Satya vs State Of H.P.& Ors

Jyotsna Rewal Dua , J

The petitioner seeks correction in her date of birth on the basis of a decree passed by the learned Civil Court in her favour, which has been implemented by the Himachal Pradesh Board of School Education by correcting petitioner’s date of birth in her matriculation certificate.

The petitioner was appointed as Junior Engineer in the respondent-Jal Shakti Vibhag on 25.04.2000. At that time, she declared her date of birth as 06.01.1969, which was also her date of birth as recorded in her matriculation certificate issued by the H.P.Board of School Education Dharamshala. Petitioner instituted Civil Suit No.555/2015 on 25.02.2015 for declaration against the H.P Board of School Education/defendant to the effect that her date of birth was 24.10.1969 and not 06.01.1969 as recorded in her matriculation certificate issued by the Board. The defendant-Board did not contest the civil suit. It was proceeded against ex-parte. Vide judgment and decree dated 15.06.2015, petitioner’s civil suit was decreed, her correct date of birth was declared as 24.10.1969. The decree was implemented by the defendant-Board and fresh matriculation certificate was issued to the petitioner on 29.09.2015. On that basis, the petitioner submitted representation to her employer on 05.07.2017 for correcting her date of birth in the service record from 06.01.1969 to 24.10.1969. The representation was rejected on 26.07.2017. Despite rejection of petitioner’s representation, she again represented to the respondents on 20.09.2022 seeking rectification in her service record. Her representation was once again turned down on 11.04.2023/19.05.2023.

In the above background, the petitioner has instituted this writ petition seeking following substantive relief:-

“(i) That by way of writ of certiorari the office order dated 11/04/2023 (Annexure P9) and 19/05/2023 (Annexure P10) passed by respondent no. 1 and 2 may kindly be set aside and quashed.

ii. That a writ in the nature of mandamus may kindly be issued against the respondents who may be directed to enter the correct date of Birth of the petitioner as 24/10/1969 instead of wrong entry of 06/01/1969 in the service book of the petitioner in terms of the fresh matriculation certificate issued by the H.P. Board of School Education H.P. while complying the judgment and decree dated 15/06/2015 passed by Ld. Civil Judge, Senior Division Mandi H.P. in Civil Suit no. 555/2015 with all consequential benefits flowing therefrom.”

I have heard learned counsel for the petitioner and learned Deputy Advocate General for the respondents.

3(i) The contention urged by learned counsel for the petitioner is that the petitioner had represented to the respondents on 30.03.2002, which was diarized bearing Diary No.3144 seeking correction in her date of birth, therefore, there had been no delay on the part of the petitioner. She had represented immediately after joining the respondent-department. The case of the petitioner was kept pending by the respondents. The respondents advised the petitioner to get decree from the Civil Court in her favour concerning her correct date of birth. It was for this reason, the petitioner had instituted the civil suit, which was decreed in her favour. The respondents are, therefore, bound to correct the date of birth entry in petitioner’s service record in terms of the decree passed by the Civil Court more particularly when the decree has been implemented by the defendant therein-the H.P. Board of School Education.

3(ii) Learned Deputy Advocate General submitted that pursuant to the order passed in this writ petition on 24.05.2024, the respondents had placed on record instructions dated 12.07.2024. In terms of these instructions no such record of representation dated 30.03.2002 alleged to have been submitted by the petitioner was traceable in the office of respondent No.2. The diary number furnished by the petitioner was also not traced in the diary section of the Registrar Jal Shakti Vibhag. Relevant portion from the letter addressed by respondent No.2 to respondent No.1 on 11.07.2024, which is the basis of instructions dated 12.07.2024, reads as under:-

“The Additional Chief Secretary (JS), to the Govt. of H.P. Shimla-2.

Subject:- CWP No. 6988/2023 titled as Satya (E.E.) Vs. State of H.P. & Ors.

Sir,

Kindly refer to the subject cited matter. In this connection, it is intimated that the Superintending Engineer, P&I-I Jal Shakti Bhawan, Tutikandi Shimla-5 was asked to supply the copy of representation and its status as diarized in his office vide diary No. 3144 dated 30.03.2002. But, the Superintending Engineer P&I-I Jal Shakti Bhawan, Tutikandi Shimla-5 has Intimated that no record to the aforesaid matter is traceable in his office. Further, the aforesaid diary No. has also not been traced out in the diary section of the Registrar (J5V).

This is for kind information and further necessary action in the matter please.

Encls:-As above.”

Learned Deputy Advocate General further submits that in view of delay on part of the petitioner seeking to rectify her date of birth in service record, relief cannot be allowed to the petitioner merely on the basis of decree passed by learned Civil Court 17 years after her joining the employment with the respondents.

Consideration

4(i) Petitioner’s representation dated 30.03.2002 is not part of the case record. The respondents have denied receiving this representation. Specific instructions (extracted above) placed on record are to the effect that neither any representation dated 30.03.2002 nor the diary number thereupon as furnished by the petitioner is traceable in their office. There is no counter from the petitioner to the aforesaid instructions placed on record by the respondents.

4(ii) Petitioner has not even demonstrated as to why she took 15 years to institute the civil suit for declaring her date of birth as 24.10.1969.

4(iii) Respondents (employer) were not impleaded as parties in the civil suit instituted by the petitioner for declaring 24.10.1969 as her correct date of birth. The sole defendant- impleaded by her i.e. the H.P. Board of School Education was proceeded against ex parte. It did not contest the civil suit. The petitioner cannot bind her employer/respondents with the judgment and decree dated 15.06.2015, in which the respondents had not been even impleaded as parties. In Laxmi Singh Verma Vs. H.P. Board of School Education CWP No. 1227/2021 decided on 14.12.2021, it was held that decree by the Civil Court against the Education Board directing correction of date of birth in the educational certificate will not entitle the employee to get his date of birth as entered in the service record corrected on that basis.

4(iv) The first time, the petitioner represented to the respondents seeking correction in her date of birth was on 05.07.2017 i.e. 17 years after her employment with the respondents.

Reliance placed by learned counsel for the petitioner upon decision in State of H.P. & Anr. Vs. P.C. Sharma CWP No. 1320/2016 decided on 09.12.2019 is misplaced. Facts of that case were different. Petitioner there had been successful in his legal pursuit in CWP(T) No. 10716/2008 for getting his date of birth corrected in the service record. The question of delay & laches in the facts of that case was answered in petitoner’s favour. The decision had attained finality. Despite this, respondents had rejected petitioner’s prayer for correcting his date of birth in service record, thereby compelling him to initiate second round of litigation.

4(v) Note 6 of Fundamental Rules 56 provides that date of retirement of a Government servant, be it 58 years or 60 years, as the case may be, has to be determined with reference to date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School Certificate or extracts from the Birth Register. The Note further provides that the date of birth so declared by the Government servant and accepted by the appropriate authority, shall not be subject to any alteration except as specified in this note, as under: -

“Note 6-

(a) a request in this regard is made within five years of his entry into Government service;

(b) It is clearly established that a genuine bona fide mistake has occurred; and

(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date of which he first appeared at such examination or on the date on which he entered Government service.”

Clause 7.1 of Chapter VII of Himachal Pradesh Financial Rules, 1971, provides that declaration of age made by the employee at the time of or for the purpose of entry into government service be deemed to be conclusive unless the employee applies for correction of his recorded age within two years from the date of his entry into the government service. Clause 7.1(d) of Chapter VII reads thus: -

“(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 Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of services of a gazette.

Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.

(2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an inquiry shall be made to ascertain his correct age and reference shall be made in all available sources of information such as certified copies of entries in the

Municipal birth register, University or School age certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate is available, the date of birth recorded in the certificate will be deemed to be the correct age.

(3) The result of every such inquiry should in the case of Gazetted/Non Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should be reported to the Accountant General.”

In Bharat Coking Coal Limited and others Versus Shyam Kishore Singh (2020) 3 Supreme Court Cases 411, the Hon’ble Apex Court held that request for change of date of birth in the service records at the fag end of service after accepting the same to be correct during service, cannot be entertained. Even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. Relevant paragraphs of the judgment read as under: -

“9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble 2010) 14 SCC 423, wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:

“16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri. (2005) 11 SCC 465 In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.

In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal (2005) 11 SCC 477 relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

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These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran 1994 Supp (1) SCC 155 reads as under:

“7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. 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 promotion forever. … 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. … the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.”

This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas(2011) 9 SCC 664, it is held as hereunder;

“8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh) (1993) 2 SCC 162

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Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.”

The above principles were reiterated by the Hon’ble Apex Court in Karnataka Rural Infrastructure Development Limited versus T.P. Nataraja and others (2021) 11 SCALE 110, wherein after considering its previous pronouncements on the subject, the law on change of date of birth was summarized as under: -

“10. Considering the aforesaid decisions of this Court in law on change of date of birth can be summarized as under: -

(i) application for change of date of birth can only be as per the relevant provisions/ regulations applicable;

(ii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.

Therefore, applying the law laid down by this Court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law.”

The above exposition of law is squarely applicable to the facts of the instant case. Petitioner had joined the service on 25.04.2000. At the time of joining the service, she had herself produced her matriculation certificate, on the basis of which, 06.01.1969 was entered as petitioner’s date of birth in her service-book. Therefore in view of above, merely on the basis of petitioner representing to the respondents for the first time in the year 2017 i.e. after 17 years of her joining seeking correction in date of birth, her date of birth cannot be corrected. This recourse is even otherwise impermissible under the Fundamental Rules as well as the under H. P. Financial Rules. Petitioner cannot bind the respondents with the judgment & decree dated 15.06.2015 wherein they were not even impleaded and who are governed by their own set of Rules/Regulations etc. on the subject.

Consequently, there is no merit in the present writ petition. The same is accordingly dismissed alongwith pending miscellaneous application(s), if any.