view the time gap between births of other six children. 15] The petitioner claims that his elder brother was born on 3.8.1953, therefore, he could not have possibly born in the year 1952. The contention though appears to be attractive but has no substance as it is too difficult for this Court in exercise of its writ jurisdiction to hold that Surinder Kumar Garg is younger or elder to the petitioner. Going by the age difference between his other brothers and sisters, it appears more possible that the petitioner was born in the year 1952, followed by the birth of his brothers/sisters in the years 1953 onwards. 16] The Principal Secretary to the Government of Punjab, Irrigation and Power Department, while rejecting the petitioner’s claim, has observed as follows:- “......6. I asked Shri Garg, to furnish the documentary evidence in support of his claim of being a topper of the district. Shri Garg has failed to furnish any documentary evidence. I have also gone through the Detailed Marks Certificates of Shri Garg in respect of his Pre- University, Pre-Medical/Pre-Engineering examinations. On being questions about his claim of brilliance not matching with the marks obtained by him, Shri Garg took the plea that he had some family problem during that period. I have also tried to gauge his brilliance from C.W.P.No .8225 of 2010 7 the marks obtained in B.E. As per provisional certificate dated 23.7.1979 of B.E. Final Mechanical examination issued by Thapar Engineering College, Patiala, Shri Garg scored 3262 marks out of 5275 marks i.e. About 62%. This shows that Shri Garg was a good student but it does not give evidence of my extra-ordinary brilliance as is being claimed by Shri Garg. The question of brilliance is relevant because if it was proved then it could lead to the assumption of his being years old at the time of Matriculation being somewhat uncommon, as normally a brilliant student is not that old at matriculation. 7. After going through the office record, I find that Shri Garg had in his application before the PPSC for recruitment as Temporary Engineer filled his date of birth as 27.6.1952. Whereas, he passed out from the Thapar College of Engineering in the year 1979; he joined as Temporary Engineering Mechanical in Government of Punjab in 1982. Since he matriculated in 1972 and joined Government of Punjab in 1982, I asked him he had made any efforts in these 10 years to get his date of birth corrected in the Matriculation certificate. Shri Garg replied that he did not make any efforts in this regard. Even after joining Govt. Service in 1982, he started making efforts as per hint, only after instructions were issued in 1994 by the Government of Punjab......” (emphasis applied) 17] In my considered view, the reasons assigned by the State Government are neither irrational nor absurd and the said view is one of the possible views. No interference by a writ Court in such like disputed C.W.P.No .8225 of 2010 8 questions is, thus, warranted. 18] It can also not be over-looked that there is a growing tendency amongst the Government employees to seek change in their dates of birth nearing the retirement. 19] The reluctance of the Courts in commanding the appropriate authority to change the date of birth of an employee at a belated stage has been acknowledged in a catena of decisions. 20] In Union of India v Harnam Singh [1993] 2 SCC, 162 , the Supreme Court ruled that description of five years period in Note 5 of FR 56, for those who are already in government service prior to 1979 to seek correction in the date of birth, was fair and reasonable. The claim of the employee was turned down in view of unexplained and inordinate delay; 21] In State of T.N. V T.V.Venugopalan [1994] 6 SCC, 302, it was held that once the date of birth has been recorded while entering into service and is duly counter- signed by the government servant, ordinarily he should not be permitted to change such entry; 22] In Union of India v Kantilal Hematram Pandya [1995] 3 SCC, 17, the Supreme Court held that where there is unexplained and inordinate delay in seeking correction in the date of birth, the judicial interference should be made sparingly and with circumspection; 23] In Burn Standard Co. Ltd. V Dinabandhu Majumdar [1995] 4 SCC, 172, it was held that where an employee of the Government or its instrumentality voluntarily makes a declaration of his date of birth at the time of entry into service and when such date of birth is duly authenticated by him, the High Court should not C.W.P.No .8225 of 2010 9 ordinarily, in exercise of its discretionary writ jurisdiction, entertain a writ petition filed by such an employee seeking correction of his date of birth; 24] In Chief Medical Officer v Khadeer Khadri [1995] 2 SCC, 82 it was held that where an employee seeks correction in date of birth beyond the statutory time limit, prescribed under the Rules, his application is liable to be rejected; 25] In Board of Secondary Education of Assam v Mohd. Sarifuz Zaman [2003] 12 SCC, 408 the prescription of three years' period under Regulation 8 of the Service Regulations for applying to seek correction in the date of birth was upheld being reasonable. It was further held that if an employee seeks correction of the date of birth after the expiry of the period of limitation prescribed under the Rules, his claim is liable to be rejected on both counts as the delay defeats discretion and loss of limitation destroys the remedy itself; 26] In State of Punjab v S.C.Chadha [2004] 3 SCC, 394 a direction issued by this Court regarding correction in date of birth was set aside by the Apex Court, holding as follows:- “Before any such direction is issued or declaration made, 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 C.W.P.No .8225 of 2010 10 application must be filed within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording to his date of birth, in his service book”. 27] For the reasons aforestated, I do not find any merit in this writ petition which is accordingly dismissed, however, without any order as to costs. May 13, 2010 (SURYA KANT) Mohinder JUDGE