STATE OF PUNJAB AND ORS.

S.L. CHADHA

FEBRUARY 9, 2004

B [DORAi SWAMY RAJU AND ARIJIT PASA YAT, JJ.]

Service Law-Date of birth-Change in-Permissibility of-Delay in applying for-Effect of-Employee applying for change in date of birth several C years after appointment-No contemporaneous document produced-Held, change not permissible.

The respondent joined service under the State Government in 1983.

His date of birth as per the Higher Secondary certificate was 19.6.1944 and in his service book too the date of birth was recorded as 19.6.1944.

D In 1995 he applied for change of his date of birth from 19.6.1944 to 13.12.1945 pursuant to a notification issued in 1994 by the State Government permitting its employees to do so. The Deputy Commissioner allowed the claim of the respondent for change in date of birth but the State Government rejected his claim. The respondent filed writ petition

before the High Court, which was allowed by the High Court.

The State Government filed an appeal before the Court. Allowing the appeal, the Court

HELD: 1.1. An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. Unless a clear case on the basis of clinching 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 a direction or make a declaration on the basis of materials which make such claim only plausible. Before any s_uch direction is issued G or declaration made, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person co!'cerned and his claim for correction of date of birth has been made in accordance with the procedure pr.escribed 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 the within at least H 216

ST ATE v. S. L. CHAD HA 217

a reasonable time. The applicant has to produce the evidence in support A of such claim which may a'!'ount 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.

1222-B-D-FI

State of Assam v. Daksha Prasad Deka, 1197013 SCC 624; Government B of Andhra Pradesh v. M. Hayagreev Sanna, 11990] 2 SCC 682; Executif1e

Engineer Bhadrak (R & B) Division, Orissa and Ors., 119931 Supp. I SCC 763 and Union of India v. Harnam Singh, 1J99312 SCC 162, referred to.

1.2. The Court or the Tribunal must be slow in granting an interim relief or continua.tion in service, unless prima facie evidence of C 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. (222-H; 223-A(

The SecretGJy and Commissioner, Home Department and Ors. v. R. D Kirubakaran, JT (1993) 5 SC 404; State of Tamil Nadu v. T. V. Venugopalan, ( 19941 6 SCC 302 and State of Orissa and Ors. v. Ramnath Patnaik, ( 1997( 5 sec 181, referred to.

2. The High Court was notjustified in interfering with the orders of the Government and directing correction of the date of birth in the service E records of the respondent as now claimed by him. No contemporaneous document was produced to show that the recording of date of birth to be 19.6.1944 was wrong. Merely because in 1994 an opportunity was granted to the Government employees to get their date of birth corrected, that des not take away the effect of inaction and continued silence for more than three decades which de hors laches on his part wouid seriously reflect on F the bonajide nature of the claim itself. (223-G, EJ

CIVIL AP PELLA TE JURISDICTION : Civil Appeal No. 854 of 2004.

From the Judgment and Order dated I0.2.2003 of the Punjab and G Haryana High Court in C.W.P. No. 2170 of 2001.

Sarup Singh, Sr. Addi. Advocate General for State and Jatinder Kumar Bhatia for the Appellants.

R.K. Chopra and Uma Datta for the Respondent.

A The Judgment of the Court was delivered by

.~RIJIT PASAYAT, J. Leave granted.

[2004) 2 S.C.R.

The State of Punjab questions correctness of the judgment rendered by a Division Bench of the Punjab and Haryana High Court, whereby it directed B correction of date of birth of the respondent from 19 .6.1944 as recorded earlier in the official documents to 13.12.1945.

Background facts giving rise to the appeal are as follows:

The respondent joined Punjab Institute of Textile Technology, Amritsar on 11.7.1983. At the time of his entry into services, his date of birth was C recorded as 19.6.1944. In the certificate for Higher Secondary Examination which he passed in the year 1962, his date of birth was recorded as 19.6.1944. ·.He graduated in Science (Textile) in the year 1967. After his initial appointment with Punjab Institute of Textile Technology he subsequently worked as a senior officer in several public sector undertakings like Government Industrial Development cum Service Centre Textile, Ludhiana, National Textile D Corporation Ltd., Delhi, Punjab State Small Industries Corporation Ltd., Haryana and Punjab State Handloom and Textile Development Corporation.

In the service records of all the aforesaid organizations, the date of birth was recorded as 19.6.1944. On 19.1.1993 he was absorbed as Treasury Officer in the Department of Finance (T & A), Punjab, Chandigarh which he subsequently joined. By ri Notification dated 21.6.1994 an amendment was made in the E Punjab Civil Services Rules Vol.I, Part I. In the amended rule it was provided that employees already in service ofthe Punjab Government may apply for change of date of birth, within a period of two years froin coming into force of the amended rules, on the basis of confirmatory documentary evidence. It was also stated in the Notification that no request for change of date of birth F was to be entertained after the expiry of two years period. The rules were further clarified on 10.5.1995 wherein it was provided that the date of birth of any government employee was not be changed without holding a special enquiry to be conducted by the concerned Deputy Commissioner. Respondent submitted his application on 26.7.1995 for changing the date of birth as recorded. The circular dated 10.5.1995 was subsequently kept in abeyance on G. 5.10.1995 and finally withdrawn on 13.12.1995. On LI0.1996 the State

Government issued instructions to the effect that applications received during the period of notification dated 21.6.1994 and the last date till which it was in operation were to be disposed of on merits. The Deputy Commissioner, Jallandhar made enquiries with regard to the application of the respondent for change of date of birth. The Deputy Commissioner by his letter dated'26.3.1997 H informed the Director (T & A) Department of Finance that on the basis of

enquiry conducted the actual date of birth of the respondent to be 13.12.1945 A and not 19.6.1944. However, the Government did not accept the request for change of date of birth and rejected the same by order dated 20. 7.1999.

Initially it was challenged before the High Court by writ petition which was disposed of with the direction to the official respondents to supply a copy of the order which was the basis of the communication dated 20. 7.1999. B The same was supplied to the respondent, who filed a writ petition before the High Court which came to be disposed of by the impugned judgment.

Stand of the respondent-writ petitioner before the High Cou11 was that there was no belated move to get the date of birth corrected. In fact the application was made within, the period indicated in the notification dated C 21.6.1994. Since the Deputy Commissioner concerned was the competent authority to make enquiry and his report was in favour of the respondent, the correction as requested should have been done. The State Government refuted the submissions and took the stand that approach was made more than 3 decades after entry into service. The respondent had served in several organizations and undertakings as noted above without even raising any D shadow of dispute about the correctness of the date of birth as recorded. Ev.en the Higher Secondary Examination Certificate on the basis of which he entered into service, indicated the date of birth to be 19.6.1944. On the basis ofselfserving documents filed by the writ petitioner, the Deputy Commissioner should not have held that the correct date of birth is 13.12.1945 and not L9.6. I 944. The High Court accepted the stand of the respondent-writ petitioner and held that since the report was given by the Deputy Commissioner after making enquiries, the same should have been accepted. As the request for change was made within the period permitted by the amended rules notified by the notification dated 21.6.1994, the writ petitioner was entitled to the relief claimed.

Learned senior counsel appearing for the State of Punjab submitted that the High Court has lost sight of several relevant aspects. It did not even consider the most relevant aspect about raking up a dispute about the date of birth more than three decades after entry into service. Even though in 1994

the rules were amended, no explanation whatsoever has been offered as to G why no grievance was made prior to the amendment of rules. It has also not been shown as to how the entry in Higher Secondary Examination Certificate was wrong. The Deputy Commissioner seems to have relied upon some documents which cannot be considered to precisely prove the date of birth as claimed by the respondent or that they related to him. The report of the Deputy Commissioner was also considered to be perfunctory in the absence H

A of any witnesses examined for the purpose or statements of such persons.

Certificate in F orm-9 was issued on 17 .12.1997 i.e. after the application for correction of date of birth was made. The certificates given by some counsillors are really of no consequence. They were all issued in the year 1996. The respondent has also not placed any material to show as to why and under what circumstances, the Higher Secondary Examination Certificate recorded B the date of birth to be 19.6.1944 if it was not the correct date. Even in the application filed by the respondent while applying for appointment as Treasury Officer, the respondent himself had indicated his date of birth to be 19.6.1944.

Learned counsel for the respondent submitted that the High Court took note of the relevant facts and, accepted the Deputy Commissioner's report as C he was the competent authority and in as much as the amended rules and instructions enabled the respondent to apply for correction of date of birth, the claim cannot be rejected as belated. Therefore, no interference is called for.

Normally, in public service, with entering into the service, even the D date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services,' because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. But, of late E a trend can be noticed, that many public servants, on the eve of their retirement waking up from their supine slumber raise a dispute about their service records, by either invoking the jurisdiction of the High Cou1t under Article 226 of the Constitution of India or by filing applications before the concerned

Administrntive Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not.

F Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a ciaim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in G respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction, of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam v. Daksha Prasad Deka, (1970] 3 SCC 624, this Court said that the date of the compulsory retirement "must H in our judgment, be determined on the basis of the service record and not on

STATE v. S. L. CP.ADHA [PASAYAT, J.) 221

what the respondent claimed to be his date of birth, unless the service record A is first corrected consistently with the appropriate procedure." _In the case of Government of Andhra Pradesh v. M Hayagreev Sarma, (1990] 2 SCC 682 the A.P. Public Employment (Recording and alteration of Date of Birth) Rules, 1984 were considered . The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. B The Andhra Pradesh Administrative Tribunal corrected the date of bi1th as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above. It was inter a/ia observed by this Court:

"The object underlying Rule 4 is to avoid repeated applications by a C government employee 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 rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not D be entitled for alteration of his date of birth."

In Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v Rangadhar Mallik, [1993] Supp. I SCC 763, Rule 65 of the Orissa General Finance Rules, was examined which provides 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 November 16, 1968. On E September 9, 1986, for the first time, he made a representation for changing his date of bi1th in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the Order of the Tribunal saying that the claim of the respondent that his date of birth was November 27, 1938 instead of November 27, 1928 should not have been accepted on F basis of the documents produced in support of the said claim, because the date of birth was recorded as per document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as November 27, 1928. The said respondent did not take any step nor made any representation for correcting his date of birth till September 9, 1986. In case of Union of India v. Harnam Singh, G [ 1993] 2 SCC 162 the position in law was again re-iterated and it was observed:

"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 H

A 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."

. .

An application for correction of the date of birth should not be dealt with by B the Courts, 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 C 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of reirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be D 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 clinching 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 a direction or make a declaration on the basis E 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 F 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 proofrelating 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 G Court or the Tribunal 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 notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation H in service, unless primafacie evidence of unimpeachable character is produced

because if the public servant succeeds, he can always be compensated, but if A he fails, he would have enjoyed undeserved benefit of extended service a.nd thereby caused injustice to his immediate junior.

The position was succinctly stated by this Gourt in the above terms in The Secretary and Commissioner Home Department and Ors. v. R.

Kirubakaran, JT ( 1993) 5 SC 404.

As obseryed by this Court in State of Tamil Nadu v. T. V. Venugopa/an, [1994] 6 SCC 302 and State ofOrissa and Ors. v. Ramanath Patnaik, [1997] 5 sec 181 when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no C consequence. The view expressed in R. Kirubakaran 's case (supra) was adopted.

In the instant case the Higher Secondary Examination Ce11ificate was issued on 3.6.1962. which contained information that the date of birth respondent was only 19.6.1944. If the said certificate disclosed a wrong date, D it is not explained by the respondent as to why he did not make any move to get it corrected at that point or on any one of the occasions when he sought and obtained employment in 7 /8 public institutions. Merely because in 1994 an opportunity was granted to theGovemment employees to get their date of birth corrected, that does not take away the effect of inaction and continued silence for more than three decades, which de hors !aches on his part would E seriously reflect on the bona fide nature of the claim itself. Even in the application made for employment in the year 1992-93 the date of birth was indicated, as noted above to be 19 .6.1944. No contemporaneous document was produced to show that recording of the date of birth to be 19.6.1944 was wrong. Accepting the plea of the respondent would result in two public F records. Educational on one side and service on the other hand reflecting two different and conflicting dates of birth. Such anomalous situations are to be averted and not to be countenanced.

In view of the aforesaid, the inevitable co!lclusion is that the High Court was not justified in interfering with the orders of the Government and G directing correction of the date of birth in the service records of the respondent as now claimed by him. The appeal is allowed but without any order as to costs.

B.K.M.

Appeal al lowed.