HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Civil Misc. Writ Petition No. 39406 of 2007 Hari Ram Gupta Vs. State of U.P. and others Hon'ble Ran Vijai Singh, J.
Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 16.8.2007 passed by Executive Engineer, Construction Revision, Public Works Department, District Maharajganj (respondent no. 3) by which the petitioner's application for correction of date of birth in the service book has been rejected on the ground that the date of birth recorded in the service book at the time of entry in the service shall be deemed to be correct. This was done on the basis of legal advice taking note of the provisions contained in (U.P. Recruitment of Services Determination of Date of Birth Rules) 1974 (herein after referred to as Rules 1974).
The facts giving rise to this case are that the petitioner was appointed as a roller driver on 1.3.1980 and was confirmed on the said post on 30.8.1982. While entering into the service his date of birth in the service book was recorded as 20.8.1947. Taking note of that the petitioner was served with the notice of retirement dated 20.3.2007 treating the petitioner's date of birth as 20.8.1947. After coming to know about the notice dated 20.3.2007 issued by Executive Engineer Construction Division, Public Works Department, District Maharajganj, the petitioner has given an application mentioning therein that the petitioner has passed High School Examination in the year 1967 and in the High School Certificate, his date of birth is mentioned as 1.1.1949. Along with application, the petitioner has also filed photo stat copy of the High School certificate but no decision was taken thereon and petitioner thereafter filed Civil Misc. Writ Petition No.2232 of 2007. This writ petition was disposed of on 11.5.2007 with the observation that for redressal of his grievance the petitioner may file application before the authority concerned. The direction was also issued to the respondents to decide the petitioner's representation before he reaches the age of superannuation. Copy of the order passed by this Court is brought on record as Annexure 4 to the writ petition. It is thereafter the petitioner has filed the certified copy of the order of this Court along with fresh representation and the same was rejected by the impugned order dated 16.8.2007 on two grounds :-
(1) the application has been filed at the fag end of service.
(2) In view of Rules of 1974 the date of birth recorded in the service book at the time of entry into service shall be deemed to be correct.
Sri R.B.Yadav, learned counsel appearing for the petitioner, referring to Rule 2 of Rules 1974, has submitted that in the case of an employee who entered into the service after passing of the High School Examination, his date of birth recorded in the High School Certificate shall be treated to be correct date of birth and in case while entering into the service the employee has not passed High School Examination, the date of birth recorded in the service book shall be treated to be correct date of birth. In his submissions, the respondent has erred in rejecting the petitioner's application and retiring him treating his date of birth as 20.8.1947.
In support of his submissions, he has placed reliance upon the judgment of this Court in the case of Hari Shankar Pandey Vs. U.P. Power Corporation, Lucknow and others 2006 (1) ESC 80 (All).
Refuting the submission of learned counsel for the petitioner, learned standing counsel has submitted that the petitioner has not filed High School certificate while entering into the service therefore at the fag end of the service he cannot be permitted to take benefit of the date of birth recorded in the High School Certificate.
In his submissions, in view of the rules of 1974, no application for correction of date of birth can be entertained. He has placed reliance upon the government order dated 7.6.1980 annexed as annexure 1 to the supplementary counter affidavit dated 4.1.2011 mentioning therein that the date of birth recorded in the service book shall be final for all purposes. In the submissions of learned standing counsel, there is neither any infirmity nor illegality in the order impugned and the writ petition deserves to be dismissed.
In response to the writ petition as well as supplementary affidavit, the respondents have filed counter affidavit, supplementary counter affidavit and second supplementary counter affidavit stating therein that the petitioner's date of birth was recorded on the basis of medical certificate of Senior Medical Superintendent S.S.P Gupta Hospital Varanasi. According to which, the petitioner has stated that he is of about 27 years but the Doctor has recorded that he appears to be 35 years. First page of the service book has also been brought on record mentioning the date of birth 20.8.1947. In the supplementary counter affidavit sworn on 30th March, 2009, it has been stated that the petitioner kept mum for about 25 years after entering into service and at the fag end of the service he has filed an application for correction of date of birth in the service book which is impermissible. Whereas through second supplementary counter affidavit the respondents have brought on record the relevant Rule 2 of Rules of 1974 as amended in the year 1980. The letter dated 22.12.2010 issued by Deputy Secretary Madhyamic Shiksha Parishad verifying the petitioner's passing High School Examination in the year 1967 recording date of birth dated 1.1.1949. In reply thereto the petitioner has filed rejoinder affidavit as well as supplementary rejoinder affidavit. These affidavits may be referred as and when it is required.
I have heard Sri R.B.Yadav, learned counsel for the petitioner and learned standing counsel and gone through the record of writ petition and various affidavits filed by the parties.
It is not in dispute that the petitioner has entered into service for the first time on 1.3.1980 and was made confirmed on 30.8.1982. The petitioner has filed an application for correction of date of birth only after receipt of the notice dated 20.3.2007 intimating him to retire with effect from 31.8.2007. The petitioner's application was considered only after the order of this Court dated 11.5.2007 passed in Writ Petition No. 22321 of 2007 and respondent no.3 has rejected the same on the ground of legal advice which was given on the basis of Rules of 1974.
For better appreciation the running language of Rule 2 of the Rules of 1974 as amended by first amendment in the year 1980 is reproduced below by splitting it into three parts.
(a) 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.
(b) 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 promotion, superannuation, premature retirement or retirement benetis and.
(c) No application or represention shall be entertained for correction of such date or age in any circumstances whatsoever.
From the perusal of impugned order dated 16.8.2007 which reads as under :-
^^ ekuuh; mPp U;k;ky; }kjk ikfjr vkns'k ij fof/k vf/kdkjh ls fof/kd jk; yh x;h] ftl ij muds }kjk ;g jk; nh x;h fd ^^ mRrj izns'k lsok eas HkrhZ ¼tUe~ frfFk vo/kkj.k fu;ekoyh 1974½ ds izkfo/kkuksa ds vuqlkj lsok esa fu;qfDr ds le; vafdr tUe~ frfFk lHkh iz;kstuksa ds fy, lgh ekuh tk;sxh^^A It transpires that the legal adviser of the department has only considered the second conditions of the Rule 2 i.e. date of birth recorded in the service book at the time of entry into service be deemed to be correct and ignored the first part of amended Rule 2 which talks about the correctness of date of birth which is recorded in the High School certificate and has given opinion that it cannot be corrected. The Deputy Secretary of the U.P. High School and Intermediate Board has in fact admitted the factum of petitioner's passing High School in the year 1967and issuing of High School certificate containing date of birth dated 1.1.1949 (annexure 2 to the supplementary counter affidavit). Now in this context the last proviso of Rule 2 which contains the words "no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever." is required to be considered. For understanding the object of the relevant rule, the last portion of the Rule cann't be read in isolation and it has to be read as a whole i.e. along with part (a) (b) and (c) as spilitted above. The words used "No application or represention shall be entertained for correction of such date or age in any circumstances whatsoever." is referable to the date of birth recorded in the High School certificate as well as date of birth recorded in service book.
If the language used in the second part (Part b) of Rule 2 of first amendment 1980 is looked into, it will transpire that this part will only come into play when the first part is missing i.e.if a government servant has not passed High School Examination while entering into the service then the date of birth recorded in the service book shall be deemed to be correct and if the government servant has passed High School Examination prior to entry into service then the date of birth recorded in the High School certificate shall be deemed to be correct.
The word used in the bottom of Rule i.e., no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever, is to be read such date means the date of birth either recorded in the High School certificate or service book and for such correction of date of birth no application shall be entertained. Here the situation is very anomalous as admittedly the petitioner has passed High School Examination prior to the joining of service in the year 1980 and in the High School certificate his date of birth is recorded on 1.1.1949 and in the service book it is recorded as 20.8.1947 and if the rule is literally interpreted then no application can be entertained and that will defeat the very purpose/object of the Rule 2. Therefore, it is to be interpreted in a manner to achieve the object of the rule which can be done taking notice of the contents as contained in part (a) and (b), (beginning and middle part of the rule) the language used in Part (b) is very apparent and unambiguous saying that where a government servant has not passed such examination as aforesaid or has passed examination after joining the service the date of birth or age recorded in the service book at the time of his entry into government service shall be deemed to be correct but here the petitioner has already passed High School Examination therefore the Part (b) will not play any role and the date of birth recorded in the High School certificate shall prevail and only by giving this interpretation the object of the rule can be achieved. Therefore, I am of the considered opinion that the order passed by respondent no. 3 is unsustainable for the following reasons.
(a)The competent authority has not passed this order after applying his own mind and based his decision on the basis of legal advice. It is well settled that legal advice can be made a basis for passing the order but the competent authority authorised under statute to do a particular thing cannot wash off his hand from applying his own mind and basing the decision only on the basis of legal advice. The authority concerned ought to have applied his own mind before passing the impugned order taking note of the relevant provisions of the Rules as whole.
7(b) The Part (a) of Rule 2 as referred above has not been taken into consideration either by the legal adviser of the department or by the authority concerned who has passed the impugned order which clearly states that if the person has entered into service after passing High School Examination the date of birth recorded in the High School certificate shall be deemed to be correct. The part (b) which talks about the date of birth recorded in service book, if the employee has not passed High School Examination before entering into service or has passed after entering into service will be eclipsed by the shadow of part (a).
In this case, there appears to be one interesting feature that even the medical certificate on the basis of which date of birth as has been recorded in service book is not based on any medical examination. From the perusal of the medical certificate annexed with the counter affidavit sworn on 21st May, 2008 by Doctor D.P.Rai, it transpires that it is a certificate mentioning therein that according to the candidate/petitioner's statement, his age is 27 years whereas by appearance he appears to be 35 years. In the service book, the petitoner's date of birth is recorded 20.8.1947 it has neither been recorded on the basis of petitioner's statement nor on the basis of Doctor's report, according to the doctor, the petitioner appeared to him to be 35 years. If the petitioner's statment was taken to be true that he is of 27 years, the date of birth in the year 1980 should have been recorded as 1953 and if it was recorded according to doctor's assessment it was to be 1943 as the doctoer has assessed him as 35 of years.
I am of the view that doctor's certificate could only be taken into consideration if the petitioner had not passed High School Examination.
It appears that the respondent had not required the petitioner to file High School certificate which is born out from the perusal of paragraph no. 5 of the writ petition, which is reproduced below :-
That in brief the facts of the case are huge posts of Class IV employees in P.W.D. National Highway Division Varanasi arose and the petitioner along with other persons appeared and selected and they were sent for medical examination before the Chief Medical Officer and at that time the respondents did not accept the High School Certificate.
There is no specific denial of paragraph no. 5 but the vague reply of paragraphs no. 2 to 18 have been filed in paragraph no. 9 of the counter affidavit which is reproduced below.
That the contents of paragraphs no. 2 to 18 of the writ petition are not admitted hence denied. In reply it is submitted that the petitioner, Hari Ram Gupta was appointed as Roller Driver in the office of the answering respondent and at the time of confirmation the petitioner was medically examined by the Senior Medical Superintendent, Varanasi and on 20.8.1982 and at that time the age of the petitioner was recorded as 35 years in the service book and the petitioner also accepted and made signature on his service-book. Thereafter the service-book of the petitioner was prepared and the date of birth mentioned as 20.8.1947 as per Medical Examination Certificate. It is further submitted that the petiioner has not submitted any objection at the time regarding his date of birth. After a long gap first time the petitioner submitted a representation with objection on 30.3.2007 that the date of birth, which is registered in the service-book is not correct and the petitioner has also filed a writ petition no. 22321 of 2007 before this Hon'ble Court. It is further submitted that in compliance of the Hon'ble Court by order dated 11.5.2007 passed by this Hon'ble Court the answering respondent decided the representation of the case and on 17.8.2007 the same shall be communicated to the petitioner.
It is further submitted that in the aforesaid order, the answering respondent stated that the date of birth, which is recorded in your service book would be treated as correct in all respect and the petitioner has not objected from last 24 years regarding his date of birth therefore after expiry of 24 years the such type of objection is rightly rejected by the answering respondent. It is also settled by the Hon'ble Apex Court as well as Hon'ble High Court that fake end of the services of the employee the correction in the date of birth is not permissible therfore on this sole ground the writ petition is liable to be dismissed.
From the perusal of reply of paragraphs no. 2 to 18 it transpires that the respondents have understood the doctor's certification as correct proof of age which is apparently illegal as there was no real assessment of the age after medical examination of the petitioner but it appears that it was a mere suggestion of a doctor and date of birth recorded in the service book on the basis of mere suggestion of a doctor to my mind cannot prevail over the date of birth recorded in High School certificate that too in the circumstances when the petititioner has entered into service before passing the High School Examination.
Had the respondents required the petitioner to produce the High School Certificate, there was no occasion for the petitioner to conceal the same. Prima facie it appears to be an outcome the ignorance of the petitioner and non application of mind of the respondents as well who have treated the certificate of the doctor as correct which was merely an advice and not the certificate based on any medical examination of the person concerned, on this ground also the concerned respondent ought to have applied his mind before rejecting the petitioner's application.
So far as the change of date of birth at the fag end of service is concerned, the Hon'ble Apex court as well as this Court has never prohibited the same but has observed that the court should move on slow pace in interfering with these kind of matters.
The Apex Court in Union of India Vs. Harnam Singh 1993 (2) SCC 162 has observed as under.
" 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."
An application for correction of the date of birth should not be dealt with by the courts, the 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 lose 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, ismade 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 corrrection 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 dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if untimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced beause if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior.
The same view has been taken by the Apex Court in the case of State of Gujarat Vs. Vali Mohd. Dosabhai Sindhi 2006 (6) SCC 537.
The Apex Court again in the case of Punjab and Haryana High Court at Cnandigarh Vs. Megh Raj Garg and another AIR 2010 SC 2295 has observed as under.
" 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 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 sleepover their rights and allow the period of limitation to expire.
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. 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 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 dates of birth in the service books.
Form the perusal of dictum laid down by the Apex Court it is clear that the Apex court has not totally closed the door for correction of date of birth but whatsoever has been observed by the Apex Court is that no application shall be entertained after period of limitation prescribed under the relevant rules coupled with the fact that if there is no rule it has to be filed within reasonable time. Further the correction must be sought on the basis of concreate material which is unrefutable. These are three parameters which have to be weighed while dealing with the matter of correction of date of birth in the service book. Here in the Rule of 1974 no limitation is prescribed for applying for correction of date of birth in the service book and in fact it prohibits the correction. As I have observed if the Rule 2 is read as whole then it will transpire that the date of birth recorded in the High School Certificate or equivalent examination or in absence of High School certificate before entering into service the date of birth recorded in the service book shall be deemed to be correct and the last portion of the rule provides that no application for correction of date of birth shall be entertained. Here in fact, literally the petitioner has filed an application for correction of date of birth but if one goes by the rule 2 which is relevant rule, the correction is automatic as the petitioner has brought in the notice of the employer that he has entered in the service after passing High School Examination in the year 1967 and there his date of birth is recorded 1.1.1949 and the date of birth in the service book will only prevail when the petitioner has not passed High School Examination prior to entry into service and it will come into play in absence of the employees non passing of High School Examination before entering into service. So far as the petitioner's coming for correction at the later stage is concerned, it is known fact that service records are always kept in the custody of employer and the petitioner being Class IV employee cannot be judged on high parameter of legal mechanism.
Therefore I am of the opinion that the respondents were duty bound to correct the date of birth as mentioned in the High School certificate, which has not been disputed by the respondents, only on intimation of the petitioner.
The view taken by me also find support from the decision of this Court reported in the case of Hari Shankar Pandey Vs. U.P. Power Corporation, Lucknow and others 2006 (1) ESC 80 (All). where this Court has held that the date of birth recorded in the High School certificate if the employee has entered into service after passing High School Examination shall be deemed to be correct. On the same line, a Division Bench of this Court in the case of State of U.P. Vs. Krishna Murari Lal reported in 2008 ESC (4) 2251 has observed as under :-
(6) ...................It is also not disputed that the petitioner had appeared in the High School examination prior to joining the service where his date of birth is also entered as 31.5.1945, therefore, the contention of the learned Standing Counsel that the petitioner is estopped from challenging his date of birth entered in the service record on the eve of his retirement, cannot be maintained. Once an incumbent had a High School certificate before joining the service, the said date of birth shall be taken to be final. The petitioner had no opportunity to challenge the entry because in all his papers including seniority list etc., the same date of birth as entered in his High School certificate was reflected and it is evident that the aforesaid anomaly has come to his notice only at the time of his retirement.
(13) From the perusal of the said Rule 3, it is clear that date of birth of a government servant as recorded in the certificate of his having passed the high School or equivalent examination or where a Government servant has not passed any such examinations aforesaid, the date of birth recorded in his service at the time of his entry into Government service shall be deemed to be his correct date of birth.
(14) The aforesaid rule clearly indicates that date of birth of a Governemnt servant as recorded in the certificate of his having passed the High School or equivalent examination or where a Government servant has not passed such examination, the date of birth recorded in his service at the time of his enry into government service has to be treated as correct date of birth of the Government servant.
Here in this case, the Division Bench has allwed the appeal and quashed the order passed by Hon'ble Single Judge for correcting date of birth on the basis of High School certificate only on the ground that in the year 1959 the petitioner in that case had only appeared in the High School Examination and failed whereas Rule 2 requires that the person must have passed High School Examination before entering into service. In the present case, it is not in dispute that the petitioner has entered into service after passing High School Examination in the year 1980.
In view of the foregoing discussions, the writ petition succeeds and is allowed. The impugned order 16.8.2007 passed by respondent no. 3 is hereby quashed as the petitioner has retired in the year 2007 therefore no direction can be issued for reinstatement in service.
It is also observed that as the petitioner has not worked due to pendency of writ petition after the retirement treating the date of birth as 1947, therefore on the principle of 'no work no pay' no direction is being issued for paying the salary on the basis of date of birth recorded in the High School certificate dated 1.1.1949.
However the respondents are directed to pay Rs. 50,000/- lump sum and grant the post retiral benefits treating him in service on the basis of date of birth recorded in High School certificate i.e. 1.1.1949. The respondents are also directed to release the post retiral dues and other benefits within a period of three months from the date of receipt of certified copy of the order of this Court.
It is also provided that no application shall be entertained for payment of arrears of salary etc. except the post retiral dues on the basis of petitioner's continuance in service on the basis of date of birth recorded in the High School certificate in view of the judgment of the Apex Court in the case of Punjab and Haryana High Court (supra) which provides that correction of date of birth at fag end of service not only related to the petitioner but it also affects others.
Order Date :- 31.5.2011 Pratima