IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP(T) No. 4206/2008 (OA 386/97) Judgment reserved on : April 9, 2009 Date of Decision : May 5, 2009 Sh. Jadu Ram Petitioner Versus State of H.P. and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. Ashwani Pathak, Advocate, for the petitioner. For the respondents : Mr. R.K. Sharma, Senior Addl. Advocate General with Mr. Vivek Thakur, Addl. A.G. and Mr. Anil Jaswal, Dy. A.G. for the respondents. Sanjay Karol, J. The petitioner has prayed for the following reliefs: “i) That the applicant may kindly be re-instated as work charged Beldar with all consequential benefits and Annexure A-9 may kindly be quashed and set aside; ii) That the respondents may kindly be directed to make the entry qua date of birth in his service record as 11.10.1943.” Annexure A-9 is the order passed by the Junior Engineer conveying the superannuation of the petitioner w.e.f. 31.8.1995. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Petitioner was appointed as Beldar in the year 1979. He was given the status of a Work Charged Beldar with effect from 15.12.1994. He was asked to furnish the proof of his age alongwith other documents. The petitioner joined on 31.12.1994 and furnished the birth certificate showing his date of birth as 9.8.1935 (Annexure R-2). He was medically examined and even as per the certificate issued by the Medical Officer (Annexure R/3) he was found to be 59 years of age. The Government accepted the petitioner’s contention and in the records, incorporated the date of birth as furnished by him. Accordingly he retired on 31.8.1995. Just two days prior to his retirement, petitioner represented to the Government that the birth certificate initially submitted by him, wrongly reflected his date of birth to be 9.8.1935, whereas it should have been 11.10.1943. He got the mistake rectified in the record maintained under the provisions of The Registration of Births and Deaths Act, 1969 (hereinafter referred to as the Act) evidenced from the order dated 29.8.1995 passed by the Executive Magistrate, Bilaspur (Annexure A/5-T) as also the latest birth certificate (Annexure A-6). Accordingly he asked the Government for correction of the entries of his date of birth with a further request that he be allowed to continue to discharge his duties till the date he acquired the age of retirement commencing from 11.10.1943. His representation was rejected vide letter dated 9.8.1996 (Annexure A-1) for the reason that under Rule 7.1 of the H.P.F.R. 3 Volume-I, a Government servant could apply for correction of date of birth within two years from the date of his entry in Government service. The reason assigned by the respondents is obviously untenable in law. The petitioner was awarded work charged status only on 15.12.1994 and prior to that he was only working as a Daily Waged Beldar. It is common case of the learned counsel for the parties, that no record of age of proof/date of birth is either required to be furnished by the employee or maintained by the employer. Since petitioner took steps to get the governmental record corrected within two years, it cannot be said that the Rules stood violated in any manner. But the fact of the matter is that the respondents were not party to the rectification proceedings. Petitioner immediately did not bring the fact of the incorrect recording of his date of birth to the authorities. It was just two days prior to his retirement that he got the record rectified. Even with regard to the same lot can be said. Method and the manner adopted by the Executive Magistrate in passing the order dated 29.8.1995 and issuing the certificate of Birth (Annexure A-6) only raises doubt about the petitioner’s alleged actual date of birth. Importantly not much reliance can be placed on the order passed by the Executive Magistrate, Bilaspur as from the order sheet it is evident that petitioner moved an application for rectification on 29.8.1995 and without issuing any public notice or 4 affording adequate time/ opportunity calling for objections from the General Public, order thereupon was passed on the very same day itself. Everything appears to have been done in great haste. Further, it appears that in the said application petitioner concealed issuance of earlier certificate issued by the authorities under The Registration of Births and Deaths Act, 1969, indicating his date of birth as 9.8.1935 (Annexure R-2). Evidently order dated 29.8.1995 was passed on the petitioner’s application under sub- Section (3) of Section 13 of the Act which reads as under: “(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.” It deals with cases which are not registered within one year of the occurrence of either birth or the death. The provision is for fresh registration of cases. The rectification/correction proceedings are stipulated under Section 15 of the Act. The order dated 29.8.1995 is not an order of correction but an order passed under Section 13 (3) of the Act incorporating a new entry in the record. Even in collateral proceedings the authenticity or genuineness of the certificate can be looked into. In Hari Shanker Jain versus Sonia Gandhi, (2001) 8 SCC 233, the Apex Court has held that presumption of validity and regularity 5 attaches to a certificate and the Court may presume that official acts have been regularly performed. A presumption attaching to the certificate is available to be drawn to the effect that the prescribed authority, issuing the certificate was competent to do so and that it had satisfied itself as to the acceptance of such facts as would entitle the applicant for issuance of a certificate and that the application for issuance of certificate filed by the applicant is in order. But however the said presumption is rebuttable and not conclusive. Further in Kumari Madhuri Patil and another versus Addl. Commissioner, Tribal Development and others, (1994) 6 SCC 241 while dealing with the case of issuance of a SC category certificate the Court held that Court has to see whether the authorities considered all the relevant material placed before it and has applied its mind to the relevant facts. It is found that the applicant has played a fraud no sympathy and equitable considerations can come to his rescue. A party that seeks equity must come out with clean hands and a party which comes to the Court with false claim cannot plead equity, nor the Court would be justified to exercise equitable jurisdiction in his favour. The certificate showing the petitioner’s date of birth as 11.10.1943 (Annexure A-6) is not conclusive proof of his date of birth. The certificate was not issued, after thorough investigation but only on the basis of the petitioner’s own statement. There is doubt 6 about the genuineness of the said certificate. Unlike the earlier certificate the column of “Registration Number” and “Date of Registration” have been scored off as Nil. The certificate must possess number and date. Hence there cannot be any presumptive value attached to the same. Importantly the earlier certificate (Annexure R-2) has not been cancelled. The genuineness or correctness of the subsequent certificate (Annexure A-6) being in doubt the former has to be accepted. Therefore in the absence of sufficient proof it cannot be said that the petitioner’s date of birth is 11.10.1943 and not 9.8.1935. For the aforesaid reasons the petition being without any merit is dismissed. (Sanjay Karol), Judge. May 5, 2009 (PK)