1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 41 OF 2005 Shri Ramdas Parab resident of Alorna Vaddo, Post Betim, Ecoxim, Bardez-Goa. ... Appellant versus 1. Chief Secretary Government of Goa Secretariat, Porvorim-Goa. 2. Director of Animal Husbandry and Veterinary Services, Government of Goa, Pashu Samvardhan Bhavan, Patto, Panaji, Goa. ... Respondents Shri Sudin Usgaonkar, Advocate for the Appellants. Shri Guru Shirodkar, Government Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 16TH SEPTEMBER, 2010. ORAL JUDGMENT Heard. 2 2. This appeal is filed by the plaintiff in R.C.S. No.99/2001/A against Judgment/Decree dated 30-9-2004 of the learned Additional District Judge, Panaji, by which the suit for declaration and for recovery of money filed by the plaintiff has been dismissed. 3. The parties hereto shall hereinafter be referred to in the names as they appear in the cause title of the suit. 4. The dispute is as regards the date of birth of the plaintiff. The plaintiff entered Government service in the year 1967 as a Watchman, and at that time his date of birth came to be recorded on his service book as 10-3-1943. The plaintiff was promoted as a Peon in the year 1969, and as a Driver in the year 1974. The plaintiff was made to retire on 31-3-2001 at the age of 58 years considering that the plaintiff's date of birth was 10-3-1943. 5. Prior to his retirement on superannuation on 31-3-2010, the plaintiff had filed an application dated 15-10-1997 to the Department where he was employed stating that his date of birth was wrongly recorded as 10-3-1943, and it ought to have been recorded as 10-11-1948. The application was processed by the Department. The plaintiff was informed by letter dated 5-4-2000 that he would be retired at the age of 58 years w.e.f. 31-3-2001. Earlier, the plaintiff was asked by letter dated 3-4-1998 to produce his 3 educational qualification certificate and school leaving certificate but the plaintiff produced only a driving license and further informed the Department that the plaintiff did not have any document of educational qualification certificate or school leaving certificate. In support of his application dated 15-10-1997 for correction of his date of birth as 10-3-1943, the plaintiff produced the birth certificate-Exh.PW1/M. This birth certificate shows that the plaintiff was born on 10-11-1948 but his birth was registered more than a decade later on 5-6-1959. 6. In support of the case, the plaintiff examined himself. The Defendants examined the Director of the Department where the plaintiff was working. 7. The learned trial Court framed four issues and then converted them into one, and answered the same in the negative, and against the plaintiff. In doing so, the learned trial Court referred to F. R. 56 by which the plaintiff was governed and also the decision of the Apex Court in the case of Union of India v. Harnam Singh(1993 AIR SCW 1241) and ultimately concluded that the plaintiff had failed to prove that the date of birth declared by the plaintiff was 10-11-1948, and that on the other hand, the Defendants had proved that the date of birth declared by the plaintiff was 10-3-1943. The learned trial Court also held that by virtue of note 6 below Fundamental Rule 56, the 4 plaintiff was required to get the date corrected within five years from the date of entry into Government service. The learned trial Court, therefore, proceeded to dismiss the suit filed by the plaintiff. 8. Shri Sudin Usgaonkar, learned Counsel appearing on behalf of the plaintiff submits that the plaintiff had discharged his burden that he was born on 10-11-1948 by the production of the said birth certificate, and, therefore the plaintiff could not be retired on 31-3-2001 assuming that the plaintiff's date of birth was 10-3-1943. Shri Usgaonkar, learned Counsel further submits that the Government Memorandum dated 30-11-1979(note 6) which requires that a request for correction of date of birth to be made within five years of the entry into Government service has got to be interpreted as from the date a Government servant gains knowledge that a wrong entry was made in his service record. Learned Counsel submits that there is a presumption of correctness of the birth certificate produced by the plaintiff at Exh.PW1/M that the plaintiff was born on 10-11-1948. 9. On the other hand, Shri G. Shirodkar, learned Government Advocate appearing on behalf of the Respondents submits that the plaintiff took no action for 30 years in applying for correction of his date of birth. Shri Shirodkar further submits that for the purpose of the service record, the service book is the prime document on the basis of which the age is computed, 5 and accordingly a Government servant is retired. Learned Government Advocate further submits that the documents produced by the Defendants including the service book would show that the plaintiff was rightly retired at the age of superannuation i.e. at 58 years on 31-3-2001. 10. In my view, the plaintiff was not entitled to succeed either on facts or on law. No doubt, the plaintiff produced the birth certificate-Exh.PW1/ M which showed the date of birth of the plaintiff as 10-11-1948. If, the plaintiff produced his birth certificate-Exh.PW1/M to prove his date of birth as 10-11-1948, the Defendants also produced various documents including the service book to prove that the date of birth of the plaintiff is 10-3-1943. The service book not only records the birth date as 10-3-1943 but also carries an endorsement that it is attested from the birth certificate. DW1/Nazareth stated that the plaintiff at the time of joining the service had produced his birth certificate and it is with the Department. Learned Counsel submits that an adverse inference ought to be drawn against the Defendants for non production of the said birth certificate. I am not inclined to accept this submission. The endorsement on the service book was made by the then Director in the course of his official duties and therefore the Court is bound to presume that it was regularly performed. There is also an endorsement which further states that the plaintiff was declared medically fit by the Health Officer, Panaji. The Defendants also produced a declaration/option signed by the plaintiff on 6 17-8-1999 which shows that the date of birth given by the plaintiff was 10-3-1943. Learned Counsel submits that the plaintiff who has passed only IV Standard, only signed the same. This submission cannot be accepted. A perusal of the form of option clearly shows that it was filled in and signed by the same person. The Defendants had also produced the Medical Certificate dated 5-4-1967 which shows that at the time of his medical examination for the purpose of joining Government service the plaintiff's age was opined to be 23 years. The Defendants had also produced the driving license produced by the plaintiff which was issued on 2-7-1966, and a letter dated 4-8-2000 from the Assistant Director of Transport which showed that the minimum age for issuance of license was 20 years, and in case the plaintiff was born on 10-11-1948, the plaintiff could not have been issued the said license on 2-7-1966. The plaintiff has not explained whether his birth was registered on an Order from a Magistrate as required under sub-section (3) of Section 13 of the Registration of Births and Deaths Act, 1969. The only document produced by the plaintiff was the said birth certificate issued on 1-10-1997 by which his birth as on 10-11-1948 was registered about 10 years later. The plaintiff when asked to produce documents such as educational qualification certificate, school leaving certificate and driving license chose to produce only the driving license which disproves the case of the plaintiff. The plaintiff who joined as a watchman certainly required minimum educational qualifications and that is standard IV, and nothing had prevented the plaintiff to fortify his case that he 7 was born on 10-11-1948 by producing the educational qualification certificate as well as the school leaving certificate. I find that this is a fit case where an adverse inference has got to be drawn against the plaintiff. As already stated, the driving license produced by the plaintiff does not help him. The service book, the declaration/option dated 17-8-1979, the driving license coupled with the letter of the Assistant Director dated 4-8-2000, which also are public documents were more than sufficient to override or displace the presumption of the birth certificate produced by the plaintiff. All these documents show that the plaintiff could not have been born on 10-11-1948 as contended by him and reflected on the birth certificate produced by the plaintiff. If, the plaintiff had produced one public document to prove his date of birth, Defendants had produced several other such documents to disprove the same. In the circumstances, therefore, the contention of the plaintiff that he was wrongly retired by considering his date of birth as 10-3-1943 could not be accepted. 11. As per notification dated 30-11-1979 which forms part of note 6 below F. R. 56, the date of superannuation is to be reckoned with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School, Higher Secondary, Secondary School Certificate or extracts from birth register and the date of birth so declared by the Government servant, and accepted by the 8 appropriate authority shall not be subject to any alteration except as signed in the said note. The date given by the plaintiff was 10-3-1943, and that was verified from the birth certificate and recorded in the service book. A request for change of name could have been made within five years from the date of the entry into Government service and that could be done in case it was clearly established that a genuine bona fide mistake had occurred. The Apex Court in the case of Union of India v. Harnam Singh(supra) has held that it is competent for the Government to fix a time limit in the Service Rules, after which no application for correctness of date of birth of a Government servant can be entertained, and that a Government servant who makes an application for correctness of the date of birth beyond the time so fixed, therefore cannot claim, as a matter of right, the correctness of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour, and the Courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. The Apex Court further observed that unless the date of birth is altered, the date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Not only the Apex Court laid down the law as regards the period within which the age could be corrected but in a subsequent decision in the case of Union of India v. Kantilal Hematram Pandya(AIR 1995 SC 1349) directed that all 9 the Courts were bound to follow the Judgment of the Apex Court in Union of India v. Harnam Singh(supra). It is therefore obvious that the plaintiff had applied for correction of date of birth beyond the prescribed period of five years and therefore the Government was not bound to consider the correction of his name. The submission that five years have to be reckoned from the date a Government servant comes to know that a wrong entry is made cannot be accepted. 12. Considering the facts of the case, the application for correctness was not only time barred but on merits also was not sustainable. 13. For reasons aforesaid, I find there is no merit in this appeal, and consequently the same is hereby dismissed. N. A. BRITTO, J. RD