Shamsher Singh vs State and others

M.L. Kaul, J.—This Civil First Miscellaneous Appeal owes its origin to a civil suit preferred by the Appellant/Plaintiff in the court of 1st

Additional District Judge Jammu, wherein he prayed for a mandatory injunction commanding the respondents/defendants to make correction of the

Date of Birth of the appellant/plaintiff in his service book that his date of birth is 9.9.1941 and not as 9.3.1936, as recorded in his service book,

and also prohibiting the defendants from retiring the plaintiff on the date of superannuation which is based upon the date of entry recorded in his

service record as 9.3.1936.

With the aforesaid suit, an application for issuance of an interim injunction was preferred in the trial court and upon that application, on trial, the

impugned order dated 22.3.1994 was passed by the trial court, holding that the plaintiff/appellant has neither a prima facie case nor has any

balance of convenience in his favour and also that he will not suffer, by refusal of the interim injunction, any injury that cannot be compensated. His

application for grant of interim relief in allowing turn to continue in service till the suit was disposed of on merits, was accordingly rejected.

It is against the said order dated 22.3.1994 that the present appeal has been filed, contending therein that the trial court has not considered the

affidavits of the responsible persons, like Chowkidar and Lumberdar of the village, showing that the Date of Birth of the appellant was 9.9.1941

and also the Horoscope which provides credence to such evidence, was not taken into consideration while passing the impugned order by the trial

court. The evidence led by the appellant before the trial court was in the form of affidavit/documents and that could be taken into evidence in the

regular course of the trial and the appellant has excellent prima facie case to show that his date of birth is actually 9.9.1941 and not as 9.3.1936, as

recorded in his service book. An enquiry was ordered to be conducted by the respondents in absence of the appellant and the appellant was not

associated in the said enquiry and no opportunity was given to him to produce the evidence and witnesses, if any, hence the enquiry report is

without any credence.

Heard learned counsel for the parties and also have gone through the record of the case minutely.

It is an admitted case of the parties that the Date of Birth of the appellant as per Matriculation Certificate produced by him with the concerned

authorities at the time of his appointment in Electric Department as a Technician, was recorded in his service book as 9.3.1936, for it was the bona

fide proof produced by the appellant on a valid certificate issued by the University. As per his Matriculation Certificate he was born in 9.3.1936,

and this Date of Birth was not afterwards changed by any means, for no efforts, in any manner, were made by the appellant to make a

representation before the University that his Date of Birth was not correctly recorded in the certificate and actually his Date of Birth was 9.9.1941.

The appellant has pleaded that the Date of Birth recorded in his school register as 9.3.1936, has wrongly been recorded and if it was so the

appellant who had remained in government service for about 32 years, could have sought the correction of his date of birth by any of the modes

under law available to him. There is no proof led by the appellant/plaintiff, or otherwise available on the record of the case, that some mistake had

occurred with regard to his Date of Birth in transaction from one school to another and, it appears, that the appellant had been contended with his

Date of Birth, as recorded in the School Register, on the basis of which his Matriculation Certificate was issued, and which in no manner was

challenged by him at any stage.

The argument raised by the learned counsel for the appellant Mr. S.P. Gupta, that in olden times the Date of Birth of the wards was recorded at

random because it was the custom that the parents of the student was not going to the school to provide the correct age of their wards.

No such custom is within the knowledge of this Court, which is prevalent in the State of Jammu & Kashmir and neither any example has been

provided by Mr. Gupta to show that the parents were not attending the School at the time of admission of their children and they were giving the

age of their wards at random.

Be that as it is. The Appellant during the entire service period of 32 years in the Electric Department has never chosen within the said period to get

his age corrected, which according to him, has been wrongly recorded in the School Register.

On perusal of the record, it is found that the appellant has himself claimed in his plaint that his date of birth in the Primary School Plaura was

recorded as 9.3.1936 and after that he got migrated to Middle and High School in Jammu, and his Date of Birth remained the same and nowhere

in transshipment of his record, from one school to another, his Date of Birth is changed and neither he made an attempt for the last 32 years to get

the same corrected. It only struck to the Appellant after reaching the age of superannuation, to get his Date of Birth changed and age extended by

filing a suit in the trial court and get an interim order to the effect that he be not retired till the suit is disposed of on its merits.

For issuance of a temporary injunction it is well said and held that there should be a prima facie case and balance of convenience in favour of the

person seeking such injunction and there should also be apprehension of irreparable loss, which cannot be compensated byway of money, to be

caused to such a person, in case such an interim relief is not granted in his favour. Also there should be natural justice in favour of the person

seeking such an interim order showing that it will be only in the interest of justice that such an order is passed.

In the case on hand, the learned counsel for the appellant, has laid reliance on some Horoscope and some affidavits of some chowkidar and

Lumberdar, to have been filed by him in the trial court to show that the Date of Birth of the appellant was 9.9.1941 and not as 9.3.1936, as

recorded in his service record.

This evidence is rebuttable and it cannot be taken as correct on its face value, unless it is put to scale of tests as provided under the Evidence Act

by the trial court, whereupon the respondents are allowed to rebut it by leading evidence. The Horoscope at the moment has no legal sanctity, for

it has not been issued by some authority which has a legal sanction behind it. Such an issue is to be tried as a matter of fact and its intrinsic value

can be tested on the scale of law of evidence to see that it is the most reliable, probable and cogent evidence as compared to the Matriculation

Certificate issued by the recognized authority in favour of the appellant on the basis of which his service record has been formed. Had the appellant

filed the suit in the earlier years of his service career, there was every likelihood that what he says today might have been given little credence at

that time feeling that his Date of Birth was recorded under some confusion, for his parents were not literate persons.

The appellant passed his Matriculation Examination in 1958 and got appointed in government service in 1961. He remained in service for the

last 32 years and at the fag end of his service career and abruptly he started to say that he was young by five years in his age than as what was

recorded in his service record, that too on the basis of his Matriculation Certificate.

The argument advanced by the learned counsel for the appellant that the parents of the appellant were illiterate people and they had not

accompanied him to the school at the time of his admission, does not carry any weight, for even by the lapse of long time, such an argument of the

learned counsel for the appellant, loses its weight, for the appellant is a bona fide government servant, who knows his rights and duties properly.

Had it been so that his age was wrongly recorded at the time of his admission in the school, he could have definitely made an effort after he

became major and got appointed in government service, to get his Date of Birth rectified by all the legal modes whatever were available to him.

The correction of Date of Birth sought close near to the time of retirement by the Appellant in a suit for declaration alongwith an application for

interim injunction, filed in the trial court, does not entitle him to a temporary injunction because no irreparable loss was likely to be caused to him in

case the injunction sought lit for was not granted. It is pertinent to mention here that while refusing the order of injunction the learned trial court after

hearing the parties and having considered all the relevant documents produced by the parties, has held that the photostat copy of the Horoscope is

not attracted into consideration for it is in the language script which is not the court language. No authenticated transcription or translation of the

Horoscope, was filed before the trial court, showing that as to on what basis the Date of Birth as in the Horoscope was related in it. The learned

trial Judge has been correct in holding that the Horoscope at the moment does not hold any bearing on the merits of the case, when it is fully

established that the Date of Birth recorded in the Matriculation Certificate was made the basis by the respondents for regulating the service book in

favour of the appellant, as to which was the date of superannuation as per the said entry recorded in the service book of the appellant on the basis

of his Matriculation Certificate.

No positive evidence has been led by the appellant at the moment to overawe such recorded Date of Birth, showing that it has not been

correctly recorded in his service book. It is hard to believe that a man of status of the appellant, who is highly educated and holding a very

responsible position, would all of a sudden realise after 32 years of his service, that his date of birth has wrongly been shown in his service book.

That apart, while looking at the documents on the basis of which prima facie a relief is claimed by the appellant, would go a long way to show that

an all out attempt has been made to get the relief by very clever device, of filing a suit in the trial court, alongwith an application for grant of interim

relief.

A catena of case law has been produced by the counsel for the appellant to show that the appellant is entitled to the temporary relief sought

for. In this regard, the learned counsel for the appellant has referred to 1970 K.L.J. 271 and contended that the court has a power to correct the

Date of Birth of a government servant when in appropriate cases it is brought to the notice of the Court that the Date of Birth recorded in a service

record of an employee is not factually correct and such Date of Birth is recorded in ignorance of the true facts and on the basis of authentic proof

filed before the Court, the Court has a power to alter the Date of Birth of a governmental servant.

I had the advantage to go through the aforementioned Division Bench ruling of this Court, wherein it has categorically been held that :

A permanent Govt. servant has a right to be retained in service till he factually attains the age of 55 years and the age once declared cannot

constitute a bar to the reopening of the question and in appropriate case when it is brought to the notice the Govt. that the age recorded is not

factually correct or had given a wrong date of birth in ignorance of true facts and is in possession of authentic proof of his version of the age it has

the power to order the alteration of the date of birth and in such case the Govt. has to make an enquiry in the matter and give an opportunity to

such Govt. servant to prove his actual age.

I will fail in my duty to say at the moment that the appellant has not, in any manner, provided an authentic proof of his version that his date of

birth is 9.9.1941 and not as 9.3.1936, as recorded in his service book. The documents filed by the appellant/plaintiffs, as mentioned above, are

refutable and these can be given evidenciary value after they are put to the test of Evidence Act. Therefore, at the moment, such documents are not

relevant, which can provide any authentic proof in favour of the appellant that his date of birth is 9.9.1941 and not 9.3.1936, as recorded in his

service book.

I am motivated to make mention of A.I.R. 1993 SC 1367, in which the Apex Court of the Count has held that :

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 to 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.

It thus emanates that the appellant/plaintiff who at the time of his initial appointment, has declared his Date of Birth as 9.3.1936, is not, of course,

precluded from making a request for correction of his Date of Birth, but the same is open subject to filing of an irrefutable proof relating to his Date

of Birth, as different from the one earlier recorded in his service book. There has been laches on the part of the appellant to claim correction of his

Date of Birth and that too after putting in 32 years of his service in the Electric Department. As there is a positive proof available with the

respondents/defendants in the form of Matriculation Certificate filed by the appellant/plaintiff to the effect that his Date of Birth is 9.3.1936 and not

9.9.1941. Therefore, unless his Date of Birth is altered by unimpeachable evidence, his Date of Birth as recorded in his service book would

determine his date of superannuation, even if it Mounts to abridging his rights to continue in service on the basis of his actual age.

This principle is again recognised in AIR 1993 S.C. 2647, wherein the Apex court of the Country has held that :

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. 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 the promotion forever. Cases are not unknown when a person accepts appointment

keeping in view the date of retirement of his immediate senior. 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 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.

In view of the above case law, it transpires that the trial Judge had been well within the provisions of law to hold that no prima facie case was

proved by the plaintiff/appellant before him for grant of interim directions allowing him to continue in service. There is no balance of convenience

also in his favour and by refusal of interim directions no irreparable loss or injury would have been caused to the appellant/plaintiff, which can't be

compensated to him, for the fact that the appellant has already reached the age of superannuation, after putting 32 years of his service in the

concerned department, when as per the recorded date of birth as per his matriculation certificate, he has completed 58 years of age. The

plaintiff/appellant had to produce evidence in support of his claim, amounting to irrefutable proof, that his date of birth is 9.9.1941 and not as

9.3.1936, as recorded in his service book. The onus in proving the same was on the plaintiff/appellant that the wrong date of birth had been

recorded in his service book.

It has often been found that many a time greedy people (public servants) approach to the Courts or the Tribunals on the eve of their retirement,

questioning the veracity and correctness of the entries with regard to their date of birth in the service book. By such process, even if ultimately their

petitions get dismissed, but by virtue of interim directions they, however, continue in service for months and years together, after the date of their

superannuation.

It is in this concept of the circumstances, which takes place before the courts, that the Apex Court of the Country in the abovementioned

rulings, have held that the Courts and Tribunals 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 Government 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.

The abovementioned ruling, on all fours, has a direct bearing on the merits of this case and this is one of the cases, where the appellant by intelligent

and clever device has filed a suit with an application for interim relief for extension of his service for five years, when it is established on the basis of

his Matriculation Certificate, except to the trial of his suit by the trial court, that his date of birth is recorded as 9.3.1936 and not as 9.9.1941, as

claimed by him.

At this stage it won't be out of place to mention here that an enquiry has been conducted by the respondents in the matter at the instance of the

trial Judge during trial of the suit and the appellant has himself admitted the enquiry report, wherein he has accepted that his date of birth was

9.3.1936, as recorded in his service book. The department concerned, after conducting the enquiry into the matter, has come to the conclusion

that the date of birth of the appellant was 9.3.1936 as recorded in his service book on the basis of his Matriculation certificate to have been

furnished by the appellant. This report of the concerned authorities has strengthen the belief of the trial court that prima facie the appellant/plaintiff

had no case to claim that his date of birth was 9.9.1941 and not 9.3.1936, as recorded in his service book on the basis of Matriculation Certificate

furnished by the plaintiff himself.

In view of the discussion made above, the impugned order is found to have been passed by the trial court in accordance with law and it does

not suffer from any material, factual or legal irregularity which calls for any interference from this Court.

The appeal, therefore, fails and is dismissed, with its CMP No. 94 of 199.

Appeal dismissed.