Smt. Ramvati vs State of M.P. & others

This is second visit of the petitioner to this Court relating to her

grievance about premature retirement. Earlier the petitioner was retired

on completion of 30 years of service w.e.f. 31.12.2001. This order was

called in question by filing W.P.(S) No.01/2005. This Court, by following

the principles laid down by the Division Bench in Ramrup Vs. State of

Madhya Pradesh and others, opined that the petitioner is entitled to

continue up to completion of age of 62 years. In obedience thereof, the

petitioner was reinstated by order dated 01.07.2006 (Annexure-P/3).

The petitioner along with other employees were sent for medical

examination for the purpose of ascertaining their age. This communication dated 21.03.2001 is filed as Annexure-P/4. In turn, the

petitioner was subjected to a medical examination and Civil Surgeon,

Jabalpur issued the ...Age Assessment Certificate... dated 26.03.2001

(Annexure-P/5). As per this certificate, petitioner''s age was assessed as

49 years as on March, 2001. The petitioner received a communication

dated 28.07.2010, whereby it was directed to produce the original letter

of Executive Engineer pursuant to which she appeared before the

Medical Board, failing which her case may again be sent for re-medical

examination before the Medical Board.

Shri Mrigendra Singh, learned senior counsel for the petitioner

contends that the petitioner''s case was not subsequently sent to the

Medical Board. The impugned order dated 28.08.2010 (Annexure-P/7)

came as a blot from blue to the petitioner, whereby she was retired on

31.08.2010. Criticizing this order, it is contended that as per this order,

the petitioner''s year of birth is 1939. The petitioner is an illiterate

woman. As per the report of the Medical Board, she has a legal right to

continue up to the year 2014.

Per contra, Mrs. Sonali Shrivastava, learned P.L. for the State

relied on the averments of the return. She submits that the service

book of the petitioner was prepared wherein the date of birth of the

petitioner was mentioned as 18.04.1939. The petitioner put her

thumb impression as a token of acknowledgment in the said service record. There is no overwriting or clerical error in the entry

related to date of birth of the petitioner. Thus, the respondents

have retired the petitioner as per the date of birth mentioned in the

service record. She submits that in fact, the petitioner has

continued beyond her age of retirement because at the relevant

time, her service book was not traceable. She submits that the

date mentioned in the service record should be treated as final and

at this stage no interference is warranted.

No other point is pressed by learned counsel for the parties.

I have heard learned counsel for the parties at length and

perused the record.

It is condign to mention here that similar point came up for

consideration before this Court in W.P. No.6875/2015 (Ramhit

Sahu Vs. State of M.P. and others). In the said case, this Court

held as under:

... 8. No doubt, while passing the interim order in W.P. No.14377/13, this Court directed the competent authority to take suitable action with regard to alteration of date of birth based upon the recommendation of the Medical Board. However, admittedly, the said order stood merged in final order passed in the said writ petition on 13.12.2014. The said writ petition was disposed of by directing the respondents to take a decision on the report in accordance with law. Thus, the core issue needs consideration in this matter is ...whether the decision taken by the respondents on 22.04.2015 (Annexure P/15) is in accordance with law.... This point is no more res integra.

[Emphasis Supplied] In 1993(2) SCC 162 (Union of India Vs. Harnam Singh), the Apex Court held as under :-

...The application for correction of date of birth, entered in the service-book in 1956, for the first time made in September, 1991 was hopelessly belated. It had not been made even within the period of five years from the date of coming into force of Note 5 of FR 56(m) in 1979. His inaction for all this period of about thirty-five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth....

In Harnam Singh (Supra), it is further held that :

... 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....

(emphasis supplied)

In the case of State of Gujrat and others Vs. Vali Mohd. Dosabhai Sindhi- (2006)6 SCC 537, the Apex Court held that the States have framed statutory rules or in absence of it, issued administrative instructions as to how a claim made by a Government servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. The sole object of making such provision is that any such claim regarding correction of date of birth should not be made or entertained after decades, especially on the eve of superannuation of Government servant. The Apex Court considered the judgment of State of Assam Vs. Daksha Prasad Deka-(1970) 3 SCC 624 wherein it was held that the date of birth must be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. In para-12, the Apex Court held as under :-

...An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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 within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books.... Same view is taken by the Apex Court in the case of State of Maharashtra and another Vs. Gorakhnath Sitaram Kamble and others- (2010) 14 SCC 423. It was held that date of birth cannot be permitted to be altered at the fag- end of the career. This Court in the matter of Surendra Singh VS. State of M.P and others- 2007(1) MPLJ 286, has taken the same view.

Relevant portion of the M.P. Financial Code Rules reads as under :-

"VERNACULAR MATTER OMITTED"

A plain reading of this provision makes it clear that the date of birth can be altered only in case of clerical error. A Division Bench of this court in 2003 (1) MPHT 148 (DB) ( State of M.P. vs. Mathura Singh and another ) considered this aspect and held as under :-

... Rule 84 of M.P. Financial Code (Volume I) provides that date of birth once recorded must be deemed to be absolutely conclusive and except in the case of a clerical error no revision of such a declaration shall be allowed to be made at a later period for any purpose whatsoever....

In the light of the view taken by this Court, in the case of Ramhit

Sahu (supra), it is clear that date of birth entered in the service

record cannot be altered unless the conditions mentioned in Clause

84 of the Financial Code are satisfied. In the present case, no

overwriting or clerical error is found in the relevant entry relating to

date of birth in the service record. Thus, in my view, the point

involved in this case is squarely covered by the view taken in the

case of Ramhit Sahu (supra). Thus, no fault can be found in the

action of respondents in retiring the petitioner as per the date of birth mentioned in the service record. Any subsequent medical

opinion cannot prevail over such entry of date of birth mentioned in

the service record.

Resultantly, petition is dismissed. No cost.