Z.M. Samnani vs State of Jammu and Kashmir and Another

Petitioner seeks issuance of writ of Certiorari to quash Government orders No. 40-TR of 1999 and 41-TR of 1999 date 04.06.1999 whereby

his representation for change of his date of birth has been rejected and directed to be retired on superannuation with effect from 31.03.2000,

respectively. He further seeks a direction to the Principal Secretary to Government, Transport Department to comply with the direction dated

21.09.1999 of the Minister.

The petitioner joined the services in the year 1960 and at the time of his initial appointment his date of birth came to be recorded as 16th of

January, 1942. The petitioner on 10.4.1998 filed a representation before the respondents seeking change of his date of birth as 16th January,1946

instead of 16th January, 1942 relying upon the evidence of photo-stat copy of the Certificate issued by the Birth Registrar (Sialkote-Pakistan). The

representation of the petitioner was considered and came to be rejected vide Government order No. 40-TR of 1999 dated 04.06.1999 on two

grounds: firstly that the representation of the petitioner is time barred in terms of clause (c) of SRO 1995 dated 29.11.1995. Secondly that it is

established that the recorded date of birth of the petitioner is based on most reliable source, that is school leaving certificate and does not warrant

any alteration.

The petitioner further made a representation to the Minister for Transport, who recorded on the noting sheet of the file, whether any

representation for change in the recorded date of birth has been made by the ARTO before the issuance of the SRO 310 dated 29.11.95 is to be

looked into and till such time a final decision is taken, the effect to the notification No. 41-TR of 1999 dated 04-06-1999 is to be kept in abeyance

by a formal order.

The petitioner has challenged the impugned Govt. Orders on the ground that the service book of the petitioner is not traceable as either it has

been destroyed or mis-placed. Respondents have re-constructed the Service Book and during that process petitioner's date of birth has wrongly

been recorded in the re-constructed service book as 16th January,1942 instead of 16th January 1946. The representation has been wrongly

rejected on the ground of limitation as the SRO 310 of 1995 does not contain any default clause. The representation has also been wrongly

rejected as the date of birth has not been recorded on the basis of school leaving certificate. The Minister has re-opened the issue of date of birth

and the Principal Secretary should have carried out the orders/observations of the Minister.

Respondents have filed the objections stating therein that at the time of initial recruitment, the Service Book of the petitioner was prepared and

his date of birth came to be recorded therein as 16th January,1942 on the basis of the Certificate issued by the Government. High School, Jolaka

mohalla, Jammu and in token of the correctness and authenticity of the said date of birth, the petitioner has put his signatures thrice on the first page

of the service Book. Before that petitioner was an employee of the Police Department where also in the Character Role, his date of birth has been

recorded as 16th January,1942. Photo-stat copy of the Character Role and the first page of the Service Book has been annexed with the

objections. It is only in the year 1998 that for the first time petitioner filed representation before the respondents seeking change of his date of birth

relying upon a certificate issued by the Birth Registrar (Sialkote-Pakistan). He has filed this representation after a lapse of 37 years. The

respondents have issued SRO 310 of 1995 on 25th Nov.1995, clause (c) whereof provides specifically that ""no alteration of the date of birth of a

Government servant shall be made unless request in this regard is made by the concerned Government servant within a period of five years of

his/her entry into Government Service and it is clearly established that a genuine/bonafide mistake has occurred. It provides further that in case of a

Government servant in service on the date of issue of this SRO a request for declaration of his/her date of birth may be considered by the

Government for reasons to be recorded in writing, if any, provided an application to this effect is made within a period of six months from the date

of issue of this notification. The representation of the petitioner has been rejected rightly as the petitioner has not applied within the stipulated

period. Petitioner filed a suit in the court of Sub-Judge (CJM) Jammu and also a writ petition No.1430/1999 in this Court which came to be with-

drawn. It is also stated by the respondents that the date of birth of the petitioner i.e. 16th January,1946 is not correct as petitioner joined service in

the year 1960 and could not have been employed under any service Rules. According to his recorded date of birth as 16th January, 1942

petitioner was eligible to seek employment in the year 1960. The observation of the Minister for transport is in the form of noting in his file which is

neither an order nor a decision of the Government. Such observations cannot be construed as a decision unless it is given a practical shape by

issuance of formal Government order. More-so, the High Court should decline to seek execution of observation of the Minister as sought for. It is

also stated by the respondents that the service Book of the petitioner has neither been destroyed nor mis-placed and the same is in possession of

the respondents.

I have heard the learned counsel for the parties, perused the pleadings and other material on record.

The petitioner joined the service of the respondents in the year 1960. His date of birth as 16th January,1942 has been recorded on the first page

of the service Book on the basis of the Certificate issued by the Government, High School, Jolaka mohalla, Jammu. The petitioner in token of its

correctness and authenticity has appended his signatures thrice against the columns meant for the purpose. This entry has been counter-signed

under the signatures of the competent officer. This date of birth has also been recorded as 16th January, 1942 in his character Roll maintained by

the police Department where he initially joined the service. The petitioner's claim that his service Book has been mis-placed or destroyed and while

reconstructing the same, wrong date of birth has been recorded in the service Book is factually incorrect. The respondents are in possession of the

original service Book of the petitioner and the petitioner has taken this false plea with sheer object of gaining undue advantage to continue in

service for a longer spell of four years more. Petitioner has not explained as to why he remained silent and not made any representation to the

respondents for change of his date of birth for over 37 years, if it was within his knowledge that his date of birth is 16th January, 1946. He did not

approach the respondents even on promulgation of SRO 310 of 1995 which provided an opportunity to file representation. He at the fag end of

his service in the month of April, 1998 while he was to superannuate in January,2000, made a representation based on a certificate issued by the

Birth Registrar of Sialkote-Pakistan disputing his date of birth. The reasons that he came to know only recently is totally vague and has been

carved out only to get advantage for his prolonged service.

The respondents have considered the representation of the petitioner applying the provisions of SRO 310 of 1995. Clause (C) of the said SRO

is extracted below:

ALTERATION OF DATE OF BIRTH :

The date of birth so declared by the Government servant and accepted one recorded by the appropriate authority as specified in clause(b) above,

in the service record or any other service record of service of the Government Servant as the case may be, shall not be subject to any alteration,

except in the case of a clerical error without the orders of the Government. No alteration of date of birth of a Government (administrative Dept.)

unless a request in this regard is made by the concerned Government Servant within a period of five years of his/her entry into Government Service

and it is clearly established that a genuine/bona fide mistake has occurred.

Provided that in case of Government Servant in service on the date of issue of this Notification, a request for alteration of his/her date of birth may

be considered by the Government for reasons to be recorded in writting, if an application to this effect is made within a period of six months from

the date of issue of this Notification.

Provided further that the date of birth so altered would not make him/her in-eligible to appear in any School or University/Board or Public Service

Commission Examination, in which he had appeared or for entry into Government Service on the date on which he first appeared at such

examination or on the date on which he entered Government Service.

The respondent after having considered the representation on the touch stone of the above provision of law have rightly rejected the

representation of the petitioner as being time barred.

The plea of Mr. Shah, learned counsel for the petitioner that the limitation period is unjust as there is no default clause provided in the said

SRO making a room for an employee to explain the cause for not making representation within six months provided therein. The petitioner has not

shown as to why he has not been able to make representation to respondents within the stipulated period, therefore, this argument is not available

to the petitioner and is rejected for this reason. The argument of default clause has also no substance in view of the judgment of the Supreme

Court, while dealing with the similar proposition of facts and law, delivered in case Chief Medical Officer Vs. Khadeer Khadri, , observing that :

............

No doubt, sub-rule (5) of Rule 2 of the Andhra Pradesh Public Employment (Recording and alteration of Date of Birth) Rules, 1984, provides

power for correction of the bona fide mistake in recording the date of birth. It cannot be said that it is clerical mistake. The date of birth having

been given and recorded in the service register as early as in 1961, it was a bonafide mistake. The respondent claimed that he discovered the

mistake in 1991 that his date of birth instead of July16,1934, but it was recorded as November 14,1934. This is only a ruse to get over the bar of

limitation to have the date of birth entered in the service record corrected. The rule prescribe the procedure for laying the application within three

years from the date of entering into service. In 1976, executive instructions were issued for correction of date of birth which were replaced by

statutory rules issued in 1984. The latter also prescribe the procedure. He did not avail of the opportunity when twice, it was available to him to

have it corrected. It would clearly show that subsequent belated attempt is not a bonafide one but to have the corrections made to his advantage

after the bar of limitation created by the rules......

The respondents have promulgated SRO 310 of 1995 which prescribes the procedure for correction of date of birth and further envisages that

the dispute with regard to the date of birth of an employee can be raised within six months from the date of its publication. The petitioner

admittedly has not raised this dispute within that stipulated period and availed of the opportunity to have it corrected. He for the first time raised

this dispute in April,1998. The petitioner, therefore, was not entitled to seek correction of his date of birth which stood recorded in his service 37

years ago at the time of his initial recruitment.

His another plea is that his representation should not have been rejected on the ground that the date of birth has been recorded on the basis of

School Leaving Certificate, as there is no School Leaving Certificate annexed with the service book. Perusal of the first page of the Service Book

annexed with the objections reveals that it has been recorded very clearly therein that the date of birth has been recorded on the basis of the

School Leaving Certificate issued by the Government High School, Jolaka-Mohalla Jammu. For long 37 years it could not be disputed by the

petitioner, in face of the fact, that the petitioner has thrice put his signatures in token of its correctness and authenticity. This argument, therefore,

has no force.

The petitioner in the year 1978 filled up a form of G.P.Fund for nomination in favour of Mrs. Imrana Samnani. The petitioner therein has also

recorded his date of birth as 16th January,1942. The respondents have filed photo-stat copy of the said form with the objections. The petitioner,

therefore, is estopped in law from taking a different stand. In such a situation the Principle of Estoppel applies and the petitioner cannot seek

changes of date of birth in view of the law laid down by the Supreme Court in Union of India v. C.Rama Sawami reported in AIR 1997 SC 2057,

para 25 and 26 of the judgment are extracted below :

25... in the matter relating to appointment to service various factors are taken into consideration before making a selection or on appointment.

One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an

advantage had been gained by representing a date of birth which is different that that which is later sought to be unreasonable to presume that when

a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that

date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a reasonsible office. In fact, where

maturity is a relevant factor to assess suitability, and older person is ordinarily considered to be more mature and therefore, more suitable. In such

a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in

age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person

concerned, this being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the

age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.

In such case, even in the absence of statutory rules like Rule 16-A, the principle of estoppel would apply and the authorities concerned would

be justified in declining to alter the date of birth. If such a decision is challenged the court also ought not to grant any relief even if it is shown that

the date of birth, as ordinarily recorded, was in-correct because the candidate concerned had represented a different date of birth to be taken into

consideration. Obviously with a view that would be do to his advantage. Once having secured entry into the service, possibility in preference to

other candidates, then the principle of estoppel would clearly applicable and relief of change of date of birth can be legitimately denied. To that

extent the decision in Manak Chand's case 1976 LabIC 1233 does not lay down the correct law"".

The petitioner is a qualified person belonging to an educated family. He cannot take shelter that he was not aware of his date of birth recorded

in his service record. The Supreme Court while dealing with such plea of qualified public servant in Union of India and others Vs. Mrs. Saroj Bala,

has held :-

It is unthinkable having been born in an educated family and having remained in service for 18 years she discovered that her date of birth would be

wrong. Under these circumstances the Tribunal was wholly unjustified and obviously illegal in allowing the application and directing correction of

the date of birth. Though Mr. Suri Sought to bring to our notice that she made her representation in the year 1981, it is of little importance for

disposal of the matter on merits.

In Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, , the Apex Court sounded a caution regarding entertaining

writ petitions by High Courts for correction of date of birth. The court observed that :

Entertainment by High Court of writ applications made by employees of the Government or its instrumentalites at the fag end of their service and

when they are due for retirement from their services, in our view is unwarranted. It would be so for the reason that no employee can claim a right

to correction of birth date of some employee of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to

be an undue encouragement to the other employee to make similar applications at the fag end of their service careers with the sole object of

preventing their retirement when due. Extraordinary nature of the jurisdiction vested in the High Courts under Art. 226 of the constitution in our

considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their

entitlement according to dates of birth accepted by their employees, placing reliance on the so-called newly found material. The fact that an

employee of the Government or its instrumentality who will be in service for over decade, with no objection whatsoever raised as to his date of

birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with writ application

before the High Court seeking correction of his date of birth in his service Record, the very conduct of non-raising of objection in the matter by the

employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay

and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains

such writ application, for no employee, who had grievance as to his date of birth in his 'Service and Leave Record' could have genuinely waited till

the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of High Court. Therefore, we have no hesitation, in

holding that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an

employee of the Government or its instrumentality towards the fag end of his service, seeking correction of his date of birth entered in his 'Service

and Leave Record' or Service Register with the avowed object of continuation in service beyond the normal period of his retirement.

Prudence on the part of every High Court should, however in our considered 'view, prevent it from granting interim relief in a petition for correction

of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employer, because of the well settled legal position

governing such correction of date of birth, which precisely stated is in the following :

When a person seeks employment he impliedly agrees with the terms and condition on which employment is offered. For every post in the service

of the Government or any other instrumentality there is minimum age of entry prescribed depending on the functional requirement for the post. In

order to verify that the person concerned is not below the prescribed age he is required to disclose his date of birth. The date of birth is verified

and if found correct is entered in the service record. It is ordinarily presumed that the date of birth disclosed by the incumbent gives the date of

birth and the employee accepts it as true and accurate before it is entered in the service record. 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 manner permitted by service conditions

or the relevant rules. Here again consideration for a change in the date of birth may be diverse and the employer would be entitled to view it not

merely form 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 the rules. It is equally known that practically every

establishment prescribes 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. If that be so and if permitting a change in the date of birth is

likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit

correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of

others may have joined service hoping that on the retirement of the senior on the due date there would an upward movement in the hierarchy. In

any case in such cases interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they

would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no

interim relief for continuance in service is granted and ultimately his claim for correction of date of birth is found to be acceptable, the damage can

be repaired by granting him all those monetary benefits which he should have received had continued in service. We are, therefore of the opinion

that in such cases it would be imprudent to grant interim relief.

The dispute of date of birth raised by the petitioner can also be looked by another angle and appears to be not workable. If the date of birth of

the petitioner as projected by him at the fag end of his service, is accepted, the petitioner in that event would have been of 14 years of age when he

joined the police service in 1960. It is not shown by the petitioner that a boy of 14 years could be recruited in the police Department under any

service rules whereas it cannot be denied that in the police Department even in the year 1960, no person could be recruited unless he has attained

the age of 18 years. Petitioner in the year 1960 was of the age of 18 years according to the date of birth recorded in his service Record. On this

score also the dispute raised appears to be mis-placed. The Supreme Court dealing with similar proposition while dismissing the cause of

correction of date of birth has observed in G.M.Bharat Coking Coal Ltd. W.B. v. Shib Kumar Dushad reported in AIR 2001 SC 72 that :

The High Court in writ jurisdiction is not the appropriate forum for undertaking such enquiry into disputed question of fact. At this stage it is

relevant to state that if the respondent's date of birth is taken to be 9.2.1946 then he would have been 14 years of age when he joined service in

1960. No material is available on record that the Industrial undertaking where the respondent joined service was legally permitted to employ a

minor.

The petitioner's grievance that the order of the Minister has not been executed by the Principal Secretary to Government, therefore a writ of

mandamus be issued directing him to comply the said direction. The petitioner is not entitled to this relief for the reason that the Minister was not

dealing with any statutory representation. The observations recorded in the course of the noting on the file is not a formal Government order

creating any right in the petitioner for re-opening the issue of his date of birth which stood settled vide Government order No. 40-TR of 1999

dated 04.06.1999 in terms of the statutory provisions of SRO 310 of 1995. Assuming that the Principal Secretary to Government, has not

compiled with the order/observation of the Minister, the Minister should have sought its implementation. The High Court in such matters cannot be

converted as an executing court for the execution of the observations recorded by the Minister on the noting sheet of the file. The Government has

rightly decided the representation of the petitioner, therefore, the court declines to interfere.

For the aforesaid reasons, no case for interference with the impugned orders dated: 04.06.1999 and for admission of the writ petition, is made

out. The writ petition is accordingly dismissed. The salary drawn by the petitioner for the over-stayed period shall be recovered by the respondents

as costs.