Himachal Pradesh High Court

Satya vs State Of H.P. & Ors on 19 November, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

. ( 2024:HHC:11913 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Decided on: 19.11.2024

Satya ...Petitioner

Versus

State of H.P. & Ors. ....Respondents.

........................................................................................... Coram Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?1                    Yes

For the petitioner:                       Dr. Lalit Kumar Sharma,
                                          Advocate.

For the respondents:                      Ms. Leena Guleria,                 Deputy
                                          Advocate General.

Jyotsna Rewal Dua , J

The petitioner seeks correction in her date of birth on

the basis of a decree passed by the learned Civil Court in her favour,

which has been implemented by the Himachal Pradesh Board of

School Education by correcting petitioner's date of birth in her

matriculation certificate.

2. The petitioner was appointed as Junior Engineer in the

respondent-Jal Shakti Vibhag on 25.04.2000. At that time, she

declared her date of birth as 06.01.1969, which was also her date of

birth as recorded in her matriculation certificate issued by the H.P.

Whether reporters of the local papers may be allowed to see the judgment?

. ( 2024:HHC:11913 )

Board of School Education Dharamshala. Petitioner instituted Civil

Suit No.555/2015 on 25.02.2015 for declaration against the H.P

Board of School Education/defendant to the effect that her date of

birth was 24.10.1969 and not 06.01.1969 as recorded in her

matriculation certificate issued by the Board. The defendant-Board

did not contest the civil suit. It was proceeded against ex-parte. Vide

judgment and decree dated 15.06.2015, petitioner's civil suit was

decreed, her correct date of birth was declared as 24.10.1969. The

decree was implemented by the defendant-Board and fresh

matriculation certificate was issued to the petitioner on 29.09.2015.

On that basis, the petitioner submitted representation to her employer

on 05.07.2017 for correcting her date of birth in the service record

from 06.01.1969 to 24.10.1969. The representation was rejected on

26.07.2017. Despite rejection of petitioner's representation, she again

represented to the respondents on 20.09.2022 seeking rectification in

her service record. Her representation was once again turned down

on 11.04.2023/19.05.2023.

In the above background, the petitioner has instituted

this writ petition seeking following substantive relief:-

"(i) That by way of writ of certiorari the office order dated

11/04/2023 (Annexure P9) and 19/05/2023 (Annexure P10)

passed by respondent no. 1 and 2 may kindly be set aside and

quashed.

. ( 2024:HHC:11913 )

ii. That a writ in the nature of mandamus may kindly be issued

against the respondents who may be directed to enter the correct

date of Birth of the petitioner as 24/10/1969 instead of wrong entry

of 06/01/1969 in the service book of the petitioner in terms of the

fresh matriculation certificate issued by the H.P. Board of School

Education H.P. while complying the judgment and decree dated

15/06/2015 passed by Ld. Civil Judge, Senior Division Mandi H.P.

in Civil Suit no. 555/2015 with all consequential benefits flowing

therefrom."

3. I have heard learned counsel for the petitioner and

learned Deputy Advocate General for the respondents.

3(i) The contention urged by learned counsel for the

petitioner is that the petitioner had represented to the respondents

on 30.03.2002, which was diarized bearing Diary No.3144 seeking

correction in her date of birth, therefore, there had been no delay on

the part of the petitioner. She had represented immediately after

joining the respondent-department. The case of the petitioner was

kept pending by the respondents. The respondents advised the

petitioner to get decree from the Civil Court in her favour concerning

her correct date of birth. It was for this reason, the petitioner had

instituted the civil suit, which was decreed in her favour. The

respondents are, therefore, bound to correct the date of birth entry in

petitioner's service record in terms of the decree passed by the Civil

. ( 2024:HHC:11913 )

Court more particularly when the decree has been implemented by

the defendant therein-the H.P. Board of School Education.

3(ii) Learned Deputy Advocate General submitted that

pursuant to the order passed in this writ petition on 24.05.2024, the

respondents had placed on record instructions dated 12.07.2024. In

terms of these instructions no such record of representation dated

30.03.2002 alleged to have been submitted by the petitioner was

traceable in the office of respondent No.2. The diary number

furnished by the petitioner was also not traced in the diary section of

the Registrar Jal Shakti Vibhag. Relevant portion from the letter

addressed by respondent No.2 to respondent No.1 on 11.07.2024,

which is the basis of instructions dated 12.07.2024, reads as under:-

"The Additional Chief Secretary (JS), to the Govt. of H.P. Shimla-2.

Subject:- CWP No. 6988/2023 titled as Satya (E.E.) Vs. State of H.P. & Ors.

Sir, Kindly refer to the subject cited matter. In this connection, it

is intimated that the Superintending Engineer, P&I-I Jal Shakti

Bhawan, Tutikandi Shimla-5 was asked to supply the copy of

representation and its status as diarized in his office vide diary No.

3144 dated 30.03.2002. But, the Superintending Engineer P&I-I Jal

Shakti Bhawan, Tutikandi Shimla-5 has Intimated that no record to

the aforesaid matter is traceable in his office. Further, the aforesaid

diary No. has also not been traced out in the diary section of the

Registrar (J5V).

. ( 2024:HHC:11913 )

This is for kind information and further necessary action in

the matter please.

Encls:-As above."

Learned Deputy Advocate General further submits that

in view of delay on part of the petitioner seeking to rectify her date of

birth in service record, relief cannot be allowed to the petitioner

merely on the basis of decree passed by learned Civil Court 17 years

after her joining the employment with the respondents.

4. Consideration

4(i) Petitioner's representation dated 30.03.2002 is not part

of the case record. The respondents have denied receiving this

representation. Specific instructions (extracted above) placed on

record are to the effect that neither any representation dated

30.03.2002 nor the diary number thereupon as furnished by the

petitioner is traceable in their office. There is no counter from the

petitioner to the aforesaid instructions placed on record by the

respondents.

4(ii) Petitioner has not even demonstrated as to why she

took 15 years to institute the civil suit for declaring her date of birth as

24.10.1969.

4(iii) Respondents (employer) were not impleaded as parties

in the civil suit instituted by the petitioner for declaring 24.10.1969 as

her correct date of birth. The sole defendant- impleaded by her i.e.

. ( 2024:HHC:11913 )

the H.P. Board of School Education was proceeded against ex parte.

It did not contest the civil suit. The petitioner cannot bind her

employer/respondents with the judgment and decree dated

15.06.2015, in which the respondents had not been even impleaded

as parties. In Laxmi Singh Verma Vs. H.P. Board of School

Education2, it was held that decree by the Civil Court against the

Education Board directing correction of date of birth in the

educational certificate will not entitle the employee to get his date of

birth as entered in the service record corrected on that basis.

4(iv) The first time, the petitioner represented to the

respondents seeking correction in her date of birth was on

05.07.2017 i.e. 17 years after her employment with the respondents.

Reliance placed by learned counsel for the petitioner

upon decision in State of H.P. & Anr. Vs. P.C. Sharma 3 is

misplaced. Facts of that case were different. Petitioner there had

been successful in his legal pursuit in CWP(T) No. 10716/2008 for

getting his date of birth corrected in the service record. The question

of delay & laches in the facts of that case was answered in petitoner's

favour. The decision had attained finality. Despite this, respondents

had rejected petitioner's prayer for correcting his date of birth in

service record, thereby compelling him to initiate second round of

litigation.

CWP No. 1227/2021 decided on 14.12.2021

CWP No. 1320/2016 decided on 09.12.2019

. ( 2024:HHC:11913 )

4(v) Note 6 of Fundamental Rules 56 provides that date of

retirement of a Government servant, be it 58 years or 60 years, as

the case may be, has to be determined with reference to date of birth

declared by the Government servant at the time of appointment and

accepted by the appropriate authority on production, as far as

possible, of confirmatory documentary evidence such as High School

Certificate or extracts from the Birth Register. The Note further

provides that the date of birth so declared by the Government servant

and accepted by the appropriate authority, shall not be subject to any

alteration except as specified in this note, as under: -

"Note 6-

(a) a request in this regard is made within five years of his entry into Government service;

(b) It is clearly established that a genuine bona fide mistake has occurred; and

(c) the 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 of which he first appeared at such examination or on the date on which he entered Government service."

Clause 7.1 of Chapter VII of Himachal Pradesh

Financial Rules, 1971, provides that declaration of age made by the

employee at the time of or for the purpose of entry into government

service be deemed to be conclusive unless the employee applies for

correction of his recorded age within two years from the date of his

. ( 2024:HHC:11913 )

entry into the government service. Clause 7.1(d) of Chapter VII reads

thus: -

"(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 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 gazette.

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 in 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 was a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate is 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."

. ( 2024:HHC:11913 )

In Bharat Coking Coal Limited and others Versus

Shyam Kishore Singh4, the Hon'ble Apex Court held that request

for change of date of birth in the service records at the fag end of

service after accepting the same to be correct during service, cannot

be entertained. Even if there is good evidence to establish that the

recorded date of birth is erroneous, the correction cannot be claimed

as a matter of right. Relevant paragraphs of the judgment read as

under: -

"9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble5, wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:

"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri. 6 In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal7 relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the

(2020) 3 Supreme Court Cases 411

(2010) 14 SCC 423

(2005) 11 SCC 465

(2005) 11 SCC 477

. ( 2024:HHC:11913 )

High Court ought not to have interfered with the decision after almost three decades.

* * *

19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran8 reads as under:

"7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. 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 their promotion forever. ... According to us, this is an important 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, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. ... the onus is on the applicant to

1994 Supp (1) SCC 155

. ( 2024:HHC:11913 )

prove the wrong recording of his date of birth, in his service book."

10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas9, it is held as hereunder;

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v.

                        Harnam Singh)10
                                  *               *               *

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie

(2011) 9 SCC 664

(1993) 2 SCC 162

. ( 2024:HHC:11913 )

fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."

The above principles were reiterated by the Hon'ble

Apex Court in Karnataka Rural Infrastructure Development

Limited versus T.P. Nataraja and others11, wherein after

considering its previous pronouncements on the subject, the law on

change of date of birth was summarized as under: -

"10. Considering the aforesaid decisions of this Court in law on change of date of birth can be summarized as under: -

(i) application for change of date of birth can only be as per the relevant provisions/ regulations applicable;

(ii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.

11. Therefore, applying the law laid down by this Court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of

(2021) 11 SCALE 110

. ( 2024:HHC:11913 )

declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law."

5. The above exposition of law is squarely applicable to

the facts of the instant case. Petitioner had joined the service on

25.04.2000. At the time of joining the service, she had herself

produced her matriculation certificate, on the basis of which,

06.01.1969 was entered as petitioner's date of birth in her service-

book. Therefore in view of above, merely on the basis of petitioner

representing to the respondents for the first time in the year 2017 i.e.

after 17 years of her joining seeking correction in date of birth, her

date of birth cannot be corrected. This recourse is even otherwise