Rattan Singh Roop vs Bharat Heavy Electrical Ltd. And ...
2008 Latest Caselaw 222 Del

JUDGMENT

Anil Kumar, J.

1. The petitioner has sought quashing of office order dated 23rd March, 1996 relieving the petitioner on afternoon of 23rd March, 1996, (24th being Sunday) from Bharat Heavy Electricals Ltd and a direction to respondent No. 1 to reinstate the petitioner in the services and pay the salaries and allowances after correcting his date of birth from 8th March, 1938 to 9th March, 1939 as recorded with the respondent No. 1.

2. The petitioner has contended that he did his matriculation from Punjab University in the examination held on March 1995 and a matriculation examination certificate was issued to him where his date of birth was recorded as 8th March, 1938.

3. According to him, his date of birth was recorded wrongly in the school on account of clerical mistake while converting the date of birth recorded in Vikrami Era (Hindi Calendar) to Esvi Era (English Calendar) on admission of the petitioner in a different school for his matriculation examination. After completing his schooling from Punjab University, the petitioner joined as a Overseer Electrical after passing Diploma in Electrical Engineering from University of Rurki, Rurki. According to the petitioner, in March 1989 one of his friends while flipping through his school record told him that his date of birth recorded as 25th Phagun, 1995 (Vikrami Era) in the transfer certificate of 8th class issued by A.V. Middle School, Gharuan, District Ropar, Punjab, does not tally with the date of birth recorded as 8th March, 1938 on conversion to English Calendar in the admission form to the 10th class of Khalsa High School, Kurali, District Ropar, Punjab. According to the petitioner, on conversion his date of birth should have been 9th March, 1939 and not 8th March, 1938 which mistake was inadvertently committed by the concerned school.

4. It is averred that the petitioner thereafter applied to Punjab University by letter dated 27th April, 1989 for correction of his date of birth in the matriculation certificate issued to him. The Punjab University ultimately alleged to have issued a letter dated 4th December, 1994 asking the petitioner to submit an application form along with Rs. 1000/- which was complied with by the petitioner and ultimately the petitioner was issued a corrected Punjab University Matriculation Certificate dated 13th March, 1996 indicating his date of birth as 9th March, 1939 in place of 8th March, 1938.

5. The petitioner is alleged to have also requested the respondent No. 1 to correct his date of birth in their records by a communication dated 25th November, 1994. He also forwarded the corrected matriculation certificate to the concerned AGM (PandA) of respondent No. 1 by his letter dated 14th March, 1996 pursuant to a letter from respondent No. 1 dated 30th January, 1996 communicating to the petitioner that unless a corrected certificate is submitted by the petitioner at least two weeks in advance, the petitioner shall be retired from the services on 24th March, 1996 as per the date of birth recorded in the records.

6. The petition was filed by the petitioner on 2nd July, 1996 after he was retired from the service by letter dated 23rd March, 1996. The respondent No. 1 has contested the petition contending that the last post held by the petitioner was that of a Deputy General Manager. He had joined the services of respondent No. 1 on 10th June, 1963 as Overseer and furnished his date of birth as 8th march, 1938. The petitioner is an educated person with Diploma in Engineering and he took no steps for almost 30 years to have his date of birth changed. In the circumstances, it is contended by the respondent No. 1 that after he has been correctly superannuated on 24th March,1996, the petitioner is not entitled for change of date of birth nor he is entitled for any benefit which may accrue on account of change of his date of birth. Regarding the cases of Pritam Singh and Surinder Singh, it was contended that they had no certificates and correction in their dates of birth were made well in time. In any case, it was contended that Mr.Pritam Singh as per his corrected date of birth had to retire in the year 2000 and Mr.Surinder Singh is due for retirement in 2003 and their cases are different from that of the petitioner. Regarding the case of Daya Singh, it was contended that no change has been made in the date of birth of Daya Singh. In the circumstances, it is contended that there is no discrimination with the petitioner. The petitioner was promoted as Deputy General Manager on 25th June, 1994 and his next promotion, if any, could have been due only in June 1997 and in the circumstances, it is contended that the date of birth of the petitioner could not be changed and he has already retired and even on the basis of his alleged change of date of birth, he cannot be inducted in service and no emoluments can be paid to the petitioner for the period he has not worked merely on the basis of alleged change of date of birth.

7. I have heard the learned Counsel for the petitioner in detail and have perused the writ petition, reply filed on behalf of the respondent no. 1. No one has appeared on behalf of the respondents. The emphasis of the learned Counsel for the petitioner is that the change in date of birth was sought on account of clerical error which appeared on account of transferring the date of birth in the school from Hindi Calendar month to English Calendar Month. It is not disputed that the petitioner did his matriculation in 1955 and a certificate was issued to him showing his date of birth as 8th March, 1938. This is not the case of the petitioner that when the matriculation certificate of Punjab University was issued to him 1955, he did have his birth certificate of 8th class showing his date of birth according to Hindi Calendar. The petitioner after doing his matriculation has done his course of Diploma in Electrical Engineering from Rurki University and thereafter joined the services of respondent No. 1. During all this time the petitioner had his certificate giving the Hindi Calendar month with him. The petitioner being an educated person ought to have known that his date of birth is not allegedly in consonance with his Hindi date of birth. Nothing has been produced by the petitioner to show his Hindi date of birth.

8. This is no more res integra that a Government official or an educated employee cannot be allowed to change his date of birth at the fag end of his career. Though the learned Counsel for the petitioner has contended that the petitioner did not seek change of his date of birth at the fag end of his career as he had applied to Punjab University in 1989 and since the Punjab University took considerable time, therefore, the petitioner could apply to the respondent No. 1 for change of date of birth in 1994. The plea of the petitioner that he did not apply for change of date of birth at the fag end of his career cannot be accepted in the facts and circumstances of the present case. The petitioner joined the services of the respondent no. 1 in 1963 and he retired in 1996. Even if he applied to the Punjab University in 1989, it will be fag end of his career. The petitioner applied to the respondent no. 1 in 1994 and sent the allegedly corrected matriculation certificate just days before the retirement. Since the petitioner was employed with the respondent No. 1 on 10th June, 1963, the demand for change of date of birth in 1994 after a service of about 31 years, which is two years before the retirement in 1996, in the facts and circumstances, has to be construed as demanding change of date of birth at the fag end of the career which cannot be permitted in the facts and circumstances.

9. Learned Counsel for the petitioner has also emphasized on the letter dated 30th January, 1996 by respondent No. 1 demanding that the matriculation certificate with corrected date of birth be submitted two weeks before the retirement so as to carry out the change of date of birth. Learned Counsel has contended that this amount to estoppel on the part of the respondent No. 1. Admittedly, the petitioner had retired on 24th March, 1996 whereas the alleged corrected certificate with changed date of birth was sent on 14th March, 1996 which was not in consonance with the tenor of the letter dated 30th January, 1996 which demanded that the letter for change of birth be submitted at least two weeks in advance. In any case in the facts and circumstances and the established law, the petitioner cannot seek change of date of birth on the basis of alleged estoppels.

10. The importance of the date of birth of an employee given to his employer and accepted as correct by the later and entered in the? Service and Leave record? of the former, cannot be underestimated. When a person is taken into service on appointment, he is required to declare his date of birth and produce a document in support there of. When on the basis of such declaration made or certificate produced by the employee, an entry is made of his date of birth in his record and there is no error on the part of the officials, then the Government or the employer at the fag end of the career of such employee, can decline to change the date of birth. Changing the date of Birth in exercise of jurisdiction under Article 226 of the Constitution of India, in such facts and circumstances is unwarranted. Extra ordinary nature of the jurisdiction vested in the High Court's under Article 226 of the Constitution of India is not meant to make employees of the Government or its instrumentalities to continue service beyond the period of their entitlement according to the date of birth accepted by such employers on the basis of such newly found material or to grant relief regarding emoluments on the basis of such change of date of Birth. The Supreme Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri had held that the service record cannot be changed just a few years before the retirement or at the fag end of his retirement. The Apex Court had held as under:

...It is thus seen from the above quoted judgments that this Court has consistently taken the view that correction in entries made in government records on the basis of which the government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement.

11. The Supreme Court had also held in Union of India v. Harnam Singh that the alteration sought by an employee 35 years after his induction into service during which he had several occasions to see the service book cannot be allowed. The Supreme Court had held as under:

...In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended Note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service-book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.

12. This is not disputed by the petitioner that the entry in the service record was made on the basis of Matriculation certificate produced by him. There was no mistake in the entry made on the basis of the certificate produced by him. The school certificate on the basis of which, the change of date of birth is sought by the petitioner had always been with him. The change of date of birth is not on the basis of some new material discovered by him. The authenticity of the school certificate on the basis of which Matriculation certificate was got changed by the Punjab University has not been produced. The change of date of birth in the Matriculation certificate by the University almost after thirty three years will not bind the Employer to change the date of birth of the petitioner.

13. In Commissioner of Police, Bombay v. Bhagwan V. Lahane (1991) 1 SCC 247, the Apex Court had observed as under:

It appears that he got the entry in the birth register corrected, then obtained a copy of it and produced the same before the authority. Once it was found to be doubtful, the authorities were right in not correcting his date of birth in the service-book. Admittedly, the School Leaving Certificate was produced by the respondent and the entry in the service-book was made on the basis of the date of birth mentioned therein. As he failed to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, the Tribunal ought not to have directed the appellant to correct the same.

14. For the foregoing reasons, there are no grounds to quash the letter dated 23rd March, 1996 retiring the petitioner from the afternoon of 23rd March, 1996 nor there is any ground to direct the respondent No. 1 to change the date of birth. The petitioner has already retired and the period for which he would have worked more in case his date of birth could be changed has also expired without petitioner doing any work during this period. Consequently there is no ground to award any monetary benefit to the petitioner for this period. The petitioner is not entitled for any amount as his date of birth cannot be allowed to be changed in the record of the respondent no. 1.

15. The writ petition, in the facts and circumstances, is without any merit and is, therefore, dismissed. The parties are, however, left to bear their own costs.