Jagir Singh Petitioner v. State Of Punjab And Others S

Rajiv Narain Raina, J.

The petitioner was appointed as Beldar in Sub Division Sidhwan, Ludhiana on 07.07.1980 Thereafter, he was promoted as Gaze Reader at Dilawarpur Kothi Section, Sub Division Raia, Jandiala Division, U.B.D.C Amritsar. He claims that as per school leaving certificate, his date of birth is 02.02.1959 It is contended that date of birth in the Service Book has been recorded as 02.01.1955, though in all the documents such as Adhaar Card, PAN card, Life Insurance Policy, the date of birth of the petitioner is recorded as 02.02.1959

The grievance of the petitioner is that he sought correction of the date of birth by submitting a representation dated 16.07.2014 to respondent No. 3, who forwarded the same to respondent No. 2. He also served a legal notice dated 23.09.2014 but no action has been taken by the respondents so far.

Learned counsel for the petitioner argues that it has come in the knowledge of the petitioner only when he received a letter dated 16.06.2014 requiring him to submit his pension papers that the petitioner is due to retire from service on reaching the age of superannuation 31.01.2015 Petitioner prays for directions to the respondents to correct his date of birth from 02.01.1955 to 02.02.1959 so as to continue him in service till he reaches his ‘actual’ date of retirement.

I am afraid this cannot be ordered at the fag end of service. In the absence of birth certificate issued by public authority, I am of the view that school leaving certificate alone is not sufficient to return a finding that the correct date of birth of the petitioner is 02.02.1959 For almost 34 years, the petitioner has not raised any grievance with respect of his date of birth. The petitioner sought to dispute his date just before his expected date of superannuation as borne from his service book.

Correction of date of birth by Court order just before superannuation is improper and is prejudicial to the rights of others likely to be affected by such change. The principle of non-interference is proliferated in a catena of judgments of the Supreme Court; See inter alia, Secretary and Commissioner, Home Department v. V.R Kirubakaran, 1994 Supp (1) SCC 155, holding that even when correction is allowable in service record in terms of rules, if any, even then there is placed the rider that it should be claimed within reasonable time. In Union Of India v. Harnam Singh, (1993) 2 SCC 162 the Court held that Government is competent to fix period or time limit to entertain claims in the rules and delay and laches is fatal to the action brought to Court. Therefore, directions would not be issued in a case of change of date of birth to prolong service unless there is unimpeachable evidence and injustice would result. Nevertheless, noninterference by Court is ordinarily the normal rule to apply in such cases.

However, a suit for declaration for change of date of birth is maintainable since the claim falls in the expression ‘legal character’ used in section 34 of the Specific Relief Act, 1963. Date of birth is not an event in a person's life but it confers status which makes the relief of declaration of a legal status claimable in Court and the suit would be maintainable provided such relief does not relate to conditions of service in public employment. See, State of Karnataka v. T. Srinivas, AIR 1988 Karnataka 67, (para.18), though the ruling primarily deals with the provisions of the Karnataka State Servants (Determination of Age) Act, 1974 but underlying principles are of general application in the present context.

In State of U.P v. Gulaichi, (2003) 6 SCC 483, in paragraphs 8 and 9 the Supreme Court observed as follows:

“8. Normally, in public service, with entering into the service, even the date of exit, which is said as the 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, 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 their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not”.

“9. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim 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 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…”

An application submitted for correction of date of birth on the verge of retirement shall be summarily rejected is the view taken by the Supreme Court in the following decisions; (i) State of Orissa v. Brahamarbar Senapathi, (1994) 2 SCC 491; (ii) Burn Standard Co. Ltd. v. Dinabandhu Majundar, AIR 1995 SC 1500; (iii) Union Of India v. Ram Suia Sharma., (1996) 7 SCC 421; (iv) G.M, Bharat Coking Coal Ltd. v. Shib Kumar Dushad, (2000) 8 SCC 696; (v) State of Punjab v. S.C Chadha, (2004) 3 SCC 394; (vi) State of U.P v. Shiv Narain Upadhyaya, (2005) 6 SCC 49; (vii) U.P Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465; (viii) State of Uttaranchal v. Pitamber Dutt Semwal, (2005) 11 SCC 477; (ix) Coal India Ltd. v. Ardhendu Bikas Bhattacharjee, (2005) 12 SCC 201; (x) State of Gujarat v. Vali Mohd. Dosabhai Sindhi, (2006) 6 SCC 537; (xi) Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg, (2010) 6 SCC 482. In this last cited ruling the Supreme Court ruled as follows:

“12. 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:

“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 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 may 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.”

13. In Secretary and Commissioner, Home Department v. R. Kirubakaran (supra), this Court considered the question whether the Tamil Nadu Administrative Tribunal had the jurisdiction to entertain an application made by the respondent for correction of his date of birth just before superannuation. While answering the question in negative, the Court observed:

“An application for correction of the date of birth should not be dealt with by 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 their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important 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, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, 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 filed within the time, which can be held to be reasonable. 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 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 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 for 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 merely caused injustice to his immediate junior.”

14. In Union of India v. C. Rama Swamy (supra), (cf. AIR 1997 S.C 2057) this Court, after an in depth analysis of Rule 16-A of All India Services (Death-cum-Retirement Benefits) Rules, 1958, reversed the order passed by Hyderabad Bench of the Central Administrative Tribunal which had directed alteration of the date of birth of the respondent and observed:

“In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.”

15. By applying the ratio of the above noted judgments, we hold that the suit filed by respondent No. 1 for correction of the date of birth recorded in his service book after twelve years of his joining the service was clearly misconceived and the trial Court committed a serious error by passing a decree in favour of respondent No. 1 and the lower appellate Court and the High Court repeated the same error by refusing to set aside the decree passed by the trial Court.”

This Court in its extra ordinary writ jurisdiction would not entertain such a plea for alteration in the date of birth with a view to continue a person beyond the recorded date of birth at the entry point of service when the request is made at the eleventh hour. In Burn Standard Co. Ltd. v. Dinabandhu Majundar (supra) the Supreme Court cautioned:

“The fact that an employee of Govt. or its instrumentality who will be in service for over decades, with no objections whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his service record, the very conduct of non-raising of an objection in the matter by the employee in our view should be a sufficient reason for the High Court not to entertain such applications on grounds of acquiescence undue delay and laches. More-over discretionary jurisdiction of the High Court can refer be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth “service and leave record” could have genuinely waited till the fag end of his service career to get it corrected by availing of the extra-ordinary jurisdiction of a High Court. Therefore, we have no hesitation in holding that ordinarily High Court should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality towards the fag end of his service, seeking correction of his date of birth entered in his” Service and Leave record or Service Register with an avowed object of continuing in service beyond the normal period of his retirement.”

In the light of above judicial precedents, this petition has no weight and is accordingly dismissed in limine.