Karam Chand vs State of H.P. and Others

V.K. Ahuja, J.—The present petition under Article 226 of the constitution of India, has been filed by the Petitioner for issuance of a writ in the nature of certiorari quashing the impugned order dated 28.7.2010, Annexure P-5, issued by the Assistant Engineer in regard to the retirement of the Petitioner from the Government service mentioning therein that the date of birth of the Petitioner is 26.7.1950. A notice of the petition was issued to the State.

I have heard the learned Counsel for the parties.

The assertions made by the Petitioner are that his date of birth has been taken as 26.7.1950 on the basis of the Panchayat certificate, whereas his date of birth is 15.4.1952 as recorded in Annexure P-1, school leaving certificate. It is not the case of the 1Whether reporters of Local Papers may be allowed to see the judgment?

Petitioner that at the time of joining of service with the Respondents he had produced this certificate, Annexure P-1, giving his date of birth as 15.4.1952. Thus, it is clear that he accepted the date of birth as per the Panchayat record as 26.7.1950 all along till the date of his retirement in the year 2010 and he challenged it only in the year 2010 when he was due for his retirement and according to the reply submitted by the Respondents, he has already been retired on 31.7.2010. It is, therefore, clear that the Petitioner joined the service with the Respondent as work-charge Beldar on 1.4.1998 and did not challenge the date of birth with the Respondent in the record. He challenged it only when he was due for retirement in the year 2010 and also stands retired on 31.7.2010.

The learned Counsel for the Petitioner has relied upon a decision of the Hon''ble Supreme Court in State of Punjab v. Mohinder Singh, AIR 2005 Supreme Court 1868. It was held therein that in a suit for declaration as to date of birth school records have more probative value than horoscope. It is clear that this question can be considered by the Court as to which of the two certificates is to be preferred only when a suit for declaration was filed by the Petitioner within time and the present question cannot be determined in the writ petition, since it is a question of fact to be proved on record on the basis of evidence led by both the parties. Moreover, in regard to the Government employees they cannot file application at the fag end of their career nearing retirement.

The relevant Rule 7.1 (d) of H.P. Financial Rules referred to in Swami''s Book Compilation placed on record, reads as under:

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

Now a Govt. servant can seek correction of his date of birth within 5 years of his entering into the service.

This question was considered by this Court in State of H.P. and Ors. v. Shiam Lal Sharma, 2008(2) Shim. L.C. 385, wherein it was held by this Court that the application filed after 5 years of joining cannot be considered. This question was also considered by this Court in State of Himachal Pradesh v. Mor Dhawaj, CWP No. 1006 of 2007, decided on 7.4.2008, wherein similar observations were made.

Following the above decisions, it is clear that there is no merit in the petition filed by the Petitioner at the fag end of his service and as such, no relief can be granted in his favour.

In view of the above discussion, I accordingly hold that there is no merit in the writ petition filed by the Petitioner, which is dismissed, so also the pending Miscellaneous application(s), if any.