Sriram vs State of U.P. and Others

J.C. Gupta, J.—In this writ petition the Petitioner has prayed for issuing a writ In the nature of mandamus commanding the opposite parties to correct the Petitioner''s date of birth in the Petitioner''s character roll as 12.1.1931 instead of 1.7.1927 and for the quashing of the order dated 12.2.1985 of the Senior Superintendent of Police, Aligarh informing the Petitioner that he would retire on 1.7.1985 after reaching the age of superannuation of 58 years on the basis of his date of birth entered in Petitioner''s service record.

The writ petition for the above reliefs was filed on 26.6.1985 but since no stay was granted, the Petitioner ultimately was retired from service with effect from 1.7.1985. The petition is now pressed only for the relief that Petitioner''s date of birth be corrected as 12.1.1931 and he be held to be entitled to get all service benefits upto 31.1.1989 on which date the Petitioner actually reached the age of superannuation.

The only question that requires decision in this case is whether the age of superannuation of the Petitioner was to be computed on the basis of the entry of his age recorded in service record or was the same to be counted from the date of birth mentioned in his High School Certificate?

I may now give an abridged version of the factual matrix. The Petitioner in the year 1948 was selected as a police constable In the U.P. Police Service and Joined service on 3rd August, 1948. His service record indicates that at that time he disclosed his age as 21 years and 1927 as his year of birth, the age was not verified by the Chief Medical Officer and thereafter the same was entered into his service record, which was accepted by the Petitioner by affixing his thumb impression. In due course of time the Petitioner availed several promotions and reached the post of Circle Officer from which post he retired. In the month of February, 1985, while the Petitioner was still in service he received a notice dated 12.2.1985 from the Senior Superintendent of Police Informing him that he would retire on 1.7.1985 on reaching the age of superannuation of 58 years on the basis of his age recorded in his Service Book. The Petitioner then for the first time submitted an application on 30.3.1985 for the correction of his date of birth on the basis of his High School Certificate wherein his date of birth was recorded as 12.1.1931. When no action was taken by the Respondent the Petitioner approached this Court by filing this writ petition. The stand of the Government is that when the Petitioner joined the service, it was never disclosed by him that he was High School Pass or that his date of birth was 12.1.1931 nor any document in support thereof was produced. The entry In the Service Book was made on the basis of the declaration made by the Petitioner and the same continued to exist and its correctness was never doubted by the Petitioner during his long tenure of service. The minimum age prescribed for the recruitment of a police constable was 18 years. Had the Petitioner disclosed his date of birth as 12.1.1931 at the time of his entry Into the service, he would not have been appointed as he then was not eligible for the same on account of his not completing the minimum prescribed age of 18 years. The true copy of the High School Certificate was later on produced by the Petitioner in the year 1953 only and not in 1951, as claimed by the Petitioner.

In order to answer the point arising for consideration, 1 may first refer to the relevant statutory provisions. In the State of Uttar Pradesh specific rules have been framed regarding the determination of date of birth of a Government servant for all purposes in relation to his service including the superannuation. They are known as the U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974. Rule 2 of the said rules, as amended by the Amending Rules of 1980, reads as under:

The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his Service Book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his service, including eligibility for promotional superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.

A perusal of the above amended Rule 2 would show that this deeming provision creates a legal fiction in three contingencies:

(i) Where the Government servant has passed High School or equivalent examination before his entering into Service, the date of birth as recorded in the certificate shall be deemed to be his correct date of birth for the purposes of calculating the age of superannuation, or

(ii) Where the Government servant has not passed such examination, the date of birth or the age as recorded in his Service Book at the time of his entry Into the service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes: in relation to his service including the superannuation, or

(iii) Where the Government servant has passed the High School or equivalent examination after Joining the service, the; date of birth or age as recorded in his Service Book at the time of his entry into the service, shall be the deeming date for calculating his age of superannuation.

It is further provided in that rule that no application or representation is capable of being entertained for making any changes therein in any circumstances, whatsoever. That means the presumption raised by legal fiction does not admit any exception and is absolute.

From the above it is obvious that the only eventuality in which the date of birth recorded in High School Certificate is taken as the governing date for determining the age of superannuation, is where Government servant has already passed his High School Examination before entering into the service. In all other situations the determining date is the date of birth or age recorded in his service record at the time of his induction in the service.

What is the effect of a deeming clause in a Statute was stated by the Privy Council in the case of Commissioner of Income Tax. Bombay v. Bombay Trust Corporation AIR 1930 PC 54, in the following words:

Now when a person is "deemed to be" something the only meaning possible is that whereas he is not in reality that something the Act of Parliament requires him to be treated as if he were.

The principle enunciated by the Privy Council referred to above was approved of by the Supreme Court in the case of K. Kamraja Nadar v. Kunju Thevar AIR 1958 SC 687.

In another case of Additional Income Tax Officer v. E. Alfred AIR 1962 SC 663, the Apex Court held that when a thing is deemed to be something else, it is to be treated as if it is that thing, though, in fact it is not.

In the decision in Mohd. Iqbal v. State of Maharashtra JT 1996 (1) SC 114, the Hon''ble Supreme Court has held that the Legislature can introduce a statutory fiction and Courts have to proceed on the assumption that such state of affairs exists on the relevant date, because when one is bidden to treat an Imaginary state of affairs as real, he has to also imagine as real the consequences which shall flow from it unless prohibited by some other statutory provisions.

As pointed out above, by the legal fiction created by deeming clause In Rule 2, the date mentioned in the High School Certificate is deemed to be the relevant date for all purposes in relation to the service only in a case where a Government servant had passed the High School Examination before his entry into the service. However, in case where the Government servant after Joining the service passes such examinations, the relevant date would not be the date of birth as entered in the High School Certificate, but it will be the date of birth or age recorded in his Service Book at the time or his entry into the service.

In the present case, it is borne out from the record and the circumstances that at the time when the Petitioner entered into the service, he disclosed his age as 21 and (he year of birth as 1927 and had not disclosed that he had already passed the High School Examination. There is no proof on record that he furnished such an information through any other material. The High School Certificate of the Petitioner is dated 18.9.48; whereas the date of entry of the Petitioner into the service was 3.8.1948. Obviously the said certificate could not have been produced before the authority concerned as the same had not come into existence at that time. No document or copy of the gazette, wherein the result was published have also been brought on record in support of the fact that the Petitioner was High School pass prior to his entry into the service. It has clearly been stated in the counter-affidavit that at the time of appointment the Petitioner had not produced any certificate of his having passed Vernacular Examination. There seems to be weight in this assertion because had the same been produced, the Petitioner being only seventeen and a half years old on the basis of that certificate, would not have been allowed to Join as being under age. It is needless to repeat here that the minimum prescribed age for the recruitment of the police constable was 18 years. The birth year of the Petitioner was entered as 1927 and his age as 21 years in the service record. His age was also certified by the Civil Surgeon. The fact that the Petitioner affixed his thumb impression on the said declaration goes to show the Petitioner accepted the aforesaid declaration as true and accurate and this being the position, by virtue of the legal fiction created by Rule 2 aforesaid, the age of superannuation of the Petitioner was rightly counted from the entry made in his service record. The circumstances further indicate that the Petitioner had full knowledge that his age in the service record has been recorded as 21 years at the time of his entry into the service and the birth year as 1927. The Petitioner took no steps to get this entry corrected during the entire long tenure of his service, therefore, he could not be permitted to get another date of birth entered into his service record at the fag end of his career.

In the case of Burn Standard Co. Ltd. and Ors. v. Dinabandhu Majumdar and Anr. (1995) 4 SCC 172, the Hon''ble Supreme Court deprecated the principle of entertaining a writ application filed by an employee of a Government towards the fag end of his service seeking correction of date of birth entry in the Service and Leave Record or Service Register. It was observed in the said decision that when a person seeks employment, he impliedly agrees with the terms and conditions on which the employment is offered. Now every post in the service of the Government or any other instrumentality there is minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age, he is required to disclose his date of birth. The date of birth is verified and if found to be correct, is entered in the service record. It is ordinarily presumed that the date of birth disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employee accepts it as true and accurate before it is entered in the service record. The Apex Court held ''This entry in the service record made on the basis of the employee''s statement, cannot be changed unilaterally at the sweet will of the employee except in the mariner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribed a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date, opening up promotional avenues for others."

As stated above on the date of entry into the service, on the basis of the date of birth which the Petitioner seeks to get revised, he would have not been eligible for appointment. The age and birth year as entered into the service record of the Petitioner were accepted and understood by both the parties and acted upon for long and the benefits have been driven out by the Petitioner by getting appointment and further advantage of promotion have been availed of on that basis. It is not open for him to wriggle out of his admission and to lodge a complaint against the said entry after a long lapse of time, as the same is not only inequitable but also barred by the law of estoppel and acquiescence.

The learned Counsel for the Petitioner placed reliance upon the decisions in the case of Devendra Gangwar v. State of U.P. and Ors. (1990) 1 UPLBEC 320and the case of N. Bux Singh v. State U.P. and Anr. 1980 LLT (Services) 289. Both these cases are distinguishable on facts inasmuch as there, the Court had found that the employee had passed High School examination at the time of his entry into the service on the basis of the facts of those particular cases, hence by virtue of legal fiction the age of the Government employee in those cases was counted from the date of birth entered into the High School Certificate. In the present case, however, the state of affairs has not been proved to exist.

The equity is also not in favour of the Petitioner for getting the date of birth corrected on the basis of Petitioner''s contention. While seeking appointment the Petitioner at the time of his entry into the service disclosed the year of birth as 1927 with the sole object that he might not be disqualified from the selection on the basis of his being not attaining the prescribed age of 18 years, but after entering into his service at the fag end of his career and after when he had availed of all the benefits including promotions he stood up to say that his age was not correctly recorded in the service record and should be changed on the basic of High School Certificate. This cannot be permitted.

In the case of Bakshi Ram v. Sri Brij Lal JT 1994 (5) SC 422, it has been held that in equity a person drawing benefit from a transaction is not permitted to escape from disadvantages, if any flowing from it. A party cannot be permitted to take the stand "heads i win, tails you loose". Law has to promote Justice and the Courts of equity and Justice cannot uphold such an unfair stand,

Once it has been found that the Petitioner entered into the service on the basis of his own declaration regarding age and the state accepted the same and acted upon for long and the Petitioner has also eaten up all the fruits of the service, he now cannot be permitted to contradict his former declaration in order to gain further unfair advantages. It is well-settled that no man is allowed to take advantage of his own wrong far less; of his wrong intention which is not expressed. It is equally true that a wrongful or fraudulent act should not be allowed to conduce to the advantage of the party who committed it (nut Prendra advantage de son tort demesne). It can be laid down as a general rule, applicable alike in law and equity, that a party shall not entitle himself to substantiate a claim by reason of acts or misrepresentations which proceed from himself, or were adopted or acquiesced in by him after full knowledge of their nature and quality. It is the duty of the Court to prevent an undue benefit from accruing to that party who has been unfairly endeavoured to take advantage of his own wrong or fraud and should decline to give relief to such a party.

For the reasons stated above, it will not be fair both in law and in equity to allow any relief to the Petitioner and this writ petition is liable to be dismissed.

The writ petition is accordingly dismissed. There shall be no order as to costs.