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Judgment
Heard MR. MK Choudhury, learned Senior Counsel assisted by Mr. R Sinha, learned counsel for the appellant, Mr. TC Chutia, learned
Standing Counsel appearing for the respondent No. 4 and Ms. K Phukan, learned Government Advocate, Assam appearing for the respondents
No. 1, 2 and 3.
The present appellant as the plaintiff filed Title Suit NO. 63/2014 in the court of learned Munsiff No. 1, Dhubri, against the present respondents
as the defendants. The plaintiff/appellant is an Inspector of Police, O/C, Dhubri Police Station and he is supposed to retire on 30.01.2018. He filed
the suit for declaration that the plaintiff was born on 05.01.1961 as against the date of birth recorded as 01.01.1958 in the Admit Card and
certificate of HSLC Examination, 1976 issued by the Board of Secondary Education, Assam, the defendant/ respondent No. 4 is incorrect and
liable to be corrected as 05.01.1961 and for the correction of the same in the Service Book maintained by the defendants/ respondents No. 1 and
2 and for a direction to the concerned defendants/ respondents for correcting the same on the relevant records. The plaintiff was born on
05.01.1961 and as against that his parents prepared horoscope immediately after his birth. He is the youngest of all the brothers of his family and
his immediate elder brother is Kamakhya Kalita. The plaintiff/ appellant got admitted in the LP School by his uncle who wrongly recorded his date
of birth to be 01.01.1958 instead of 05.01.1961 owing to wrong calculation of English Calendar with the Assamese Calendar. He is unaware of
such wrong entry of his date of birth and as a result, his date of birth was recorded as 01.01.1958 in the Admit Card of the year 1976 issued by
the defendant/ respondent No. 4. He was selected and appointed as Sub Inspector (S.I.) (UB) on 08.01.1984 and his date of birth was recorded
as 01.01.1958 as per the date of birth appeared in HSLC Admit Card. During these long years of service, he hardly got time to think about the
wrong entry in his HSLC Admit Card, Service Book etc. In the month of May, 2013, it came to the notice of the plaintiff that his immediate elder
brother Kamakhya Kalita was born on 01.01.1958. He checked the matter and got confirmed that his date of birth was wrongly recorded as
01.01.1958 instead of 05.01.1961 in the admission register of the LP School. No sooner he came to know about the actual date of birth, he
submitted an application dated 12.06.2013 before the Inspector General of Police, Assam, through the defendant/ respondent No. 3 for necessary
correction of his date of birth as 05.01.1961 in the Service Book. The defendants/ respondents No. 1 and 2 failed to make the necessary
correction of his date of birth in the Service Book and accordingly has filed this suit for declaration referred hereinabove.
The defendants/ respondents did not contest the claim of the plaintiff/ appellant by filing the written statement. However, cross examination of
witnesses of plaintiff side were done by the defendants/ respondents side. The learned trial court framed the following points for determination:-
Whether the suit is maintainable?
Whether the actual date of birth of the plaintiff is 05-01-1961 instead of 01- 01-1958?
Whether the plaintiff is entitled to get any relief as prayed for?
In his evidence, in all, the plaintiff/ appellant examined 5 (five) witnesses including himself as the PW 1. The plaintiff/ appellant exhibited his
Horoscope along with the one of his elder brother, Kamakhya Kalita and some of his witnesses. The learned trial court dismissed the suit. The
learned trial court while evaluating the evidence on record kept in mind about the completion of the period of 30 years of service by the plaintiff/
appellant, the relief for correction of his date of birth on the basis of Horoscope and the burden the plaintiff/ appellant undertook to discharge in
proving his case. The learned trial court held that the suit was not maintainable and finally came to the conclusion that the plaintiff/ appellant failed to
prove conclusively that the date of birth of the plaintiff/ appellant has been wrongly recorded as 01.01.1958.
Being aggrieved, the plaintiff/ appellant preferred Title Appeal No. 82/ 2015 in the court of learned Civil Judge, Dhubri which was also
dismissed vide judgment and decree dated 31.08.2017, thereafter the present second appeal was preferred which was admitted on 03.11.2017
on the following substantial question of law:-
Whether the learned first appellate court failed to consider the law holding the field as to the limit prescribed under various rules to approach for
correction of date of birth by a Government employee?
Mr. Choudhury, learned Senior Counsel, submits that the learned first appellate court was not correct in holding that the plaintiff/ appellant had
come for his relief at a much belated stage without any acceptable reasons. Referring SR-8 (c) of Fundamental Rules and Subsidiary Rules, Mr.
Choudhury submits that Commissioner and Heads of Departments may alter the recorded date of birth in the case of non-gazetted Government
servants provided they are satisfied after enquiry with the previous date was incorrect. Referring Exhibit-5, Mr. Choudhury submits that the
plaintiff/ appellant prayed for correction of his date of birth vide his representation dated 12.06.2003 to the Inspector General of Police through the
Superintendent of Police, Dhubri. However, no enquiry was caused as required under the aforesaid SR-8 of the Fundamental Rules and
Subsidiary Rules whereafter the plaintiff/ appellant was compelled to file the suit by taking due leave from his employer on 10.02.2014 i.e. much
prior to his date of retirement on 30.01.2018. Even on the available materials on record, the learned first appellate court had wrongly came to the
finding that the plaintiff/ appellant had moved for correction of his date of birth on the basis of the evidence of his Horoscope at a belated stage.
This finding is in clear contradiction to the SR 8 referred hereinabove inasmuch as, the employer failed to cause an enquiry and as such finding no
other alternative, the plaintiff/ appellant was compelled to file the suit and the learned courts below, more specifically, the learned first appellate
court was not correct in dismissing the appeal.
Mr. Chutia, learned Standing Counsel, on the other hand, submits that so far the rules prescribed by the respondent No. 4, the same had been
examined by none other than the Hon''ble Apex Court and the same were held to be correct having its mandatory force. The plaintiff/ appellant on
the basis of the Admit Card issued in the year 1976 by the respondent No. 4 entered into his service by affirming the date of birth as recorded by
the respondent No. 4 in the Admit Card, Exhibit 2 and time to time he checked his Service Book wherein his date of birth was mentioned as
01.01.1958 but he failed to take necessary steps for its correction. Pointing to the cross examination of the plaintiff/ appellant wherein he admitted
that as he was permitted to play football in the Senior Division, as such he did not object to the date of birth recorded in the Exhibit-2. He further
admitted that till completion of his graduation he was aware of the date of birth recorded in Exhibit-2. On the face of such piece of evidence on
record, the learned courts below had rightly dismissed the suit of the plaintiff/ appellant.
Considered the submissions of both the learned counsels. There are catena of decisions of the Hon''ble Apex Court including this court that the
form of evidence of horoscope is a piece of evidence which the court can rely on the basis of other surrounding circumstances. It is true that the
date of birth recorded by the respondent No. 4 while issuing the Admit Card and HSLC Pass Certificate have its evidentiary value and the same is
presumed to be correct though the same is rebuttable. The act of carrying any such change in the date of birth recorded in the official record of
respondent No. 4 and any other records relating to service conditions of a person must be at the very first instance on which the said person is
aware of such wrong entry in the said records. The plaintiff/ appellant in his cross examination as the PW 1 instead of proving that such entry of
wrong date of birth in the Exhibit 2 came to his knowledge just prior to his representation made before the defendants/ respondents rather deposed
he was aware of such recording of his date of birth but he did not try to correct the same as he was allowed to play football in the Senior Division.
In addition to that, the plaintiff/ appellant exhibited Exhibit-4, the Service sheet wherein he affirmed his date of birth as 01.01.1958 and age on
enrolment in the service was 26 years 10 months on 22.11.1985. It is true that the plaintiff/ appellant filed his representation in order to correct his
date of birth on the ground that the date of birth so recorded in the Admit Card is the date of birth of his elder brother i.e. Kamakhya Kalita. In
support of such contention, the PW 2, Sri Niranjan Kalita, one of the elder brothers of the plaintiff/ appellant exhibited the horoscope of
Kamakhya Kalita showing the date of birth as 05.01.1958. There is no mention whether the said Kamakhya Kalita was living or about the status
whether he served any government department. The said Kamakhya Kalita did not grace the witness box in support of the claim that his date of
birth is 01.01.1958. Keeping the said materials on record, the burden of proof which the plaintiff/ appellant ought to have discharged has failed.
On one hand, he admitted that he was aware of the said entry much prior he entered into his service and he allowed to remain the said date of birth
recorded as such just prior to 3 years from the date of his retirement from his service. It is not his case that it was for the first time in the year 2013
he could come to know about the recording of the date of birth both in the Admit Card and in the Service Book as 01.01.1958. The application of
the said term ""fag-end"" as held by the learned first appellate court is with respect to the piece of evidence on record about the admitted date of
knowledge inasmuch as, if the court entertains such type of claim of a service holder and that too, on the basis of such material piece of evidence
the same would cause irreparable loss to the persons in the service junior to the plaintiff/ appellant. Under the service law jurisprudence such
delayed action on the part of any person similar to the plaintiff/ appellant cannot be permitted. The Heads of the Departments have the authority to
alter the recorded date of birth in the case of Non-Gazetted Government servants provided they are satisfied after the enquiry that the previous
date was incorrect. In the present case in hand, the enquiry was not conducted as required under SR-8. The plaintiff/ appellant can come to the
civil court on such failure on the part of the concerned heads of the departments but in order to get the relief and that too, on the basis of the
horoscope, the burden on the plaintiff/ appellant is too heavy a burden taken by him in order to entitle him for his reliefs. The said burden as held
hereinabove by the trial court could not be discharged by the plaintiff/ appellant. The learned first appellate court rightly came to the finding that the
plaintiff/ appellant failed to prove acceptable explanation about such long delay in raising the matter before the defendants/ respondents. In order to
get the relief a duty is cast upon the plaintiff/ appellant to prove by convincing evidence the causes for not agitating the said issue for correction of
his date of birth before initiating the suit which the plaintiff/ appellant has completely failed. It is not the question of law holding the field as to the
limit prescribed under various rules to approach for correction of date of birth by a Government employee but it is the cause/causes why the
plaintiff/ appellant delayed in coming to the court and the date of knowledge of such wrong entry to be satisfied by convincing evidence in order to
bring himself out from the term ""fag-end"" what the learned first appellate court has pointed out. Finally, I am of the view that the learned first
appellate court correctly decided the appeal thereby upholding the findings of the learned trial court. Accordingly, the substantial question of law is
decided in the negative. The learned first appellate court has rightly, held that the plaintiff/ appellant has come to the court belatedly. Accordingly,
this second appeal is dismissed.
Send down the lower court records. No order as to costs.