Poonamchand Likhar vs The State Of Madhya Pradesh
2021 Latest Caselaw 6882 MP

                                                  Writ Petition No.16449/2021


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 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
            (S.B.: HON'BLE MR. JUSTICE VIVEK RUSIA)
                     Writ Petition No.16449/2021
      Poonamchand Likhar,
      S/o Late Shri Govind Likhar,
      Aged - 51 Years, Occupation : Peon in
      Collector Office,Land Record, Indore Branch,
      R/o - 2/10, Bakshi Bagh, Indore (M.P.)              - Petitioner

                         Versus

      (1) State of Madhya Pradesh,
          Through Secretary to the Government of
          Madhya Pradesh, Department of Revenue,
          Vallabh Bhawan, Mantralaya,
          Bhopal - 462004 (M.P.)

      (2) The Commissioner of
          Land Records and Settlement,
          Government of Madhya Pradesh,
          Moti Mahal, Gawlior (M.P.)

      (3) The Collector (Land Records),
          District Indore, Collectorate Campus,
          Moti Tabela, Indore (M.P.)                      - Respondents

_______________________________________________________________
      Shri L. C. Patne, learned counsel for the petitioner.
      Shri Ranjeet Sen, learned Government Advocate for the
      respondent / State.
________________________________________________________
                               ORDER

(27/10/2021)

With the consent of parties, heard finally.

The petitioner has filed the present petition being aggrieved by the order dated 18/08/2021 issued by respondent No.3, whereby he is being retired with effect from 01/11/2021 on the basis of his Date of Birth 01/11/1959 recorded in his Service Book.

The facts of the case are as under:-

The petitioner was initially appointed as a daily wager in a contingency establishment before 1988. Thereafter vide an order Writ Petition No.16449/2021

dated 15/04/1997 he appointed / regularized on the post of Peon / Chainman in the regular pay scale of Rs.750-945/-. He was posted in the Land Diversion Branch of Collectorate, Indore where he joined on 15/04/1997. Accordingly to the petitioner at the time of the above appointment his Service Book was duly prepared in the Land Diversion Branch of Collectorate, Indore in which his date of birth 01/11/1969 was recorded on the basis of his 5 th Class mark sheet. The aforesaid Service Book was prepared in original and contains his signature and thump impression and same was duly verified by the competent authority.

According to the petitioner, he has submitted an application for withdrawal of part amount from his GPF Account on 05/10/2013, in which he mentioned his date of birth 01/11/1969. Vide letter dated 16/01/2015, respondent No.2 called upon the petitioner to submit marksheet of 5th / 8th or School Leaving Certificate for recording correct date of birth in the Service Book. He submitted his Class-5 th marksheet / School Leaving Certificate. Since he was not having original Service Book, he submitted an application under the Right to Information Act, 2005 on 07/08/2020 seeking a copy of the Service Book and the copy of the marksheet but the same were denied to him. Vide order dated 07/01/2021, Public Information Officer has directed the department for supply of the service record of the petitioner as well as marksheet.

According to the petitioner, the respondents have prepared a Duplicate Service Book in his incorrect date of birth 01/11/1959 has been recorded. Since he has disputed the date of birth, therefore, vide order dated 14/12/2020 he was called upon to appear before the District Medical Board for verification of his age by taking Bone Test. The petitioner appeared before the Board and vide report dated 02/01/2021 the Radiologist has opined that he is in the age range of 55-60 years. Vide letter dated 12/02/2021, the In-charge Officer of the Land Record directed the petitioner to put a signature and thumb and finger impression in the Service Book, which is mandatory before his Writ Petition No.16449/2021

retirement on the basis of his Date of Birth dated 01/11/1959. The petitioner has refused to be a part of such an illegal act and did not sign the duplicate Service Book.

According to the petitioner photocopy of the Service Book supplied to him contains the manipulated entry of his date of birth 01/11/1959 instead of 01/11/1969. At the time of appointment, he passed 5th Class but his educational qualification is also wrongly mentioned as Higher Secondary passed. He submitted a High School examination marksheet (Failed) in the month of August, 2003 only in the year 2011 and now the respondents are illegally retiring him on 01/11/2021 by calculating his age of superannuation from 01/11/1959 i.e. 10 years before his actual date of superannuation.

Shri Patne, learned counsel for the petitioner submits that the respondents have failed to keep Service Book of the petitioner in safe custody and thereafter, illegally prepared a duplicate Service Book by making the wrong entry of his date of birth. The Marksheet, School Leaving Certificate, Birth Registration Certificate, Aadhar Card and PAN Card reflect his date of birth 01/11/1969, even the Medical Board has found his age in the age range of 55-60 years, therefore, the respondents be restrained from retiring the petitioner with effect from 01/11/2021 and continue till he attains the age of 62 years.

It is further submitted that under M. P. Financial Code-87, duty has been cast upon the Head of the Office to make available Service Book for inspection to employees in the month of April of every year. The circular dated 10/12/1991 was issued by the State Government. The date of birth recorded for the first time after entering into the service is required to be kept in the safe custody of the Head of the Department / Head of the Office in accordance with the circular dated 27/09/2001. The competent authority was required to certify the date of birth entered into the Service Book of a government employee by putting his signature. Hence, in view of the above, prays for quashing of the order dated 18/08/2021 (Annex.-P/16) and restoration of his Writ Petition No.16449/2021

date of birth dated 01/11/1969 in the Service Book.

Since the petitioner is going to retire with effect from 01/11/2021, therefore, vide order dated 26/10/2021 this Court has directed respondents to produce the original service record of the petitioner to verify his actual date of appointment and entry of date of birth.

In compliance with the aforesaid order, the learned Government Advocate has produced the Service Book of the petitioner which runs on pages No.01 to 60. Shri Patne submits that this is the same Service Book, photocopy of which has been supplied to the petitioner, but this is not an original Service Book prepared at the time of entering into the service. This is the duplicate Service Book, which does not bear the signature / thump impression of the petitioner as well as authentication by the appointing authority. The original Service Book has been misplaced by the respondents.

It is correct that the Service Book nowhere contain the signature of the petitioner as well as the Head of the Department but in running pages, there are entries about Pay Fixation, Revision, Earned Leave etc. w.e.f. 15/04/1997 till this date. All the entries were countersigned by the different Deputy Collectors posted from time to time. Therefore, it cannot be said that it is a duplicate Service Book prepared after misplacing the original Service Book. If this is a duplicate service book then the signature of competent authorities posted from time to time since 1997 would not have been in it. At page No.56 there is a printed form No.9-B in which the date of birth is mentioned as 01/11/1959 and the date of commencement of service is 15/04/1997. The quality of the paper and the condition of the Service Book also reveals that it is an old Service Book. Hence the contention of the petitioner is unfounded that the service book produced by the respondents is a duplicate service book.

Admittedly, the petitioner has approached this Court at the fag end of his service. The Supreme Court of India in State of Gujarat Writ Petition No.16449/2021

Vs. Vali Mohd. Dosabhai Sindhi, (2006) 6 SCC 537 has held as under on the point of delay in seeking correction of date of birth:-

"12. An application for correction of the date of birth should not be dealt with by the courts, 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 many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant to prove about the wrong recording of his date of birth in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he Writ Petition No.16449/2021

fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior."

The Hon'ble Apex court in Bharat Coking Coal Ltd. v. Shyam

Kishore Singh, (2020) 3 SCC 411 has held 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 State of Maharashtra v. Gorakhnath Sitaram Kamble [State of Maharashtra v. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 : (2011) 2 SCC (L&S) 582] wherein a series of the earlier decisions of this Court were taken note and was held as hereunder : (SCC pp. 428-29, paras 16-17 & 19) "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 [U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 : 2006 SCC (L&S) 96] . 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 Semwal [State of Uttaranchal v. Pitamber Dutt Semwal, (2005) 11 SCC 477 : 2006 SCC (L&S) 106] 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 [Pitamber Dutt Semwal v. State of U.P., 1999 SCC OnLine All 1610 : 2000 All LJ 2341] of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

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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. Kirubakaran [Home Deptt. v. R.

Kirubakaran, 1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449] reads as under : (SCC pp. 158-59, para 7) '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 Writ Petition No.16449/2021

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 promotions 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."

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. v. Premlal Shrivas [State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 : (2011) 2 SCC (L&S) 574] it is held as hereunder : (SCC pp. 667 & 669, paras 8 & 12) "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 Writ Petition No.16449/2021

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 [Union of India v. Harnam Singh, (1993) 2 SCC 162 : 1993 SCC (L&S) 375] ).

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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 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."

11. The learned Additional Solicitor General has also relied upon the decision of this Court in Kirloskar Bros. Ltd. v. Laxman [Kirloskar Bros. Ltd. v. Laxman, (2020) 3 SCC 419] dated 25-4-2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in Eastern Coalfields Ltd. v. Ram Samugh Yadav [Eastern Coalfields Ltd. v. Ram Samugh Yadav, (2020) 3 SCC 421] dated 27-5-2019 wherein this Court has held as hereunder : (SCC p. 422, paras 6-7) "6. Nothing is on record that in the year 1987 when the opportunity was given to Respondent 1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent 1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge [Ram Samujh Jadav v. Coal India Ltd., WP No. 215 of 2006, order dated 28-8-2007 (Cal)] as well as the employer was justified in refusing to accept such an issue.

7. The Division Bench of the High Court [Ram Samujh Yadav v. Coal India Ltd. APO No. 334 of 2009, order dated 6-10-2010 (Cal)] has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent 1 in the service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier."

Writ Petition No.16449/2021

In view above even if the petitioner is having some authentic documents pertaining to date of birth but he cannot claim correction of date of birth at the fag end of service as a matter of right.

The respondents have produced a compilation of a bunch of original documents pertaining to the correspondence, Leave Application, Pay Fixation and Gradation List, various communication in respect of production of the document, marksheet, etc. The petitioner at the relevant point of time did not approach the Court seeking correction of date of birth right from the year 2012. The Government has enhanced the age of superannuation from 60 to 62 years, otherwise, the petitioner would have retired in the year 2019 after attaining the age of 60 years. Whether the entry recorded in the mark sheet is a correct date of birth is a matter of evidence, which cannot be decided in a writ petition.

It is not a case where he was not aware of the date of birth recorded in the Service Book. The petitioner has suppressed the fact that there are correspondences made in the year 2012 in respect of his date of birth. The petitioner submitted a representation on 17/02/2011 for taking the mark sheet and other certificates on record. Vide letter dated 03/06/2004, the Superintendent has directed the petitioner to produce his Higher Secondary Certificate as no marksheet was available in the Service Book. It means that the entry of his qualification about Higher Secondary passed is mentioned right from inception. Vide letter dated 16/01/2015, the petitioner was called upon to submit Class-5th / 8th marksheet i.e. passed prior to entering into the services.

As per his date of birth 01/11/1959, he was 38 years of age in 1997 and as per his claim of date of birth 01/11/1969 he ought to be aged about 28 years at that time, whereas in Service Book his wife's age is recorded as 30 years. The respondents have also produced an original copy of the statement and declaration given by the petitioner Writ Petition No.16449/2021

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at the time of appointment in which his age is mentioned as 37 years, which is made 31 years by rubbing.

The petitioner was appointed as Chainman vide order dated 15/04/1997 as he was working as a Chainman in Nazul Branch prior to 31/12/1988. If he was working before 1988, then he was below 18 years according to his date of birth 01/11/1969. All these are disputed questions of facts that cannot be decided in the writ petition filed under art 226 of the Constitution of India. The bone test does not give the correct age and date of birth .

Hence, no case for interference is made out in the matter. The respondents are not illegally retiring the petitioner on the basis of date of birth recorded in the Service Book i.e. 1.11.1959. The allegation of the petitioner that the original Service Book has been misplaced and the respondents have prepared the duplicate Service Book with the wrong entry of his date of birth is unfounded. Accordingly, the writ petition is sans merit and is hereby dismissed.

Certified copy as per rules.

(VIVEK RUSIA) JUDGE Tej

Digitally signed by TEJPRAKASH VYAS Date: 2021.10.29 16:11:34 -07'00'