Dhani Ram Chaudhary vs State of Haryana and Another

J.S. Khehar, J.—The petitioner was inducted into the service of the Public Health Branch, Haryana, as a Sub Divisional Engineer, on 29.9.1970. At the time of his entry into service, his date of birth was depicted as 12.2.1947. According to the learned counsel for the petitioner, the aforesaid date of birth was recorded in the service book of the petitioner on the basis of the educational certificates possessed by him, wherein 12.2.1947 was recorded as the date of his birth.

It is the case of the petitioner, that during the process of obtaining certified copies of certain revenue record, the petitioner came to know that the date of his birth recorded in the birth certificate maintained under the Births, Deaths and Marriages Registration Act, 1886, was 6.11.1947. On realising the aforesaid date of birth as his genuine date of birth, the petitioner served a legal notice dated 10.3.2004, requiring the respondents to effect a change in the service book so as to substitute 6.11.1947 as his rightful date of birth (which was depicted in the birth certificate) as against 12.2.1947, which has been recorded therein on the basis of the educational certificates possessed by the petitioner.

So far as the present controversy is concerned, the claim of the petitioner for changing the entry of his date of birth in his service record, shall have to be governed by the conditions of service in connection therewith, namely, as expressed in Appendix ''A'' of the Punjab Financial Rules, Volume-I, Chapter VII, referable to Rule 2.5 of the Punjab Civil Services Rules, Volume-I, Chapter II. The relevant rule to be taken into consideration while adjudicating upon the claim of the petitioner, is narrated hereunder:-

" 1. In regard to the date of birth a declaration of age made at the time of, or for the purpose of entry into Government service, shall as against the Government employee in question, be deemed to be conclusive unless he applied for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of Government employee at any time against the interest of that Government employee when it is satisfied that the age recorded in his service book or in the History of services of a Gazetted Government employee is incorrect and has been incorrectly recorded with the object that the Government employee may derive some unfair advantage therefrom."

A perusal of the aforesaid rule, lays down that the date of birth in service record of a government employee can be altered/corrected subject to the employee making an application in this behalf, within two years from the date of his entry into service. Admittedly, the petitioner entered into service as Sub Divisional Engineer on 29.9.1970, whereas a request for the change of date of birth was made, for the first time, through a legal notice dated 10.3.2004 i.e. well after the stipulated period under the aforesaid rule.

Despite the mandate of the rule extracted above, whereby an entry in respect of date of birth can be altered within two years from the date on which a government employee enters into service, learned counsel for the petitioner relies on a number of judgments of this Court in order to substantiate his claim. Reliance in this behalf was, first of all, placed on a decision rendered in Jaswinder Singh and Ors. v. Baljinder Singh and Ors. 2004 (2) HRR 230, wherein this Court concluded that an entry made in the birth certificate maintained under the Births, Deaths and Marriage Registration Act, 1886, was affirmative of the actual date of birth of an individual. That indeed is so however, the determination of this Court in Jaswinder Singh''s case (supra) is not applicable to the controversy in hand on account of the fact, that the aforesaid judgment did not relate to the change of date of birth in the service record of a government employee, based on the entry made in the birth register.

Reliance was then placed by the learned counsel for the petitioner on the judgment rendered by this Court in State of Haryana v. Chander Singh alias Chander Bhan (1988) 94 PLR 264, wherein the rule extracted hereinabove, was interpreted by this Court in the following mannen-

"The main thrust of the argument of Mr. N.K. Kapur appearing for the Advocate- General Haryana was founded upon the provisions of Rule 7.3 of the Punjab Financial Rules, Volume I, namely; that the date of birth of the government servants cannot be altered after more than two years from the date of his entry into government service. The answer to this is however, provided by the judgment of this Court in Hari Parshad Handa v. The State of Punjab (1985) 87 P.L.R. 39 where it was observed:-

"The statement regarding the date of birth made by the employee is based upon his belief and not his personal knowledge. From further information it would always be open to him to show that the statement was incorrect that his date of birth was in fact different from the one earlier stated by him. However, if he has entered into the service fraudulently by misstating his date of birth the question of estoppel would arise and he would be debarred from challenging the correctness of his date of birth. For instance, a man may not be of age to enter a particular service but by wrongly giving his age he may secure employment. Later on he would certainly be estopped from saying that he was of a younger age than the one stated by him at the time of his entry into service. Short of such a fraud or mis-representation there is no rule of estoppel which would debar him from claiming and proving that the date of birth earlier given at the time of his entry into service was not the correct one."

A similar was also recently expressed in R.S.A. No. 2564 of 1987 {State of Punjab v. Jaswant Singh) decided on May 25, 1988."

It is not possible for us to accept the claim of the petitioner on the basis of the judgment rendered by this Court in Chander Singh''s (supra), on account of the fact, that while determining the controversy, this Court in the aforesaid case, did not adjudicate upon the time limit stipulated in the rule under reference.

Learned counsel for the petitioner also placed reliance on another judgment rendered by this Court in Sucha Singh v. Union of India and Ors. 1994 (5) SLR 65, wherein this Court arrived at the conclusion that a writ petition is competent for the change of date of birth. There can be no doubt about the jurisdiction of this Court to entertain a controversy pertaining to the change of date of birth in the service record of a government employee, as has been held in Sucha Singh''s case (supra). However, the same has to be in conformity with statutory rule governing such change of date of birth. The judgment in Sucha Singh''s case (supra) does not refer to statutory rule relating to change of date of birth and as such cannot be taken as a precedent for the determination of controversy in hand.

Reliance was also placed on a judgment rendered by this Court in State of Punjab and Ors. v. Sat Parkash and Anr. 2002 (3) RSJ 32, wherein again, according to the learned counsel for the petitioner, this Court had the occasion to examine the rule extracted hereinabove, and despite the aforesaid rule and the passage of more than two years of the entry of the respondent therein, this Court allowed a change of date of birth. The instant case is clearly inapplicable to the controversy in hand in view of the fact, that the rule extracted hereinabove, was not taken into consideration in view of amendment thereto by a notification dated 21.6.1994, which authorised a government employee, already in service of the State of Punjab, to make a request for alteration of date of birth entered in the service book within three years of the aforesaid amendment. It is, therefore, apparent that the employee in Sat Parkash ''s case (supra), took the benefit of seeking alteration of the date of birth within the time limit stipulated by the aforesaid amendment. For the aforesaid reason, the judgment rendered in Sat Parkash''s case (supra) is also irrelevant to the present controversy.

Learned counsel for the petitioner, last of all, placed reliance on the decision rendered by this Court in Hari Parshad Handa v. State of Punjab and Anr. (1985) 87 P l R 39. In the instant case, the Court, while adjudicating upon the matter, noticed as under:-

"....From further information it would always be open to him to show that the statement was incorrect and his date of birth was in fact different from the one earlier stated by him. However, if he has entered into the service fraudulently by misstating his date of birth the question of estoppel would arise and he would be debarred from challenging the correctness of his date of birth. For instance, a man may not be of age to enter a particular service but by wrongly giving his age he may secure employment. Later on he would certainly be estopped from saying that he was of a younger age than the one stated by him at the time of his entry into service. Short of such a fraud or mis-representation there is no rule of estoppel which would debar him from claiming and proving that the date of birth earlier given at the time of his entry into service was not the correct one...."

On the basis of the aforesaid conclusion, this Court held the appellant, in the case under reference, to be entitled to alteration of the date of birth in the service book. It would be relevant to mention, that the time limit stipulated under the rule extracted hereinabove, was not taken into consideration by this Court while adjudicating upon the controversy in Hari Parshad Handa''s case (supra).

Since the judgments relied upon by the learned counsel for the petitioner, do not deliberate upon the limitation prescribed in the rule extracted above, we are satisfied that the same are inapplicable for adjudicating the claim raised by the petitioner finally. The vires of the rules under reference have not been impugned by the petitioner in the instant writ petition. Accordingly, it is imperative to conclude that the petitioner accepts the aforesaid rule as it presently exists. The rule clearly stipulates that alteration in the date of birth in the service book of a government employee can be sought only within two years from the date of entry into service. Since the alteration, in the instant case, was sought long years beyond the date of entry into service, and just one year before attaining the age of retirement, it is not possible for us to accept the claim of the petitioner. The instant writ petition is, accordingly, dismissed.