Manmohan Singh Liberhan, J.:— Briefly, the facts in this appeal are that the plaintiff Kehar sought a declaration that the order dated 4.3.1983, as well as dated 14.5.1983, passed by the defendants, retiring him from service with effect from 31.5.1983 are illegal and without jurisdiction, as his date of birth had been wrongly recorded as May, 1923, instead of 6.1.1934 The plaintiff claimed that he still continues to be in service. Further, a mandatory injunction was sought directing the defendant not to retire the plaintiff and to pay his emoluments till he attained the age of superannuation in 1994.
2. The defendants controverted the said allegation and contended that the plaintiff was estopped from challenging his date of birth, as it had been entered into by him at the time he joined the service. It was further averred that the plaintiff had no right to get his date of birth corrected in view of the provisions contained in Rules 2.5, i2.2, 12.3, 12.4 and 12.8 of the Punjab Civil Services Rules, Volume I, Part I, read with Chapter VII of the Punjab Financial Rules, Volume I, as applicable to the State of Haryana. He could get his date of birth corrected within two years from the date of joining the service. The retirement was not by way of punishment. It was further contended that in the birth certificate attached by the plaintiff, the name of one Nanku was mentioned, while the plaintiff was known as Kehar son of Sudha, who had been working with the Department. It was further averred that according to the date of birth now claimed by the plaintiff, he was only 16 years 7 months old at the time of his appointment as Beldar on 1.8.1951 and being underage he could not have been so appointed even on work-charge basis. The claim was alleged to be belated and liable to be dismissed. Various other objections were also taken. The trial Court came to the conclusion that the plaintiff had failed to prove that his date of birth was 6.1.1934 and the date of his birth was established to be May, 1923 and therefore, he was retired in accordance with law. Thus the suit of the plaintiff was dismissed.
3. The lower appellate Court re-appraised the oral as well as the documentary evidence and believed the statement of the plaintiff as P.W.1 and his other witnesses and further relied upon the birth certificate produced by the plaintiff. The evidence of the defendants was disbelieved and it was noticed that the plaintiff was an illiterate person. The Lower Appellate Court found that as the date of birth of the plaintiff was 6.1.1934, hence he was not liable to be retired by the impugned orders. The orders of retirement were held to be bad in law. It was directed that the plaintiff should be allowed to continue in service till he attains the age of superannuation, according to his date of birth. The appeal was allowed and the plaintiff's suit was decreed.
4. Counsel for the appellants contends, that according to the birth certificate produced by him the plaintiff was 16 years 7 months old at the time of initial appointment. Thus, his appointment was void as he was minor and under age when appointed. His continuing in the service did not rectify the error or validated the appointment. He further contends that since the plaintiff himself gave his date of birth as May, 1923, he was estopped from claiming the change in the date of birth. In order to support the abovesaid contention, he relied upon Vaidyanath Pd. Sinha v. The State of Bihar (1983(1) S.L.R 613, wherein it has been observed:—
“Undoubtedly he was required to give some year of birth when he was appointed and unless he gave the year of birth which was earlier than 1930, he could not have got the appointment, though it is not justified to suggest that the entry of year of birth in the service book was not made by the petitioner, it may even be that the entry was made by a person who was filling up all the entries in the service book, but it cannot be asserted that the entry was without the knowledge of the petitioner because he was the only person who was deriving benefit from it.”
5. It was observed that the petitioner having concealed his year of birth at the time of entering into service is now precluded from undoing his own perfidy to obtain an unjustified and illegal benefit.” It was further observed that by alteration of the date of birth, the appointment of the petitioner under Police Rules became pre-mature, that is, he could not have been appointed at that time and having once availed of the benefit of the date of birth as entered in his service the petitioner is precluded from questioning that date of birth.
6. Counsel for the respondent contends that the said judgment is not applicable to the facts and circumstances of the case in hand. He contends that there were no rules in 1951 when the plaintiff was employed prescribing the minimum age for Class IV employees. The assertion made by the counsel has not been denied by the counsel for the appellants. Counsel for the respondent further contends that a reading of rule 3.9 of the Punjab Civil Services Rules, Volume II, as well as rule 7.3 of the Punjab Financial Rules leads to an inference that the minimum age for joining the State service was sixteen years, though there was no bar to recruit persons under the age of sixteen years and the only embargo placed was that the service for the purposes of benefits like pension and gratuity etc. shall not be considered before an employee attains the age of sixteen years. I find force in the contention raised by the counsel for the respondent, which further finds support from the judgment cited by him viz. Shri Manak Chand Vaidya v. State of Himachal Pradesh, 1976 (1) S.L.R 402 wherein the same Financial Rules were considered and it was found:—
“A Government servant is entitled to show that the entry made in his service record does not represent his true date of birth. That is a right which flows from his right to continue in service until he reaches the age of superannuation. He is entitled to show that the recorded entry, which determines the date on which he attains age of superannuation, does not reflect the true position and that on its misleading basis he is liable to be retired before he in fact attains the age of superannuation. Shortly put, the erroneous entry will abridge the period during which he is entitled to continue in service. Therefore involved in his right to continue in service is his right to show that the recorded entry of his date of birth is erroneous. If on application made by the Government servant, the Government finds that there is substance in the claim it is bound to give effect to the claim and alter the relevant entry in the service record. If the entry is found to be erroneous it must, in all fairness to the Government servant, be corrected. When such application should be entertained is a matter relating to procedure. A provision determining when the application should be entertained has the effect of limiting the exercise of the right of the Government servant to show that the recorded entry is erroneous. Such limit can be imposed only by a provision having the force of law. If it does not have the force of law and is merely an executive direction without sanction of law, it cannot affect the exercise of the Government servant's right to show that the recorded entry is erroneous. Now, the Government of India decision on which the respondents rely, does not have the status of a statutory rule and, therefore, cannot defeat the legal right of the Government servant mentioned above. So far as it affects the determination of the true date of birth it must be considered ultra vires for the reasons set out above.”
7. Counsel for the respondent further contends that the claim of the plaintiff cannot be countenenced on mere technicalities and relied upon Shri Sohan Singh Bawa v. State of Haryana, 1967 Ct. L.J.942.
8. There is substance in the said contention of the learned counsel for the respondent. The plaintiff was an illiterate villager, who never know anything beyond thumb-marking and was employed only as a Beldar, class IV employee. In the facts and circumstances of the case, it is obvious that the plaintiff was not aware of his date of birth at the youthful age of 16 years when he was initially recruited nor he could imagine the implications of the entries in the service book. He may not even had know of any service book. It was only when a notice of retirement was given to him that he became conscious of his age and made an attempt to find out his real date of birth and produced the certificate with respect to the same.
9. Counsel for the appellants contends that the birth entry has not been connected with the plaintiff inasmuch as in the birth entry the name mentioned is Nanku whereas the plaintiff's name is Kehar son of Sudah. Thus, the birth entry of the plaintiff could not be corrected on the basis of the birth certificate produced. I find no force in the contention raised by the counsel for the appellants as the lower appellate Court, after due appreciation of the oral as well as the documentary evidence, came to the conclusion that the birth entry related to the plaintiff and it was the plaintiff who was known as Nanku in his childhood and Kehar thereafter. No error has been pointed out in the conclusion arrived at by the lower appellate Court with respect to the said fact. I affirm the said finding.
10. In view of my above observatins, I find no force in the appeal and the same is dismissed with costs. Costs Rs. 500/-.
11. Appeal dismissed.