R.S.A.NO.44 of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO.44 of 1999 Date of decision:3rd August, 2009 Municipal Council, Sonepat through its Executive Officer and others .....Appellants Versus Dei Ram and another ......Respondents Before: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Ms. Monika Sharma, Advocate for Mr. P.K.Mutneja, Advocate for the appellants. Mr. R.N.Lohan, Advocate for respondent no. 1. Rajive Bhalla, J. The Municipal Council, Sonepat, challenges the judgment and decree dated 8.10.1998, passed by the District Judge, Sonepat, accepting the appeal filed by respondent no.1, setting aside the judgment and decree dated 15.06.1998, passed by the Civil Judge (Senior Division), Sonepat and as a result, decreeing the suit and directing the Municipal Council to correct respondent's no. 1's date of birth from 8.11.1936 to 30.05.1938. The plaintiff-respondent no.1 filed a suit praying for correction of his date of birth, from 8.11.1936 to 30.05.1938. Respondent no. 1 placed reliance upon a birth certificate Ex.P-1, issued by the C.M.O. Sonepat and entries in the Chowkidara R.S.A.NO.44 of 1999 2 register. The appellants filed a written statement, pleading amongst others that the court should not entertain the suit, as the date of birth voluntarily furnished while joining service, could not be corrected after 36 years. It was also pleaded that as the plaintiff-respondent no.1 had retired on 30.11.1994, he could not claim any relief. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether the plaintiff is entitled for a decree of mandatory injunction, as alleged? OPP. 2. Whether the plaintiff has no locus-standi to file the present suit? OPD. 3. Whether the civil court has got no jurisdiction to entertain and try the present suit? OPD. 4. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court dismissed the suit by holding that the birth certificate Ex.P-1, was unreliable, as it related to one Siri Ram. It was also held that the suit was not maintainable, after 36 years. Aggrieved by the aforementioned judgment and decree, respondent no.1 filed an appeal. Vide judgment and decree dated 8.10.1998, the District Judge, Sonepat, accepted R.S.A.NO.44 of 1999 3 the appeal, set aside the judgment and decree passed by the trial court and decreed the suit. The first appellate court held that the birth certificate issued by the C.M.O., Ex.P-1 stands corroborated by an entry in chowkidara register, Ex. P-2. It was also held that though the certificate is in the name of one Siri Ram, respondent no.1 has proved that during his childhood he was known as Siri Ram. Counsel for the appellants submits that the first appellate court committed a fundamental error, while accepting the appeal and reversing the judgment and decree passed by the trial court as the suit for correction of the date of birth, filed after 36 years, was clearly barred by time. The explanation for the delay, that the respondent no. 1 was informed by a neighbour of his correct date of birth is false and should have been rejected. It is further submitted that the birth certificate and the Chowkidara Register refer to one Siri Ram whereas the name of respondent no. 1, is Dei Ram. The oral evidence adduced by respondent no. 1 to explain this error, should have been rejected. It is further argued that a presumption of truth is attached to an official document in its entirety and in the case of an error, it has to be corrected by the authority concerned. It is, therefore, submitted that in view of the errors committed by the first appellate court, the following substantial questions of law arise for consideration:- “1. Whether a declaration can be issued, and a decree passed, correcting the date of birth after a period of 36 years? R.S.A.NO.44 of 1999 4 2. Whether in the absence of any documentary evidence that the respondent was known as Siri Ram, the first appellate court could have placed reliance upon the birth certificate Ex. P-1?” Counsel for respondent no. 1, on the other hand, submits that the birth certificate and the entry in the chowkidara register, clearly prove that the date of birth furnished at the time of entry into service is incorrect. Delay by itself, cannot be a ground to dismiss the suit particularly when unimpeachable evidence has been led to prove the correct date of birth. It is further argued that the first appellate court rightly held that limitation, if any, would commence from the date of knowledge and as the suit has been filed within limitation from the date of knowledge, the suit cannot be dismissed as barred by time. I have counsel for the parties and perused the impugned judgment. While joining service, in the year 1959, respondent no.1, entered his date of birth as 8.11.1936. For nearly four decades, respondent no.1 remained silent. After his retirement, he filed an application before the Deputy Commissioner, Sonepat, for correction of his date of birth from 8.11.1936 to 30.05.1938. Upon rejection of his application, he approached the Director, Local Bodies, Haryana, who accepted his appeal and directed correction of his date of birth entry from 8.11.1936 to R.S.A.NO.44 of 1999 5 30.05.1938. The Municipal Council filed an appeal before the Commissioner-cum-Secretary, Local Bodies, Haryana. The appeal was accepted and the order passed by the Director, Local Bodies, Haryana was set aside. The first substantial question of law that arises for consideration is whether a suit for declaration to correct a date of birth entry can be filed after 36 years. Belated claims for alteration in the date of birth cannot be entertained except in exceptional circumstances and then also if the evidence produced is of unimpeachable authenticity. A suit for correction of date of birth should be filed within the period prescribed by departmental rules and where no such period is prescribed then within reasonable time. It would be necessary to emphasise that corrections of date of birth tend to disturb seniority, hamper promotional aspirations of other employees, alter salaries and retiral benefits, to name only a few of the complications that may arise. It may also lead to a peculiar situation where after correction of the date of birth a person may not fulfill the minimum age prescribed for entry into service. Reference would necessarily have to be made to a judgment of the Hon'ble Supreme Court, “State of Gujarat and others Versus Vali Mohd. Dosabhai Sindhi” (2006) 6 Supreme Court Cases 537. A relevant extract thereof, reads as follows:- “An application for correction of the date of birth should not be dealt with by the R.S.A.NO.44 of 1999 6 courts, the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such 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 the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue R.S.A.NO.44 of 1999 7 a direction or make a declaration on the basis of materials which make such claim only plausible. 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 application must be 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 of his date of birth in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by R.S.A.NO.44 of 1999 8 virtue of interim orders, they continue for moths, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior.” “G.M.Bharat Coking Coal Ltd., West Bengal Versus Shib Kumar Dushad and others” (2000) 8 Supreme Court Cases 696(relevant extract):- “The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be R.S.A.NO.44 of 1999 9 accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature. We are constrained to make this observation as we find that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not R.S.A.NO.44 of 1999 10 materialise, on account of which the junior denied promotion which he has all along been led to believe will be his due on the retirement of the senior.” The first question of law is, therefore, answered by holding that a suit for change of a date of birth entry, has to be filed within the period prescribed by relevant rules, and if no such period is prescribed, then within reasonable time. Respondent no.1 entered service in 1959 and chose to remain silent for more than three and a half decades. He availed seniority, promotion and all other service benefits, on the basis of this entry. The delay of more than three and a half decades in initiating proceedings for correction of his birth entry, cannot be countenanced. The story that after his retirement he visited his village and was informed of his true date of birth by a neighbour does not appeal to reason. Even otherwise, this so called neighbour has not been examined as a witness. Furthermore, it is difficult to believe that the appellant who was employed in the Municipal Council, Sonepat, did not visit his village, which is in the adjoining District of Panipat, during this period of more than three decades and it was only in the year 1992 that a neighbour informed him of his true date of birth. The explanation for this inordinate delay of more than three decades is, in my opinion, a crude attempt to explain the unexplainable. It would therefore, have to be held that the first appellate court committed an error, in disregarding the inordinate delay and R.S.A.NO.44 of 1999 11 holding that the suit was within limitation from the date of knowledge. The suit was clearly barred by time and should therefore, have been dismissed. The second question relates to relevance of the birth certificate Ex. P-1. The certificate and the entry in the chowkidara register record the birth of one Siri Ram. Respondent no. 1 bears the name Dei Ram. As a rule of evidenciary prudence, a document produced from official record, is accepted by courts, as evidence of the fact it seeks to record. Where however, a doubt arises as to the correctness of an entry, oral evidence to explain such an error can only be accepted, if it is unimpeachable. Respondent no. 1 has produced oral evidence in the shape of the depositions of PW-3 and PW-4 who have deposed that during his childhood respondent no.1 was known by both names i.e. Dei Ram and Siri Ram. The first appellate court has accepted their depositions and held that the certificate and the entry in the chowkidara register and certificate relate to respondent no. 1. The first appellate court ignored the absence of any reliable documentary evidence in the shape of school enrolment form, school leaving certificate or the deposition of some relative and therefore, these depositions should, have been ruled out of consideration being statements procured by respondent no. 1, to explain the error in the birth certificate. In view of what has been stated hereinabove, the appeal is allowed, the judgment and decree passed by the District Judge, Sonepat, is set aside, and that of the Civil Judge R.S.A.NO.44 of 1999 12 (Senior Division), Sonepat, is restored and the suit is dismissed with no order as to costs. [RAJIVE BHALLA] JUDGE 3rd August, 2009 SKaushik