IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.550 of 2007 1. THE STATE OF BIHAR 2. Director General of Police cum-Inspector General of Police, Government of Bihar, Patna 3. Deputy Inspector General of Police (Personnel) Govt. of Bihar, Patna 4. Senior Superintendent of Police, Patna … (Respondents).. Appellants Versus Md.Anwarul Hassan, son of Md. Nurul Hassan resident of Mohalla Musakchak, P.S. Kotwali, District Bhagalpur ----------- 8 03.05.2011 The present appeal has been filed by the State who was respondents in the writ petition being aggrieved by the order dated 16.09.2005 passed by learned Single Judge in C.W.J.C. No.10634 of 1999 directing the authorities to make necessary correction in the date of birth of the petitioner-respondent herein. It was contended before the learned Single Judge that date of birth of the respondent-petitioner has been recorded in the matriculation certificate as 05.04.1996 but in service book it has been recorded as 14.12.1941. According to petitioner in record his date of birth should be 05.04.1946 in stead of 14.12.1941. It has also been contended before the learned Single Judge that the petitioner-respondent herein was appointed on the post of Literate Constable in the year 1964 2 and his date of birth was recorded in the service records according to his matriculation certificate which was produced by him but some how or the other, the authorities recorded his date of birth as 14.12.1941 as a result of which the respondent was made to retire with effect from 14.12.1941 basing on the date of birth as 14.12.1941 Learned Single Judge had directed the authorities to re-consider the case of the petitioner and to reascertain the date of birth of the petitioner-respondent herein in the light of the observations made by this Court to the effect that the matriculation certificate of the petitioner should be the whole basis for determining the date of his birth. The record shows that the limitation in filing of this appeal was condoned with the consent of the respondent’s counsel. As the record of this case shows that the respondent has already appeared in the appeal on 22.01.2008, through counsel, no notice need be issued to him. Accordingly, the matter has come up for hearing but there is no representation on behalf of the respondent. Learned counsel appearing on behalf of 3 the appellants submitted that as per the Sub- rule (b) of the rule 1041 of Bihar Police Manual a person has to correct his date of birth within a period of ten years and the authority and the person concern has to counter sign on the entry of the date of birth for the reason that the person concerned cannot claim for correction of his date of birth at the fag end of his service. Learned counsel for the appellant has also relied upon the judgment rendered in the case of State of Orissa and others vs. Brahamarbar Senapathi reported in [1994(2)SCC 491] to support his case stating that the rules have to be followed with regard to the fact that the person concern cannot correct the date of birth against the norms on the rules. The rules indicates that the employee has to correct his date of birth within a period of ten years from the date of his entry in the service and there is no material available before this court to prove that respondent- petitioner has made any representation to put his claim within the time prescribed. It is also further contended by the learned counsel appearing on behalf of the 4 appellants that as the person concerned has to counter sign as the entry of the date of birth in the service book he cannot turn down by disputing such entries as per law laid down by the Hon’ble Apex Court in the case of State of T.N. vs. T.V. Venugopal reported in [1994 (6)SCC 302] Reference in this connection may be made to the judgment of the Hon’ble Apex Court rendered in the case of Punjab & Haryana High Court at Chandigarh vs. Megh Raj Garg and another reported in [2010 (4)Supreme 464] wherein it has been held that application for correction of date of birth after retirement of the employees from services cannot be entertained. The relevant paragraph 12 of the aforesaid judgment is quoted herein below: “This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam singh (supra), this Court considered the question whether the employer was justified in declining the respondent’s request for correction of date of birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original application filed by him. While reversing the order of the Tribunal, this Court observed: 5 “A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law 6 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. Unless altered, his 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. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka a public servant my dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC pp. 625 26, Para 4) “… The date of compulsory retirement under F.R. 56(a) must in our judgment be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.” (emphasis supplied) Under the above circumstances as the respondents/petitioner has not chosen to file any representation to take action to correct his date of birth within prescribed time under 7 the rules, therefore, following the law laid down by the Hon’ble Apex Court, we are of the opinion that the order of the learned Single Judge cannot sustain. Accordingly, it is set aside and the L.P.A. is allowed. Ashwini (T.Meena Kumari,J.) (Akhilesh Chandra, J.)