^^ .0^ COURT OF CHHATTISGARH AT BILASPUR DIVSSION BENCH - SHRS RAJEEV GUPTA, C.J. HON'BLE SHRS SUNIL KUMAR SINHA, J. WritADDealNo.114/2068 Appeliant c-,.;1 Respondents ^•--. •Sy Smt Agarbatl Bai aged about 61 years, W/o Dukaluram R/o Pandit Jawahar Lai Nehru Hospital and Research Centre, Sector - 9, Bhllai Nagar, Distt Durg at present R/o Ward No.3, Viiiage and Tahsii Gunderdehi, Distt Durg Versus Joint Director, IVIedicai and Health Servlce, Pandit Jawahar La! Nehru Hospital and Research Centre, Sector 9 Bhital Ispat Yantra, Bhiiai Nagar, Distt Durg (CG) Managlng Director, Steel Authority of India, Bhilai tspat Yantra, Bhitai Nagar, Distt Durg. _ApoeaS underSectlon 2 (1i of the Hiah Court_of Chhattssaarh (AppeaS to Divlsion Bench) Act. 2006 : Shn Parag Kotecha, counsej forthe appeilant. Shri Adii Minhaz, counsel for therespondents. . (19th June, 2008) The foilowing judgment of the Court was passed by Rajeev Gupta, C.J. Learned counse! forthe partles are heard onadmission. ^L Q 2) Appellant - Smt Agarbati Bai has fiied this writ appeal agalnst the order dated 28.04.2008 passed in writ petition No.2480/2003. 3} The appellant/petitioner had fi!ed the writ petition seeklng a dedaration that the petitioner's date pf birth was 09.02.1947. The petitioner was aiso seeking quaghing of the notice dated 11th and 12th of March, 2003, retiring the petitioner from servlce w.e.f.31.08.2003 on attaining the age of superannuation. ' ' '. • , . 4) The appeilant joined the servlces withthe respondents in the year 1972 as Hospitai Attendant (Sanitary) Grade II. in the appelSant's service records, her date of birth was recorded as 13.08.1943. As the appellant was to complete 60 years of age on 12.08.2003, the respondents served a notice dated 11mand 12th of March, 2003, informing her of her retirement from her services w.e.f.31.08.2003. After receiving the above notice, the appeiiant sought correctlon of her date of birth from 13.08.1943 to 09.02.1947. 5) Learned Singie Judge on a thorough consideration of the submissions of iearned counse! forthe parties did not find any substance in the submissions advanced on behalf of the petitioner and therefore, passed the impuaned order dated 28:04.2008, whereby the appelEant's writ petition was dismlssed. 6) Shri Parag Kotecha, iearned counsei for the appellant vehemently argued that as t'ne appellant was an illiterate iady, the respondents ought to have. corrected her .date of blrth from ^^ (L. IT c'. 13.08.1943 to 09.02,1 947. Learned counsef further submitted that Singie Judge erred in not giving due weight to the certificate issued by the Registrar, Births and deaths, certifying that the appellant's date of birth was 09.02.1947. 7) The Apex Court in the cass of State of UP and others reported jn 2QQ3 (6) SCC 483 observed in 8 & 9: "Para - 8 Normaily, • In pubHc .serytoe, wlth entering Into the s'srvice, even the of exit, wh1.ch is as the date of superannuatlon or retirement, is aiso fixed. That is why the of birth is recorded in the relevant register or servlce-book, reiating to the individual concerned. Thls is the practice preva!ent in ali services, because every service has fixed the age of retlrement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about thelr records, by elther invoking the jurisdiction of the High Coyrt under Articie 226 of the Constitutlon of India or by filing applications before the Administrative Tribunais concerned, or even fjling suits for adjudication as to whether the dates of birth recorded were correct or not. Para - 9 Most ofthe States have framedstatutory rules or In absence thereof issued administrative instructions as ' to how a clajm made by a public ser/ant in respect of correctionof his date of birth in the servjce record Is to be deait with and what procedure is to be foilowed. In many such rules a period has been prescribed v^ithin which If any pubiic servant makes any grievance in respect of error in the recording of his date of birth, the appiicatlon for that purpose can be entertained, the so!e object of such rules being that any such claim regarding correction of the date of blrth shouid not be made or entertained after decades, sspecially on the eve of superannuation of such entertained after decades, espedally on the eve of superannuation of such public servant. fn the case of State of Assam Vs Daksha Prasad Deka reported In 1970 (3) SCC 624 this Court 4 ^fi/ "\^ '.L^,, ^-- ^...- ••. said (at SCC pp 625-26, para4) that the date of eompulsory retirement "must in our judgment, be determlned on the basis of the service recordand not on what the respondent claimed to be his date of birth, uniess the servlce record is first corrected consjstently with the appropriate procedure". in the case of Govt of AP Vs M Hayagreev Sarma reported in 1990 (2) SCC 682 the AP Public Employment (Recording and Alteration of Date of Birth) Ruies, 1984 were considered. The public servant concerned had cialmed correction of his date of birth with reference to the births - and - deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Adminjstrative Tribunai corrected the date of birth as cjaimed by the petitioner before the Tribunal, in vlew of the entry in the births - deaths register ignoring the Rules framed by the State Government referred to above. it was inter alla observed by this Court: (SCC p685pars7) "7. The object underlying Ruie 4 is to avoid repeated appfications by a govemment emptoyee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the ruies applicable to him and ifthat entry had become final under the ruies prior to the commencement of 1984 Ruies, he will not be entitied for ait.eration of his date of birth." In Executlve Engineer Vs Rangadhar malllk reported in 1993 Supp (1) SCC 763 Ruie 65 of the Orissa Generai Finance Rules was examined which provia'es that representation made for correction of date of birth near about the time of superannuation shall not be entertained. The respondent in that case was appointed on 16.11.1968. On 9.9.1986, for the first time, he made a representation for changing hls date of birth in his service register. The Tribunaf issued a direction as sought for by the respondent. This Court set aside the order of the Tribunai saying that the claim of the respondent that his date of birth was 27.11.1938 instead of 27.11.1928 shouid not have been accepted on the basis of the documents produced in support bf the said claim, because the dateof birth was recorded as per the document produced by the said respondent at the time of his appointment and he had also put his signature In the service roi! accepting his date of birth as 27.11.1928. The said respondent did not take any step "»»- •^ 5 s ^" L (-:.. nor made any representation for correcting his date of birth tlll 9.9.1986. In the case of Union of India Vs Harnam Singh reported in 1993 (2) SCC 162 the position in law was again reiterated and it was observed : (SCC p 167, para 7) "7.A government servant who has deciared his age at the initial stage of the employment is, of course, not precluded from making a request late on for correcting his age. it is open to a civil servant to claim correction of his date of birth, if he is in possessjon of irrefutabie proof reiating to his date of birth as different from the one eariier recorded and even If there is no period of iimitation prescribed for seeklng correction of date of birth, the government servant must do so without any unreasonable delay." An appijcation for correction of the date of birth should not be dealt with by the courts, Tribunals or the High Court keeping in view only the public servant concerned. It need not be polnted out that any such direction for correction of the date of birth of the pubiic servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotlons are affected in this process. Some are Jikeiy to suffer irreparabie 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 forever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his jmmediate senior. This is certalniy an important and relevant aspect, which cannot be lost sight of by the court or the Tribunal whiie examining the grievance of a public servant in respect of CQrrection of his date of birth. As such, ynless a ciear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too wlthin a reasonable time as provided jn the rules governlng the service, the court or the Tribuna! shoutd not issue a direction or make a declaration on the basis of materials which make such ciaim only plausible. Before any such direction is issued or declaration made, the court or the Tribunal must be futly satisfied that there has been real injustice to the person concerned and his claim for correction of the date of birth has been made in accordance with the procedure prescribed, and within the time flxed by any ruies or order. if no rule or order has been framed or made, prescriblng the period within whlch such application has 6 ^^- to be fiied, then such application must be within at least a reasonabie time. The appiicant has to produce the evidence insupport of such claim, which may amount to irrefutable proof relatlng 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 hls 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 Trlbunat on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service-books. By this process, it has come to the notlce of this Court that in many cases, even if uitimatejy their appfications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the Tribuna! must, therefore, be siow in granting an interim reiief 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 ifhe fails, he wouid have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediatejunior." 8) Admittedly, the appeliant joined the respondents' service in the year 1972. During the period of about 25 years in service, no attempt was made by the appellant for getting her date of birth corrected. The appeliant, for the first time, after receiving the notice of her retirement in the year 2003, sought correction of her date of birth. We, therefore, do not find any infirmity in the impugned order, which may warrant interference in this writ appeal. 9) The writ appeal, therefore, is liable to be dismissed and is hereby dismissed summarily. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge padma