IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 1468 of 2007 Date of decision: 15.12.2008 State of H.P. and others ..Petitioners Versus Bishan Lal ..Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners: Mr.P.K.Sharma, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General. For the Respondent: Ms. Jyotsna Rewal Dua,Advocate Per Surjit Singh, Judge(Oral) State of Himachal Pradesh and Settlement Officer, Shimla, petitioners herein, have sought judicial review of the order dated 18.5.2007, passed by the State Administrative Tribunal, whereby O.A. filed by respondent Bishan Lal, seeking correction of his date of birth, has been allowed and his date of birth has been ordered to be changed from 27th April, 1950 to 28th June, 1954. 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 2. Relevant facts are like this. Respondent Bishan Lal passed his matriculation examination in the year 1971 and in 1972 he was enrolled as daily waged Patwari. On 22nd April, 1977 he was appointed as Patwari on regular basis. His service book was prepared, in which his date of birth was recorded as 27.4.1950 on the basis of matriculation examination certificate. On 9.5.1983 he made a representation seeking change in his date of birth and correction in his service book. He claimed that his date of birth was 28th June, 1954 and that date of birth recorded in his matriculation certificate and consequently in the service record was in fact that of his elder brother, Puran Chand. He stated that he and his elder brother, Puran Chand, were taken to the school for admission by his father on the same day and that, by mistake, his date of birth was recorded to be that of his elder brother, Puran Chand and latter’s date of birth was recorded to be his and that this mistake continued till he passed his matriculation examination. Settlement Officer, i.e. petitioner No.2, got the matter inquired into through the agency of Sub Divisional Magistrate, Chachyot/Gohar. It was found that the claim of the respondent was correct. The matter was referred to the government with the recommendation that date of birth may be changed. The Government, however, rejected the representation on 3.9.1984 and the decision was conveyed to the respondent. 3 3. For 13 years, after the rejection of his representation, the petitioner did not seek any remedy against the order of rejection of his representation. In 1997 he filed a suit in the court of Sub Judge Ist Class, Gohar, District Mandi. His suit was dismissed. He filed an appeal in the court of District Judge, which was ultimately heard by the Additional District Judge, who held that the Civil Court had no jurisdiction and ordered the return of plaint. This order was passed on 28th February, 2005. Thereafter the petitioner filed Original Application before the tribunal which was ordered to be treated as representation to the government and a direction was given to the government to decide the same within fixed time frame. Government rejected the representation. Respondent then filed fresh Original application. Tribunal allowed that O.A. and directed the respondent to change the date of birth of the petitioner in the service record indicating that he was born on 28th June, 1954. 4. Petitioners are aggrieved by this order of the tribunal. According to them, the order is contrary to the provisions of the Rules governing the respondent, i.e. Chapter VII of H.P. Financial Rules, 1971, Vol. I. It is also the case of the petitioners that O.A. was barred by limitation, inasmuch as the representation of the respondent had been rejected on 3.9.1984, but he filed the O.A. in the year 2005. 4 5. We have heard the learned Additional Advocate General as also the learned counsel for the respondent. 6. Facts, as stated hereinabove, are not in dispute. Rule 7.1 of the H.P. Financial Rules, 1971, Vol.I says that a person, newly appointed to service or post under the Government, should, at the time of appointment, declare the date of his birth by Christian era with confirmatory evidence as far as possible. The rule further says that confirmatory documentary evidence, may comprise of matriculation certificate, municipal birth certificate etc. At the relevant time, procedure for correction of change in date of birth was prescribed in Note 2 below Rule 7.1, which was in the form of annexure. The said note in the form of Annexure said that 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 2 years from the date of his entry into government service. This very note has been made part of the main rule itself, w.e.f. 1985, by carrying out amendment in the rule. 7. Now, a bare reading of this note shows that the date of birth declared at the time of the entry into Government service by a Government servant is to be deemed to be 5 conclusive unless correction is sought by making an application within 2 years from the date of entry into service. The note not only fixes the limitation for seeking correction of date of birth, but also says that if correction is not sought within 2 years, the date of birth declared at the time of entry into service shall be deemed to be conclusive. That means, once the date of birth is declared at the time of entry into Government service by a newly appointed person, that is conclusive as against him, unless it is challenged within 2 years and, therefore, this cannot be dislodged by any amount of evidence, if it is not sought to be corrected within two years. In other words, the rule not only prescribes the limitation, but also extinguishes the right on expiry of time limit, like in the case of adverse possession. 8. Admittedly, the respondent had not applied for correction of his date of birth within 2 years of his entry into service. As already noticed, he entered into service in the year 1977 and made the representation for correction of his date of birth in the year 1983, or say after about 6 years. Thus, there was nothing wrong with the order of government in rejecting his representation, even though the fact finding inquiry indicated that his date of birth was different. A Division Bench of this court comprising of ourselves in State of Himachal Pradesh Vs. Karam Singh CWP No. 185 of 2004, decided on 21.8.2008, has taken a similar view. Our judgment in Karam 6 Singh’s case (supra) is based on Supreme Court judgment in State of U.P. and another Vs. Shiv Narain Upadhyaya (2005) 6 SCC 49, which in turn is based on a number of earlier judgments of the Apex Court. 9. Apart from the above stated position, the O.A. filed before the tribunal, was barred by time. Limitation for filing O.A. before the tribunal is one year from the date of the arising of the dispute. In the present case, according to the respondent’s own showing, the dispute arose in September, 1984 when the representation was rejected. Thus, the O.A. was hopelessly barred by time having been filed more than 20 years after the service dispute arose. 10. In view of the above stated position, we are of the firm view that the order passed by the tribunal is illegal being contrary not only to the provisions of Rule 7.1 Chapter VII of H.P. Financial Rules, Volume-I, but also contrary to Section 21 of the Administrative Tribunals Act, which prescribes one year limitation for making original application. 11. As a result of the above stated position, we allow the writ petition and set aside the order of the tribunal. We have been told that the respondent, but for the order of the tribunal which the petitioners have implemented, would have superannuated on 30th April, 2008. Therefore, we order that even though the respondent may not be required to refund the 7 salary and other allowances paid to him for his having served from Ist May, 2008 to date, this period of service shall not count towards qualifying service for the purpose of pensionary benefits. As a consequence of the allowing of this writ petition, we order that the respondent shall cease to be in government service from today, i.e. the date of passing of this judgment. (R. B. Misra ), J. December 15, 2008(K) ( Surjit Singh ), J.