Laxmi Singh Verma vs Hp Board Of School Education And ...
2021 Latest Caselaw 90 HP

     IN THE      HIGH      COURT OF           HIMACHAL PRADESH, SHIMLA
                                                              RSA No. 93 of 2017
                                                           Reserved on 1.1.2021
                                                     Date of Decision: 4.1.2021.




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    Laxmi Singh Verma                                                    .........Appellant.
                                        Vs.





    HP Board of School Education and Anr.                                ......Respondents.

    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1? Yes.





    For the appellant:         Mr. P.S. Goverdhan, Advocate, through Video
                               Conferencing.
    For the respondents:       Mr. Lovneesh Kanwar, Advocate, through Video
                               Conferencing.
          ____________________________________________________________________

    Sandeep Sharma, J. (Oral)

Instant regular second appeal filed under Section 100 CPC, lays

challenge to the judgment and decree dated 6.1.2017, passed by the learned

District Judge, Solan, District Solan, H.P., in CA No. 31-S/13 of 2015, titled Laxmi

Singh Verma v. HP Board of School Education Dharamshala, affirming the

judgment and decree of dismissal dated 29.5.2015 passed by the learned Civil

Judge (Jr. Div.), Solan, in CS No. 480/1/14/111, whereby suit for declaration,

mandatory and permanent prohibitory injunction filed by the appellant-plaintiff

(herein after referred to as "the plaintiff"), seeking therein declaration that date

of birth of the plaintiff is 13.2.1964 and not 13.2.1963 as has been wrongly

mentioned in the matriculation certificate.

2. For having bird's eye view, certain undisputed facts as emerge

from the record are that the plaintiff filed a suit under Sections 34, 38 and 39 of

Whether reporters of the Local papers are allowed to see the judgment?

Specific Relief Act, 1963 in the court of learned Civil Judge (Jr. Div.) Court No.2

Solan District Solan, H.P., for declaration, mandatory and permanent prohibitory

injunction, averring therein that the plaintiff was born on 13.2.1964 and such fact

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after his birth was got recorded by his parents in the records of local Gram

Panchayat Deothi, Tehsil Rajgarh, District Sirmaur, H.P. Plaintiff averred that his

parents also got entered the date of birth of other children in the record of

Panchayat including his elder brother, who was born on 15.6.1962. Plaintiff

averred in the suit that on account of bonafide and inadvertent mistake,

parents of the plaintiffs, who are rustic, simpleton and illiterate villagers, wrongly

got his death of birth recorded as 13.2.1963 while admitting him in school, as a

consequence of which, his date of birth, wrongly came to be recorded in the

school records as 13.2.1963 instead of his actual date of birth i.e. 13.2.1964.

Aforesaid mistake committed at the time of the admission in the school

remained unnoticed till the time plaintiff in December, 2009 visited his village to

attend a meeting convened in Panchayat, as a consequence of which, date

of birth of the petitioner came to be recorded as 13.2.1963 in class 8th as well as

matriculation examination certificates. Plaintiff averred in the suit that in

December, 2009, he got an occasion to see original records of Panchayat while

he had gone there to attend some meeting. Plaintiff immediately after having

noticed factum with regard to wrong recording of his date of birth in the school

records made a representation dated 29.4.2010 (Ext.PW1/B), to the Secretary,

Himachal Pradesh Board of School Education (defendant No.1), praying therein

to correct his date of birth from 13.2.1963 to 13.2.1964 in the middle as well as

matriculation Certificates. However, aforesaid representation of the plaintiff

came to be rejected vide communication dated 31.5.2010 sent under the

signatures of Assistant Secretary, Himachal Pradesh Board of School Education

(Ext.PW1/D) on the ground that as per rules of the Board, there is no provision to

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make correction of date of birth in certificate of 8th standard, rather such

correction is only made in the 10th certificate. Aforesaid authority vide aforesaid

communication also apprised the plaintiff that since he has requested for

correction of his date of birth on the basis of record of Panchayat, his prayer for

correction cannot be acceded to in terms of rules occupying the field, rather

for this purpose, he is required to approach the appropriate court of law in

terms of Examination Regularizations Chapter-14, Rule 14.7.1. Immediately, after

having received aforesaid communication from the defendant-Board, plaintiff

filed suit at hand in the competent court of law making therein averments as

well as relief as have been taken note herein above.

3. Defendants by way of written statement refuted claim of the

petitioner on the ground of limitation, non-joinder and misjoinder of necessary

parties. On merits, defendants claimed that date of birth of the plaintiff was

recorded as 13.2.1963 in his service book on the basis of matriculation

examination certificate, which was made available by him at the time of his

selection. Besides above, defendant claimed before the court below that

prayer for correction of date of birth cannot be accepted at this belated stage

in terms of provisions contained in Himachal Pradesh Financial Rules, which

specifically provides that prayer, if any, for correction of date of birth in service

records is to be made within a period of two years from the date of his entry in

the government service. Lastly, defendants claimed that defendant-Board

records the particulars in the certificate on the basis of admission forms as filled

up by the candidates and countersigned by the school authorities and as such,

they are also required to be impleaded as a party respondent. With the

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aforesaid submissions, defendants sought dismissal of the suit.

4. Plaintiff by way of replication while refuting the averments made in

the written statement re-affirmed the averments made in the plaint and court

below on the basis of perusal of pleadings adduced on record by the

respective parties framed following issues:

1. Whether the correct date of birth of the plaintiff, Sh. Laxmi Singh Verma, is 13.2.1964 and not 13.2.1963 , as alleged ? OPP

2. Whether the plaintiff is entitled to the decree for permanent

prohibitory injunction against the defendants, as alleged ?OPP

3. Whether the plaintiff is entitled to decree for mandatory injunction against the defendants, as alleged? OPP

4. Whether the plaint is barred by limitation? OPD

5. Whether the suit is bad for non-joinder of parties, as alleged? OPD

6. Whether present suit is filed at belated stage and is not maintainable, as alleged? OPD.

7. Relief.

5. Subsequently, learned trial Court below decided all the issues save

and except issues No. 5 and 6 against the plaintiff and dismissed the suit of the

plaintiff primarily on the ground of delay and laches . Issue No. 5 with regard to

non-joinder of the parties was not pressed by the defendants and as such, same

was disposed of as not pressed.

6. Being aggrieved and dissatisfied with the aforesaid judgment of

dismissal recorded by the learned trial court, plaintiff preferred an appeal in the

court of learned District Judge Solan, which also came to be dismissed vide

judgment dated 6.1.2017. In the aforesaid background, plaintiff has

approached this Court in the instant proceedings, praying therein to allow his

suit in its entirety after setting aside impugned judgments and decrees passed

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by the courts below.

7. Aforesaid appeal having been filed by the plaintiff came to be

admitted by a co-ordinate Bench of this Court on 2.8.2017, on following

substantial question of law

"Whether on account of misreading, mis-appreciation and

misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and

vitiated is not legally sustainable?"

8. Having heard learned counsel for the parties and perused

pleadings adduced on record by the respective parties vis-à-vis reasoning

assigned by the courts below while dismissing the suit for declaration filed by the

plaintiff, this Court finds substantial force in the submissions made by Mr. P.S.

Goverdhan, learned counsel for the appellant-plaintiff, that courts below have

miserably failed to appreciate the evidence as well as rules framed by the

defendant-board with regard to correction of date of birth in his 8th and 10th

certificates and as such, prayer made on behalf of the plaintiff in the instant

proceedings deservers to be considered.

9. Mr. Lovneesh Kanwar, learned counsel representing the

defendant while vehemently arguing that though there is overwhelming

evidence adduced on record suggestive of the fact that representation having

been made by the plaintiff, praying therein defendants to correct his date of

birth in his service book or official record was time barred and no plausible

explanation ever came to be rendered on record on behalf of the plaintiff with

regard to delay in approaching authorities with a prayer to correct his date of

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birth, contended that even otherwise appeal having been filed by the plaintiff

deserves outright rejection being not maintainable against concurrent finding of

fact and law recorded by the courts below. While placing reliance upon the

judgments passed by the Hon'ble Apex Court in Narendra Gopal Vidyarthi vs.

Rajat Vidyarthi, (2009)3 SCC 287, (2000)3 SCC 708 and Laxmidevamma and

Others vs. Ranganath and Others, (2015)4 SCC 264, Mr. Kanwar, forcibly

contended that present appeal is not maintainable because this Court while

exercising power under Section 100 CPC has very limited scope to up-set/re-

appreciate the concurrent findings of fact and law recorded by the courts

below, especially when plaintiff has not been able to show any perversity in the

same and as such, same deserves to be quashed and set aside.

10. Since specific objection with regard to maintainability of present

appeal, in view of concurrent findings of fact recorded by Courts below, has

been taken by the defendants, this Court deems it necessary to deal with the

same at first instance before exploring answer, if any, to the substantial question

of law formulated hereinabove. Though learned counsel representing the

defendants has placed reliance upon the judgments, as have been taken note

above, this Court deems it proper to take into consideration latest judgment

passed by Hon'ble Apex Court in Laxmidevamma's case supra, wherein it has

been held as under:-

"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs

have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule

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property for road and that she could not have full-fledged right

and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in

view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269)

11. Perusal of the aforesaid judgment suggests that in exercise of

jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset

by the High Court unless the findings so recorded are shown to be perverse. This

Court, after having taken note of observations made by Hon'ble Apex Court in

judgment supra, sees no reason to differ with the argument having been made

by learned counsel representing the defendants that in normal circumstance

concurrent findings of fact recorded by Courts below should not be interfered

with by the High Courts, rather High Courts, while exercising powers under

Section 100 CPC, are restrained from re-appreciating the evidence available on

record. But, aforesaid judgment passed by Hon'ble Apex Court, nowhere

suggests that there is complete bar for High Courts to upset the concurrent

findings of the Courts below, especially when finding recorded by Courts below

appears to be perverse.

12. It is well settled by now that a finding of fact itself may give rise to

a substantial question of law, inter alia, in the event the findings are based on

no evidence and/or while arriving at the said findings, relevant admissible

evidence has not been taken into consideration or inadmissible evidence has

been taken into consideration or legal principles have not been applied in

appreciating the evidence, or when the evidence has been misread. In this

regard, reliance is placed upon the judgment of Hon'ble Supreme Court in

.

Chandna Impex Private Limited vs. Commissioner of Customs, New Delhi,

(2011)7 SCC 289, wherein the Hon'ble Apex Court has held as under:-

"14. In Hero Vinoth Vs. Seshammal, (2006)5 SCC 545, referring to the Constitution Bench decision of this Court in Sir Chunilal V. Mehta & Sons Ltd. Vs. Century Spg. & Mfg. Co.Ltd., AIR 1962 SC

1314, as also a number of other decisions on the point, this Court culled out three principles for determining whether a question of law raised in a case is substantial. One of the principles so summarised, is : (Hero Vinoth case, SCC p.556, para 24) "24.(iii) The general rule is that High Court will not interfere with the

concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the

courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a

total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding". (p.294)

13. Hon'ble Apex Court in D.R. Rathna Murthy vs. Ramappa, (2011) 1

SCC 158, has specifically held that High Court can interfere with the findings of

fact even in the second appeal, provided the findings recorded by Courts

below are found to be perverse. It has further been held in the case supra that

there is no absolute bar on the re-appreciation of evidence in those

proceedings; however, such a course is permissible in exceptional

circumstances. The Hon'ble Apex Court has held as under:-

"9. Undoubtedly, the High Court can interfere with the findings of fact even in the Second Appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on

record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, (2000)6 SCC 120; Hafazat Hussain v. Abdul

.

Majeed, (2001) 7 SCC 189 and Bharatha Matha & Anr. v. R. Vijaya

Renganathan, (2010)11 SCC 483.)" (p.162)

14. Hon'ble Apex Court in Santosh Hazari vs. Purushottam Tiwari

(Deceased) By LRs., (2001)3 SCC 179, has held that appellate Court ought not

to interfere with the findings of trial Judge on a question of fact unless the latter

has overlooked some peculiar feature connected with evidence of a witness or

15.

r to such evidence on balance is sufficiently improbable so as to invite

displacement by appellate Court.

Careful reading of aforesaid law laid down by Hon'ble Apex Court

clearly suggests that there is no blanket bar for High Courts to upset the

concurrent findings of Courts below, especially when it emerge from the record

that (i) the Courts below have ignored material evidence or acted on no

evidence; (ii) the courts have drawn wrong inferences from proved facts by

applying the law erroneously; or (iii) the courts have wrongly cast the burden of

proof. Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and

Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161, has

held as under:

"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555- 56)

"24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the

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application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court should be satisfied that the case involves a

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substantial question of law, and not a mere question of law. A

question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A

substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of

law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the courts

below have ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this

Court to interfere with the same." (pp.174-175)

16. It is quite evident from the aforesaid exposition of law that even

concurrent findings of fact recorded by Courts below can be interfered

with/upset by the High Courts, while exercising power under Section 100 CPC, if

it is convinced that findings recorded by Courts below are not based upon any

evidence and same are perverse. At this stage, it may be noticed that during

the proceedings of the case, learned counsel representing the appellant-

plaintiff was able to point out certain material irregularities/illegalities committed

by Courts below, while examining/analyzing the evidence adduced on record

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by both the parties and as such this Court deems it proper to examine the

pleadings/evidence adduced on record by the respective parties in support of

their respective claim so that correctness and genuineness of arguments made

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by learned counsel to the effect that judgments passed by Courts below are

wholly perverse, is ascertained.

17. Now being guided with the aforesaid settled proposition of law,

this Court would proceed to ascertain the correctness and genuineness of the

submissions made by the learned counsel for the plaintiff that court below have

mis-appreciated and misconstrued the evidence as well as rule governing the

fields with regard to correction of date of birth in the respondent-department.

18.

It is the own case of the plaintiff as set out in the plaint that his

parents after his birth on 13.2.1964 rightly got his date of birth recorded as

13.2.1964 in the concerned gram panchayat, but at the time of admission,

inadvertently, the same came to be recorded by them as 13.2.1963 in school

records, as a consequence of which, date of birth of the plaintiff came to be

shown as 13.2.1963 in 8th and 10th Class examination conducted by the board of

school examination. It is also not in dispute that plaintiff joined office of

department-Board on 3.10.1987 as clerk and his date of birth was recorded on

the basis of matriculation certificate. Plaintiff has neither claimed nor has

disputed that he after his selection had furnished matriculation examination

containing his date of birth as 13.2.1963, rather plaintiff has claimed that

inadvertent mistake committed by his parents at the time of his admission in

school remained unnoticed till December, 2009 by which time, he had already

passed class 8th and 10th examination conducted by the defendant Board.

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Pleadings adduced on record by the plaintiff, which defendants have not been

able to rebut, show that factum with regard to wrong entry of date of birth in

school records came to the knowledge of the plaintiff in December, 2009, when

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he happened to visit his gram Panchayat in connection with some meeting. It is

also not in dispute inter-se parties that immediately after having discovered

factum with regard to wrong entry of date of birth in school records, plaintiff

filed representation (Ex.PW1/B) to the Secretary, Himachal Pradesh Board of

School Education. Perusal of aforesaid exhibit, which stands duly proved on in

accordance with law, clearly reveals that plaintiff claimed before the

respondent-board that his date of birth has been wrongly shown in the middle

standard as well as matriculation certificates as 13.2.1963, whereas correct date

of birth is 13.2.1964 as is evident from Part-1 of Gram Panchayat Deaothi,

Majhgaon, Tehsil Rajgarh, District Sirmaur, H.P. In the aforesaid communication,

plaintiff has categorically stated that he discovered the fact with regard to his

wrong entry of date of birth in records in December, 2009 when a meeting of

Census 2011 took place at Gram Panchayat Deothi Majhaon, Tehsil Rajgarh,

District Sirmour, H.P. Pleadings as well as evidence adduced on record by the

respondent-Board nowhere suggest that effort, if any, ever came to be made

at the behest of the respondent-board to verify the correctness and

genuineness of the contents contained in the aforesaid communication

Ext.PW1/B, rather respondent Board vide communication dated 31.5.2010

Ext.PW1/D informed the plaintiff that correction, if any of date of birth is only

made in the certificate of 10th class, not in 8th class and his prayer for correction

of date of birth cannot be acceded on the basis of Panchayat record, rather

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for that purpose, he may have to approach the court of law in terms of

Examination Regulations, Chapter 14, Rule 14.7.1, which provide that an

application regarding change in date of birth may be considered on payment

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of prescribed fee provided the change has been admitted in the court of law.

It further stands proved in the case at hand that plaintiff after receiving

aforesaid communication, approached the competent court of law by way of

CS No. 480/1/14/111, which interestingly came to be refuted/contended

by the respondent defendant on the ground that it has no power to effect

change of date of birth in the service book, rather such power vests in court,

but written statement filed by the defendants, if perused in its entirety, it clearly

reveals that claim of the plaintiff came to be refuted on the ground that since

plaintiff approached the respondent board after a considerable delay, prayer

cannot be acceded to. In support of aforesaid contention, though plaintiff

placed on record certain documents alongwith its reply as Annexures D1, D2,

D3 and D4, but same never came to be tendered in evidence and as such,

cannot be read as evidence in support of the pleadings. Otherwise also,

perusal of Annexure D-1 available at page-41 of learned trial court file reveals

that clause 7.1 (d) of HP Finance Rules, 2009 though provides for correction of

date of birth in service records, but prayer for such correction, if any, can be

made within a period of two years from the date of entry in the government

service. It would be apt to take note of provision contained in 7.1 (d), which

reads as under:-

7.1 (d) (1) in regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Government service, shall as against the Government servant in question, be deemed

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to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any

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time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of service of a gazetted Government servant is incorrect and has

been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom. (2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded,

an inquiry shall be made to ascertain his correct age and reference shall be made to all available sources of information such as certified copies of entries in the Municipal birth register. University or School age certificates, JANAMPATRI (horoscope) as

the case may be. It should, however, be remembered that it is

entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily

proved that the date of birth as originally given by the applicant as a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate in available, the

date of birth recorded in the certificate will be deemed to be the correct age.

(3) The result of every such inquiry should in the case of Gazetted/Non-Gazetted Government servants be briefly stated in

their service cards/service books and if correction is sanctioned, the fact should be reported to the Accountant General."

19. Plaintiff, in the case at hand, with a view to prove issues No. 1, 2

and 3 and substantiate his claim examined himself as PW1 through his affidavit

Ext.PW1/A. Plaintiff while successfully proving contents of the plaint also proved

various documents i.e. application dated 29.4.2010 Ext.PW1/B, receipts

Ex.PW1/C, letter dated 31.5.2010, Ext.PW1/D, certificate from Gram Panchayat

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Deothi, Mark-A. Factum with regard to filing of representation on 29.4.2010

stands proved on record by way of Ext.PW1/B, but even otherwise, cross-

examination conducted on this witness by the defendants, if perused, it reveals

.

that such representation was duly acknowledged and replied by the

respondent-Board vide communication dated 31.5.2020 Ex.PW1/D.

20. Mr. Inder Singh, Panchayat Secretary, Gram Panchayat Deothi,

Majhgaon, Tehsil Rajgarh, District Sirmaur, H.P., while deposing as PW2 produced

Pariwar Register and deposed that in pursuance of entry made in the Pariwar

Register documents Ext.PW2/A certifying therein date of birth of the plaintiff as

13.2.1964 was issued by the concerned gram Panchayat. He specifically

denied suggestion put to him that he has prepared a false certificate in

connivance with the plaintiff. Interestingly, defendants did not lead any

evidence to refute the claim of the plaintiff. However, learned trial court below

merely by recording that plaintiff has to prove its case by standing on his own

legs for no cogent reasons completely ignored the evidence led on record by

the plaintiff and side tracked the main issue. Interestingly, learned trial court

while dismissing the suit filed by the plaintiff without there being any occasion

returned finding that the plaintiff has not been able to prove that real injustice

has been caused to him on account of rejection of his claim for correction of his

date of birth. It is also not understood that on what basis, learned trial court

arrived at a conclusion that plaintiff has failed to show that there is any genuine

threat to his legal status qua the alleged wrong date of birth in the school

records, probably, forgetting that correction, if any, of date of birth in

certificates would entitle the plaintiff to make representation for correction in

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service records and in case, such prayer is accepted, he would get one more

year of employment. Learned trial court below has gone astray while going into

the question of imminent necessity for such change and court below in suit for

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declaration ought not have or was not required to go into this aspect of the

matter, rather it on the basis of pleadings as well as evidence led on record is

/was expected to decide whether original date of birth of the plaintiff is

13.2.1964 or 13.2.1963. Interestingly, court below rejected the claim of the

plaintiff on the ground that he failed to place on record school marks

certificate/records qua which change/correction is sought for correction of

date of birth forgetting that there is/was no dispute inter-se parties that on

certificates of 8th and 10th class, date of birth of the plaintiff has been mentioned

as 13.2.1963 and plaintiff placing reliance upon record of gram Panchayat i.e.

pariwar register, approached the court of law seeking declaration that his

original date of birth is 13.2.196,4 but not 13.2.1963.

21. Court below while ignoring statement of PW2 Mr. Inder Singh i.e.

Panchayat Secretary, wherein he deposed that birth certificate was issued by

him on the basis of pariwar register, proceeded to record a finding that

evidence is silent as to whether register had authenticated entries therein as

regards the date of birth. Once aforesaid witness, by placing on record pariwar

register, successfully proved Ext.PW2/A i.e. certificate of date of birth certifying

the date of birth of the plaintiff to be 13.2.1964, onus, if any, to refute the

correctness of aforesaid certificate was on respondent-department. Plaintiff by

successfully proving certificate Ext.PW2/A discharged his onus as far as

correctness and genuineness of the certificate with regard to date of birth of

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the plaintiff. However, respondents neither in written statement nor by way of

evidence have been able to rebut aforesaid evidence. No suggestion, if any, qua the

aforesaid aspect of the matter ever came to be put to PW2 in cross-examination.

.

22. Leaving everything aside, this Court finds from the pleadings

adduced on record by the respective parties that though at initial stage,

plaintiff by way of representation Ex.PW1/B, requested the respondent board to

correct his date of birth from 13.2.1963 to 13.2.1964, but such request of him

never came to be declined on the ground of delay and laches, rather careful

perusal of order dated 31.5.2010 Ext.PW1/D sent by the respondent board in

response to representation dated 29.4.2010 Ext.PW1/B clearly suggests that

respondent board expressed its inability to carry out correction in date of birth

of the plaintiff in the matriculation certificate on the basis of Panchayat record

and while referring to Examination Regulations, Chapter-14, Rule 14.7.1 itself

advised the plaintiff to approach the court of law for the change of date of

birth, however, subsequently, in the written statement placed reliance upon

provisions contained under the Himachal Pradesh Financial Rules for denying

the claim of the plaintiff. Provisions contained in para 7.1, wherein admittedly

period of two years from the date of joining service has been provided for

making an application for correction already stands reproduced in afore paras

of the judgment, but this court is afraid that provisions contained in HP Financial

Rules would apply in the case of the plaintiff, especially when his representation

dated 29.4.2010 Ext.PW1/B came to be rejected vide communication dated

31.5.2010 (Ex.PW1/D) on the ground that respondent board is not competent to

carry out correction of date of birth in matriculation certificate, rather such

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power lies with court of law. Obviously, it would be apt to take note of the

examination Regulations Chapter 14, Rule 14.7.1., which reads as under:

"Applications regarding change in date of birth may be

.

considered on payment of prescribed fee provided the change

has been admitted in a Court of law. Ordinarily, in such Court Cases the Board may not defend the proceedings even if the

Board is made a party to such proceedings"

23. Careful perusal of aforesaid provision of law clearly reveals that

application, if any, with regard to change in date of birth could be considered

by the respondent board on payment of prescribed fee subject to the

condition that the change has been admitted in a court of law. It has been

specifically provided under the aforesaid provision of law that ordinarily, in such

cases, the Board may not defend the proceedings even if the Board is made a

party to such proceedings. Aforesaid provision, if read in its entirety, clearly

reveals that order, if any, made by the court of law with regard to change of

date of birth, would be acceptable by the respondent board and it is not

required to defend such proceedings even, if it is made party in such

proceedings.

24. Careful perusal of judgment passed by the learned District Judge

reveals that learned first appellate court below on the basis of totality of

evidence collected on record by the plaintiff though returned specific finding

that in view of the evidence, which remained un-rebutted, it is established that

the date of birth of the plaintiff in the Panchayat records is 13.2.1964, whereas in

the middle as well as matriculation certificates, his date of birth is recorded as

13.2.1963 and even in the service records, the date of birth of the plaintiff is

13.2.1963, which is contrary to the entry made in the Panchayat records.

- 19 -

However, court below despite having recorded aforesaid finding proceeded to

reject the claim of the plaintiff on the ground of delay and laches, whereas

evidence led on record by the plaintiff, if read in its entirety clearly reveals that

.

plaintiff successfully proved that he immediately after having acquired

knowledge that his original date of birth is 13.2.1964 approached the

respondent-Board for correction, who vide communication dated 31.5.2010,

advised him to approach the court of law. Leaving everything aside, if prayer

made by the plaintiff in his suit is perused, he did not seek correction of his date

of birth in service records, rather sought correction of his date of birth in the

middle and matriculation certificate issued by the respondent-Board. Learned

District judge while placing reliance upon the Rule 7.1 (d) of HP Financial Rules,

which otherwise could not have been placed reliance in the case of the

plaintiff on account of contents contained in communication dated 31.5.2010

Ext.P1/D, rejected the claim of the plaintiff on the ground of limitation. If the

relief, as has been sought by the plaintiff, is examined vis-à-vis provisions contain

in Rule 7.1 (d) of the Himachal Pradesh Financial Rules, learned counsel for the

plaintiff is right in contending that Rule 7.1 of the Himachal Pradesh Financial

Rules could not be made applicable because at no point of time, prayer, if any,

ever came to be made on behalf of the plaintiff to correct his date of birth in

the service records, rather plaintiff by way of suit while seeking declaration that

his date of birth is 13.2.1964, specifically prayed for decree of mandatory

injunction directing the defendants to rectify the date of birth of the plaintiff

from 13.2.1963 to 13.2.1964 in the middle and matriculation certificates of the

plaintiff, and to grant decree of permanent prohibitory injunction restraining the

- 20 -

defendants to issue any certificate or document showing wrong date of birth of

the plaintiff.

25. In view of the relief as prayed for by the plaintiff in the suit

.

provisions of Rule 7.1 of Himachal Pradesh Financial Rules could not have been

made applicable in the case of the plaintiff, rather courts below in the totality of

evidence led on record ought to have decided the suit on its own merits.

Learned first appellate Court below wrongly placed reliance upon judgment

rendered by this Court in State of HP v. Mor Dhawaj, 2009 (1) SLJ (HP) 167, while

dismissing the appeal filed by the plaintiff because bare perusal of the facts of

that case nowhere suggests that same are identical to the case of the plaintiff.

In the aforesaid judgment, this court held that while considering prayer for

correction of date of birth, court should keep in mind that the correction of

date of birth of a public servant may adversely affect the chances of the

promotion of the government servants and the period within which correction

can be sought, if prescribed under the statutory rules or in absence thereof

under the Administrative instructions should be followed. In the aforesaid

judgment, this Court has held that in the absence of rules/instructions,

correction may be sought within reasonable time. If the facts of the case of the

Mor Dhawaj (supra) are perused, it suggest that petitioner in that case was

appointed as JBT in the Education department of Himachal Pradesh on 2.1.1958

and in that capacity, he worked at different places. He made representation on

12.8.1992 for correction of his date of birth, which was rejected on 25.2.1993. In

1993, petitioner in that case approached the learned Erstwhile HP State

Administrative Tribunal, who vide order dated 26.6.1993 directed the State

- 21 -

Government to treat the same as representation and decide the same within a

period of four months. Since representation was rejected, respondent again

approached the learned Tribunal, who in turn allowed the original application

.

filed by the petitioner in that case and directed the correction of the date of

birth of the petitioner, however, subsequently, a coordinate Bench of this Court

in the aforesaid case while reversing the finding returned by the learned Tribunal

held that prayer for correction of date of birth could not have been entertained

by the learned Tribunal at such a belated stage. If the facts of the case of the

plaintiff in the instant case are perused, by no stretch of imagination, it can be

said that he approached the court of law for correction of date of birth at

belated stage, rather evidence as well as pleadings adduced on record by the

plaintiff, which remain un-rebutted clearly reveal that plaintiff immediately after

having discovered factum with regard to wrong entry of his date of birth

approached the department in the year, 2009, praying therein for correction of

his date of birth in 8th and 10th class certificates and such request of him was

never declined on the ground of delay and laches. Respondent-Board vide

communication dated 31.5.2010 Ext.PW1/D itself advised the plaintiff to

approach the court of law. Since no prayer, if any, ever came to be made on

behalf of the plaintiff with regard to correction of his date of birth in his service

record, both the courts below erred while placing reliance upon the Rule 7.1 (d)

of HP Financial Rules for rejecting the claim of the plaintiff, rather in the case at

hand, case of the plaintiff ought to have been considered in terms of provision

contained in Examination Regulation Rules, which clearly provides that

necessary prayer for correction of date of birth in middle and matriculation

- 22 -

certificate can be only made on the basis of declaration/order of the court of

law.

26. This Court having carefully scanned the entire evidence as well as

.

pleadings adduced on record vis-à-vis reasoning assigned by the courts below

while rejecting the suit of the plaintiff, has no hesitation to conclude that both

the courts below miserably failed to appreciate the evidence rather both the

courts below side tracked the main issue and wrongly non-suited the plaintiff on

the ground of delay and laches. Since this Court is convinced and satisfied that

both the courts below misrepresented, mis-appreciated and misconstrued the

pleadings as well as evidence adduced on record by the plaintiff, judgments

and decrees passed by the courts below are vitiated being perverse. Since

there is a complete perversity in the judgments passed by the courts below, this

Court in light of various pronouncements as have been referred herein above, is

well within its jurisdiction to set aside the concurrent finding of facts and law

recorded by the courts below. Substantial question of law is answered

accordingly.

27. Consequently, in view of the detailed discussion made herein

above as well as law relied upon, present appeal is allowed and judgments

passed by the courts below are quashed and set-aside being perverse and suit

of the plaintiff for declaration is decreed in its entirety and it is held that the date

of birth of the plaintiff is 13.2.1964 and not 13.2.1963 and as such, defendant-

Board is directed to carry out necessary corrections in the middle as well as

matriculation certification forthwith. Respondent-Board is further restrained by

way of permanent prohibitory injunction to issue any certificate or document

- 23 -

showing wrong date of birth of the plaintiff is 13.2.1963. Present appeal is

disposed of, so also pending application(s), if any.

     4th January, 2021                                   (Sandeep Sharma),




                                                                   .
                                                                Judge.





     manjit





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