Between vs Education
2022 Latest Caselaw 146 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                   ON THE 7th DAY OF JANUARY, 2022




                                                              .
                                 BEFORE





             HON'BLE MR. JUSTICE VIVEK SINGH THAKUR

                   CIVIL WRIT PETITION No. 4387 OF 2020





Between:-
     BALA RAM, S/O SH. NARU RAM,
     RESIDENT OF VILLAGE CHALAUTI,





     P.O. PANARSA, TEHSIL AUT,
     DISTRICT MANDI, H.P.                                         ....PETITIONER

     (BY SMT. ARCHNA DUTT, ADVOCATE.)

     AND

1.   STATE OF H.P. THROUGH
     SECRETARY (HEALTH) TO THE
     GOVT. OF HIMACHAL PRADESH
     SHIMLA-2.



2.   DIRECTOR OF HEALTH SERVICES,
     HIMACHAL PRADESH, SHIMA-9.




3.   MEDICAL SUPERINTENDENT,
     REGIONAL HOSPITAL, KULLU,





     DISTRICT KULLU, H.P.                                    ....RESPONDENTS

     (BY SH. AJAY VAIDYA, SENIOR ADDITIONAL





     ADVOCATE GENERAL.)

     Whether approved for Reporting? Yes.

             This petition coming on for orders this day, the Court
delivered the following:
                             JUDGMENT

Present petition has been preferred against denial of

correction of date of birth of petitioner in his service record as 10.2.1996

instead of 24.1.1964, despite the correction thereof in Middle Standard

Certificate by the Himachal Pradesh Board of School Education (herein

after referred to as the School Board) in compliance of judgment and

decree dated 23.5.2017 (Annexure -2) passed by competent Civil Court

in Civil Suit No. 73/17/2016, titled as Bala Ram Vs. H.P. Board of School

Education, Dharamshala, and inspite of issuing direction by respondent

No. 2 Director of Health Services vide communication dated 17.11.2017

.

(Annexure P-5), to respondent No. 3 Medical Superintendent, Regional

Hospital Kullu, District Kullu, H.P. to make necessary entries in service

book of the petitioner as directed by the Court.

2. In pursuance to appointment as driver on contract basis in

the Department of Health and Family Welfare, petitioner had joined as

such on 21.3.2007 and as per policy of State government, for

completion of requisite years on contract service, his services were

regularized w.e.f. 11.8.2014. At the time of joining, on the basis of

documents submitted by the petitioner, his date of birth was recorded as

24.1.1964.

3. On 23.5.2016, petitioner preferred a suit against School

Board seeking declaration that his correct date of birth 24.2.1966 be

recorded in his Middle Standard Examination Certificate, as recorded in

the Birth Certificate issued by Births and Deaths Registrar, Gram

Panchyat Nigulsari, Tehsil Aut, District Mandi, H.P. School Board did

not contest the suit and ex parte decree of declaration as prayed by the

petitioner was passed on 23.5.2017.

4. Petitioner, on 21.8.2017, had submitted an application to

Medical Superintendent, Regional Hospital, Kullu for correction of his

date of birth in his service book, stating therein that at the time of his

initial appointment on 21.7.2007, he had submitted his Middle Standard

Certificate and Birth Certificate issued by Panchayat and at that time his

date of birth was recorded as 24.1.1964 on the basis of date of birth

recorded in the Middle Standard Certificate. It was stated in the

representation that his date of birth has been corrected as 10.2.1966 by

the School Board in Middle Standard Examination Certificate and,

.

therefore, request was made to accept his corrected Middle Standard

Examination Certificate and to correct the date of birth in his service

book. The action taken by the Medical Superintendent upon this

representation has not been disclosed either by the petitioner or by

respondents. However, a communication dated 17.11.2017 has been

placed on record by petitioner as Annexure P-5, whereby Director

Health Services had directed Medical Superintendent, Regional Hospital

Kullu to make necessary entries in service book of petitioner, as directed

by the Court, under intimation to the Directorate.

5. In response to communication dated 17.11.2017

(Annexure P-5), Medical Superintendent, Regional Hospital, Kullu had

sent a communication dated 26.12.2017 to Director Health Services

expressing his inability to alter the date of birth of the petitioner in the

service book in absence of further clarification for the reason that in the

decree passed by the Court, Department was not party and decree has

been passed against the School Board and also for the reason that the

application of the petitioner for correction of date of birth has been

received after about 10 years from his initial entry in the service in the

Department. In this communication, it was stated that as per Note No. 6

appended below FR-56, request for correction of date of birth is to be

made within five years of entry into the Government service, whereas

application for correction of date of birth was filed after a gap of more

than 10 years.

6. For denial of correction of date of birth, petitioner filed

present petition in August, 2020. As stated in the reply to the petition,

.

claim of the petitioner for correction of date of birth was rejected by

Director Health Services on 26.6.2021. Copy of communication dated

26.6.2021 sent by the Director Health Services to Medical

Superintendent, Regional Hospital, Kullu has been placed on record as

Annexure R-1 with the reply, wherein it has been stated that request

regarding correction of date of birth of the petitioner has not been

received within prescribed period of two years from the date of his entry

into Government service and, therefore, it cannot be considered. It is

apparent that final decision has been taken by the Director Health

Services after receiving notice of the Court. Be that at it may. Factual

matrix remains that request of the petitioner to correct his date of birth in

the service record stands rejected by the respondents.

7. It has been contended on behalf of petitioner that

petitioner was regularized vide order dated 11.8.2014 and as a contract

employee, his service book was not being maintained before 11.8.2014

and, therefore, prescribed time for correction of date of birth is to be

counted from 11.8.2014 and as the petitioner filed a Civil Suit for

declaration against the School Board on 23.5.2016, which was decreed

on 23.5.2017, filing of application dated 21.8.2017 by the petitioner for

correction of his date of birth must be considered within reasonable

period, rather within two years after excluding time spent for adjudication

of Civil Suit and, therefore, it has been canvassed that stand of the

respondents that application for correction of date of birth was submitted

after more than 10 years of entry in service, is erroneous and

misconceived and, therefore, prayer has been made to allow the

petition, directing the respondents to correct the date of birth in the

.

service book of the petitioner. It has also been contended that once

direction was issued by Director Health Services to make necessary

entries in the service book of the petitioner in terms of decree passed by

the Court, the Medical Superintendent, Regional Hospital, Kullu had no

business to refuse to make such entries and to sent a communication

dated 26.12.2017 to the Director Health Services, as he was bound to

obey the directions passed by his superior, Head of the Department. It

has further been contended that Director Health Services, after issuing

directions dated 17.11.2017 to make necessary entries in the service

book of the petitioner, cannot take U-turn by rejecting the claim of the

petitioner, that too after filing of present petition.

8. It has been further contended that in the Himachal

Pradesh Financial Rules, 1971 Volume-1, in para 7.1 period of two

years has been prescribed for making an application for correction of

date of birth, but in Note-6 appended below FR-56, the prescribed

period is five years and, as provision beneficial to the employee is to be

applied, therefore, submission of application by the petitioner on

21.8.2017 is within the prescribed period of five years from his date of

regularization which is 11.8.2014 and, therefore, rejection of claim of the

petitioner vide communication dated 26.6.2021 is not sustainable, being

based on erroneous and misconceived facts.

9. Learned Senior Additional Advocate General has

contended that in view of provisions contained in para 7.1 of Himachal

Pradesh Financial Rules, 1971 Volume-1 and pronouncement of the

Supreme Court in case Punjab and Haryana High Court at

Chandigarh Vs. Megh Raj Garg & another, AIR 2010 SC 2295, the

.

Director Health Services has rightly rejected the claim of the petitioner

for correction of his date of birth. He has further stated that first entry of

the petitioner in the service is to be counted from his initial date of

appointment on contract and since then he is an employee of the

Department and, therefore, according to him, prescribed time for filing

the application for correction of date of birth shall recon from his initial

date of appointment i.e. 21.7.2007 and, therefore, prayer for dismissing

the petition has been made.

10. Note 1 (d) (1) under Para 7.1 of Himachal Pradesh

Financial Rules, 1971 Volume-1, relevant for adjudication of present

case, reads as under:-

"(d) (1) in regard to 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 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 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 services 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."

11. No doubt Note-6 appended under FR 56 provides that

alteration of date of birth of a Government servant can be made, with the

sanction of a Ministry or Department of the Central Government, or the

Comptroller and Auditor-General in regard to persons serving in the

Indian Audit and Accounts Department, or an Administrator of a Union

.

Territory under which the Government servant is serving, if a request in

this regard is made within five years of his entry into Government

service by clearly establishing that a genuine bona fide mistake has

occurred and date of birth so altered would not make him ineligible to

appear in any School or University or Union Public Service Commission

examination in which he had appeared, or for entry into Government

service on the date on which he first appearing in such examination or

on the date on which he entered Government service. But FR-56

relates to the employees of Central Government, Indian Audit and

Accounts Department and Union Territory. In absence of any specific

provision of the State, it would have been applicable to the employees of

State Government. However, for specific provision contained in

Himachal Pradesh Financial Rules, 1971, the provisions of Himachal

Pradesh Financial Rules shall prevail with respect to the employees of

the State.

12. The Supreme Court in Megh Raj Garg's case, after

applying ratio of law laid down by it in its earlier pronouncements in

State of Assam Vs. Daksha Prasad Deka, 1971 SC 173; Jiwaan Dass

Vs. State of Haryana and others, 1989 (2) ILR Punjab 110; Secretary

and Commissioner Home Department and others Vs. R.

Kirubakaran, AIR 1993 SC 2647; Union of India Vs. Harnam Singh,

AIR 1993 SC 1367 and Union of India Vs. C. Rama Swamy, AIR 1997

SC 2055, has held that the suit filed by the plaintiff/Judicial Magistrate of

Punjab Judiciary for correction of date of birth in records of his service

book after 12 years of his joining service, was clearly misconceived and

resultantly, decree passed by the trial Court, affirmed by the District

.

Judge and High court, directing the High court to carry out correction in

the date of birth record in his service book, has been set aside. In para

12 of this judgment, the Supreme Court has referred observations made

in Harnam Singh's case, (AIR 1993 SC 2647). Relevant portion

whereof reads as under:-

".....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 sleep over their rights and allow the period of limitation to expire......"

13. In C. Rama Swamy's case, (AIR 1997 SC 2055) the

Supreme Court in para 25 has observed as under:-

".....In matters relating to appointment to service various factors are taken into consideration before making a selection or an 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 than that which is later sought to be incorporated. But it will not 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 responsible office. In fact, where maturity is a relevant factor to assess suitability, an 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."

14. In Bharat Coking Coal Limited and others Vs. Shyam

Kishore Singh, AIR 2020 SC 940, the Supreme Court after taking into

consideration its earlier pronouncements in Home Department and

others Vs. R. Kirubakaran, AIR 1993 SC 2647; Union of India Vs.

Harnam Singh, AIR 1993 SC 1367; State of Uttaranchal Vs. Pitamber

Dutt Semwal, (2005) 11 SCC 477; U.P. Madhyamik Shiksha Parishad

Vs. Raj Kumar Agnihotri, AIR 2005 SC 2491; Kamta Pandey Vs. M/S

BCCI and others 2008 (2) AIR Jharkhand R 94; State of Maharashtra

and another Vs. Gorakhnath Sitaram Kamble and others, (2010) 14

SCC 423; State of M.P. Vs. Premlal Shrivas, AIR 2011 SC 3418;

Factory Manager Kirloskar Brothers Limited Vs. Laxaman AIR

OnLine 2019 SC 978 and M/S Eastern Coalfields Limited and others

Vs. Ram Samugh Yadav and others, AIR OnLine 2019 SC 997 and

after distinguishing the decision in Bharat Coking Coal Limited and

others Vs. Chhota Birsa Urnaw (AIR 2014 SC 1975), has re-iterated the

ratio as propounded in its earlier pronouncements, referred supra.

15. Petitioner was appointed on contract basis on 21.7.2007

and his services were regularized on completion of requisite years on

.

contract service. Therefore, he was not re-appointed or appointed

afresh on 11.8.2014, but by giving benefit of his contract service, his

services were regularized and as such he did not enter in Government

service as a fresh candidate on 11.8.2014, but his initial entry has been

considered as 21.7.2007 and for counting of that service his contract

service has culminated into regularization of his services. Therefore, his

service after regularization is to be counted in continuation of contract

service and thus his initial entry in Government service is to be taken as

21.7.2007.

16. It is also apt to record that this High Court in various

judgments including judgment in Jagdish Chand Vs. State of

Himachal Pradesh and others, Latest HLJ 2020 (HP) (1) 310, has

held that contract service is to be counted towards seniority, grant of

increments and penionary benefits etc. by holding that regularization of

contract employees is in continuation from the date of their initial

appointment as contract employee.

17. Rule 17 of CCS (Pension) Rules 1972 also provides for

counting of service on contract for pensionary benefits of a person

initially engaged by Government on contract for a specified period,

subsequently appointed to the same or another post in a substantive

capacity in a pensionable establishment without interruption of duty,

subject to option provided under this Rule. Therefore, regularization

after appointment on contract basis is not to be considered as initial date

of entry into service, but initial date of entry in service of a person shall

be his first date of appointment on contract basis.

.

18. In view of above, initial date of appointment of the

petitioner is to be taken as 21.7.2007. It is also admitted fact, as stated

by the petitioner in his representation dated 21.8.2017 (Annexure P-4),

that his documents were taken on record of the Department which were

submitted by him at the time of first appointment on contract basis and

on the basis of those documents his date of birth was recorded as

24.1.1964. It is not case of the petitioner that incorrect recording of date

of birth came in his knowledge at a later stage, as it is case of the

petitioner that his date of birth was correctly recorded in Births and

Death Register maintained by the Panchayat and according to him he

had also submitted certificate issued by the Panchayat at the time of his

appointment on contract but his date of birth was recorded on the basis

of Middle Standard Certificate. Petitioner has also placed on record a

copy of Birth Certificate issued by Births and Death Registrar of Gram

Panchayat on 6.8.2011 as Annexure P-1. The reasons for not claiming

his date of birth on the basis of this certificate at earlier point of time or

at the time of initial appointment on contract basis are best known to the

petitioner. He is completely silent in this regard. In the copy of Birth

Certificate (Annexure P-1), though registration number with respect to

registering date of birth has been mentioned as 156, but the column of

date of registration has not only been filled, but a dash in place of date

has been put, which again creates doubt about the correctness of this

certificate and probably for that reason the petitioner did not object his

recording of date of birth at initial stage, at the time of his appointment

on contract basis, on the basis of Middle Standard Certificate.

.

19. From the initial date of appointment, petitioner has filed

application for correction of his date of birth entry after 10 years and Writ

Petition has been filed about lapse of 13 years. Therefore, even if

Note-6 appended under FR-56 is considered to be applicable in case of

petitioner, then also his claim for correction of date of birth entry is

belated one, as five years had completed on 21.7.2012, whereas two

years had completed in the year 2009.

20. Copy of Birth Certificate (annexure P-1) indicates that it

was issued by the concerned Registrar on 6.8.2011. The reason for not

filing the suit for declaration of correction of date of birth in Middle

Standard Examination Certificate since 2011 to 2016 has also not seen

the light of the day.

21. It is also settled, as held by Division Bench of this Court in

CWP No. 1227 of 2021, Laxmi Singh Verma Vs. H.P. Board of School

Education, decided on 14.12.2021, that passing a decree by the Civil

Court against the Education Board, directing correction of date of birth in

certificate issued by the School Board, does not entitle the person for

correction of entries of date of birth in his service record maintained by

the Department. Therefore, in present case also decree dated

23.5.2017 passed against School Board is of no help to the petitioner

and it was wrongly recorded by the Director Health Services that Court

had directed for making necessary entries in the service book of the

petitioner. It has been admitted in the reply by the Director Health

Services that communication dated 17.11.2017 was issued from the

Directorate without going into the details of facts and merits in the light

of relevant service rules. The Government, competent authority and

.

concerned Officers are always having a right to rectify their mistake on

noticing it and in present case also mistake has been admitted by the

Director Health Services in the reply with respect to issuance of

communication dated 17.11.2017. Otherwise also this communication

does not create any indefeasible right in favour of petitioner to alter his

date of birth as prayed by him. No doubt in appropriate genuine case,

concerned authority is always competent to correct the date of birth in

service record in accordance with power conferred under law/Rules.

22. For the aforesaid discussion, I am of the considered view

that petition deserves to be dismissed being devoid of merits and

dismissed accordingly, along with application(s) if, any.

                                             (Vivek Singh Thakur),
 th
7 January, 2022                                     Judge.
      (Keshav)