Rampati Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 6643 MP

                                       1




             HIGH COURT OF MADHYA PRADESH

                      W.P.No. 21494/2021
           (Rampati Gupta Vs. State of M.P. and others)


Jabalpur, Dated : 22.10.2021


       Shri Ravendra Shukla, learned counsel for the petitioner.

       Shri Darshan Soni, learned Govt. Adv. for the respondents/State.

With the consent of learned counsel for the parties, the matter is

heard finally.

The present petition under Article 226 of the Constitution of India

has been filed seeking a direction to the respondents to correct the date

of birth of the petitioner in the service book as per the school records. It

is submitted that the petitioner was initially appointed as daily wager

employee on the post of labour on 6.1.1984 and working in the Sub

Division No, 1, Sidhi, Public Works Department. He was classified on

23.9.2017 as unskilled Labour. The date of birth of the petitioner as

recorded in the service book is 15.1.1961. The aforesaid aspect came to

the knowledge of the petitioner for the first time during the proceedings of

classification when he was classified as unskilled Labour, in pursuance to

the circular dated 7.10.1916 issued by the State Government. It is argued

that petitioner's actual date of birth is 2.1.1968, which is mentioned in the

school records. The petitioner obtained the school records, i.e. the copy of

the admission register, the certificate of the Principle of Govt. school, Govt.

Middle and Higher Secondary School, Panwar, district Sidhi, wherein the

date of birth of the petitioner 2.1.1968 was affirmed by the Principal of

the school. The petitioner has sown an affidavit to the aforesaid effect,

which is annexed with the petition. A representation is submitted by the

petitioner seeking a direction to the authorities to consider and decide

the representation regarding correction of date of birth in the service

book.

In innocuous prayer is made to direct the authorities to consider and

decide the pending representation within a stipulated time frame as the

petitioner is due to retire on 31.1.2022.

Per contra, counsel appearing for the State has vehemently opposed

the prayer and submits that the date of birth of the petitioner cannot be

corrected at the fag end of the service career. It cannot be accepted

that the date of birth recorded in the service-book was not in the

knowledge of the petitioner. The petitioner's initial appointment was in the

year 1984 and the date of birth which was provided by the petitioner

was recorded in the service book. No steps were taken by the petitioner

for almost more than 35 years to get the date date of birth corrected in

the service book. When he is at the fag end of his service career and due

to retire on 31.1.2022, so called representation was submitted by the

petitioner on 2.8.2021 before the respondents - authorities seeking

correction in the date of birth.

The law with respect to correction of date of birth is settled by the

Supreme Court in the case of Union of India Vs. Harnam Singh,

reported in (1993) 2 SCC 162, in the case of State of M.P. Vs. Premlal

Shrivas, reported in (2011) 9 SCC 664, State of Uttaranchal Vs.

Pitamber Dutt Semwal, reported in (2005) 11 SCC 477 and has

argued that it was concurrently held by the Hon'ble Supreme Court that no

such correction of date of birth can be directed at the fag end of the service

career and directing the authorities to decide the representation will be a

futile exercise. The petitioner has slept over his rights for almost 35

years, thus, he is not entitled to grant any relief in the present petition. He

has prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the record.

From the record, it is seen that the date of birth which is recorded in

the service book of the petitioner is 15.1.2961 and the same was provided

by the petitioner at the time of entering in the service, i.e. on 6.1.1984,

i.e. the date of appointment of the petitioner. The petitioner has kept

quiet for almost more than 35 years and has not taken any pain to get the

date of birth corrected. Despite of the fact that the aforesaid aspect was

very well in the knowledge of the petitioner as several benefits have been

extended to the petitioner during his service tenure and the petitioner has

never objected the incorrect date of birth entered in his service records.

The law with respect to the correction of date of birth is settled by

by the Hon'ble Supreme Court in the case of State of Uttaranchal Vs.

Pitamber Dutt Semwal, (supra) wherein the Hon'ble Supreme Court

has held as under :-

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

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

8........................................................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 sleepover their rights" (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 :

(1993) 24 ATC 92] ).

In the case of Home Department Vs. R. Kerubakaran reported

in 1994 Supp (1) SCC 155 wherein the Supreme Court has held as under

:-

"An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others

waiting for years below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth the officer concerned, continues in office, in some cases for years, within which time may officers who are below him in seniority waiting their promotion, may lose the promotion for ever ......"

In the case of Union of India Vs. Harnam Singh, (supra) the

Supreme Court has held as under :-

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 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 timelimit within which an application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book."

Recently, the Supreme Court in the case of Karnataka Rural

Development Infrastructure Development Limited Vs. T.P. Natraja

and others reported in 2021 SCC OnLine SC 767 considering all the

aforesaid judgments has held as under :-

22. Considering the aforesaid decisions of this Court the 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) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) 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.

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

From the aforesaid, it is clear that the correction of date of birth at

the fag end of service career is not permissible. Even if an employee is

having a very good case, and is having a good evidence regarding his

date of birth, the same can not be claimed as a matter of right. In such

circumstances, directing the respondents - authorities to consider and

decide the representation of the petitioner for correction of date of birth

will be a futile exercise. He has slept over his rights for almost 35 years.

Thus, no such relief can be extended to the petitioner. The petition sans

merits and is hereby rejected.

(VISHAL MISHRA) JUDGE bks

BASANT KUMAR SHRIVAS 2021.10.27 10:38:36 +05'30'