Madhya Pradesh High Court

Kapur Singh vs The State Of Madhya Pradesh on 12 April, 2023

Author: Gurpal Singh Ahluwalia

                              1



 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                 ON THE 12th OF APRIL, 2023
               SECOND APPEAL No. 171 of 2017

BETWEEN:-

KAPUR SINGH S/O GOVIND PRASAD SINGH, AGED
ABOUT 57 YEARS, OCCUPATION: CHIEF FOREST
CONSERVATOR LOK VANIYAKI RESEARCH AND
EXTENSION, VAN BHAWAN, TULSI NAGAR BHOPAL
(MADHYA PRADESH)



                                                       .....APPELLANT
(SHRI PUSHPENDRA DUBEY - ADVOCATE)

1.    THE STATE OF MADHYA PRADESH THROUGH
      CHIEF   SECRETARY  STATE   OF   M.P.
      MANTRALAYA, VALLABH BHAWAN BHOPAL
      (MADHYA PRADESH)

2.    STATE  OF   MP   THROUGH  SECRETARY
      MADHYAMIK   SHIKSHA  MANDAL  BHOPAL
      (MADHYA PRADESH)

3.    HEAD    MASTER    GOVERNMENT    GIRLS
      SECONDARY   SCHOOL   KAJIPURA BHOPAL
      FATEHGARH NIRMAL MEERA SCHOOL CAMPUS
      BHO (MADHYA PRADESH)

4.    HEAD MASTER OBEDIYA HIGH SCHOOL ROYAL
      MARKET (MADHYA PRADESH)

                                                    .....RESPONDENTS
 (MS. SHANTI TIWARI - PANEL LAWYER FOR RESPONDENTS NOS.1 &
2/STATE)



       This appeal coming on for hearing this day, the court passed the

following:
                                 2


                              JUDGMENT

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 18.11.2016 passed by Fifth Additional District Judge, Bhopal in Civil Appeal No.100/2015 arising out of judgment and decree dated 28.02.2015 passed by Fifth Civil Judge Class-2, Bhopal in Civil Suit No.433-A/2013.

2. The facts necessary for disposal of the present appeal in short are that the plaintiff filed a suit for declaration and permanent injunction on the ground that the date of birth of the plaintiff is 23.01.1955 and his date of birth was rightly mentioned in the transfer certificate issued by Headmaster, Government Girls Middle School Kajpura Bhopal Fetehgarh Nirmal Meera School Campus, Bhopal. At the time of his admission in Obedia High School Bhopal Royal Market, Bhopal, his date of birth was wrongly mentioned as 26.07.1953. As a result, this wrong date of birth continued in all his subsequent documents. Accordingly, when the plaintiff filed an application on 26.06.2004 for issuance of transfer certificate, then the respondent no.3 issued a certificate showing that date of birth of the plaintiff as 23.01.1955 and accordingly, the plaintiff filed an application on 29.05.2007 for correction of his date of birth in the subsequent records. The application filed by the plaintiff was dismissed on the ground that it is barred by limitation. Accordingly, the plaintiff filed a writ petition before the High Court which was registered as W.P.No.11504/2008 and was decided by order dated 15.10.2013 against which the plaintiff preferred W.A. No.111/2013 which was withdrawn by order dated 25.03.2013 with liberty to file a civil suit. Thus, it was claimed that the cause of action arose for the first time on 26.02.2007 when the application filed by the

plaintiff for correction of his date of birth in the subsequent records was rejected as barred by time. Accordingly, the suit was filed for a declaration that his date of birth be treated as 23.01.1955 and the permanent injunction was sought that the respondent should consider his date of birth as 23.01.1955 and the service period should be calculated accordingly.

3. The defendants Nos.1, 3 and 4 denied that the date of birth of the plaintiff is 23.01.1955. Defendant No.3 denied that the date of birth mentioned in the transfer certificate is correct. It was pleaded by defendant no.3 that in fact the transfer certificate was issued for the first time on 26.06.2004 and the plaintiff has done overwriting on his date of birth. Thus, it was denied that the correct date of birth of the plaintiff is 23.01.1955. The plaintiff had taken admission in the school/defendant No.4 and at the time of his admission his date of birth was mentioned as 26.07.1953 which cannot be doubted. Accordingly, it was prayed that the overwriting was done by the plaintiff and suit has been filed on the incorrect facts.

4. Defendant no.2 claimed that the correct date of birth of the plaintiff is 26.07.1953. Defendant no.2 denied that the correct date of birth of the plaintiff is 23.01.1955. It was also denied that at the time of admission of the plaintiff in the school/defendant no.4 his date of birth was wrongly mentioned as 26.07.1953.

5. The trial Court after framing issues and recording evidence dismissed the suit by holding that the plaintiff has failed to prove that his correct date of birth was 23.01.1955.

6. Being aggrieved by the judgment and decree passed by the trial Court, the plaintiff preferred an appeal which too has been dismissed by the First Appellate Court.

7. Challenging the judgments and decrees passed by the Courts below, it is submitted by the counsel for the appellant that the Courts below have failed to see that his correct date of birth was 23.01.1955 and at the time of his admission in Obedia High School/defendant No.4 his incorrect date of birth was mentioned as 26.07.1953. Accordingly, he proposed the following substantial questions of law:

"1. Whether, the suit filed by the plaintiffs/appellants is barred by period of limitation?

2. Whether the administrative authority have right to issue the birth certificate when the birth registration act empower the Judicial Magistrate First Class to adjudicate the issue regarding birth of any person and then the authority have exceeded jurisdiction and believing the same by the both the court below and finding given is against the law. Hence perverse?

3. Whether, learned both the courts below have erred in not considering that, after issuance of document vide Ex.P/3 the appellant/plaintiff firstly made applications to the concerning authorities and thereafter pursued the remedy of writ jurisdiction bonafide and in good faith?

4. Whether, plaintiff can be held responsible for wrong entry in the school record made by the school authority?

5. Whether the learned both the courts below have erred in not considering that, entry made in exhibit P/3 is nothing but a manipulation done by

the school authority and the entry made without any basis?

6. Whether, the findings arrived in by the courts below is perverse?"

8. The transfer certificate, Ex.P/1 mentions that the appellant had attended the Government Girls Middle School Kajipura, Bhopal/defendant no.3 from 27.07.1960 to 09.07.1963 and on 26.06.2004 has left the school. Thus, it is clear that the transfer certificate, Ex.P/1 is suspicious. Furthermore, this certificate was obtained by the plaintiff on 26.06.2004 whereas he had already left the school on 09.07.1963. The plaintiff has not filed the copy of the transfer certificate which was issued by defendant no.3 in the year 1963. Furthermore, in all the school records the date of birth of the plaintiff has been mentioned as 26.07.1953. Thus, except the transfer certificate which is alleged to have been issued by defendant no.3 on 26.06.2004, in all the documents, the date of birth of the plaintiff has been mentioned as 26.07.1953. Thus, it is clear that the plaintiff was working in the Forest Department and by seeking declaration of his date of birth, he was intending to take the benefit of the date of birth as claimed by him. Even otherwise it is well established principle of law that approach by the employee at the fag end of his service for correction of date of birth is not permissible.

9. This Court by order dated 29.07.2022 passed in W.P. No.13163/2022 has held as under:

"5.The Supreme Court in the case of State of Maharashtra and another Vs. Gorakhnath Sitaram Kamble and others reported in (2010) 14 SCC 423 has held as under:-

"12. Apart from the notification and the said instruction this Court in a series of cases has categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of his service career after a lapse of twenty- eight years.

13. In Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] this Court was confronted with almost similar facts. The Court laid down as under: (SCC pp. 172- 73, para 15) "15. In the instant case, the date of birth recorded at the time of entry of the respondent into service as 20-5-1934 had continued to exist, unchallenged between 1956 and September 1991, for almost three and a half decades. The respondent had the occasion to see his service book on numerous occasions. He signed the service book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is nothing on the record to show that he had no occasion to see the same. He remained silent and did not seek the alteration of the date of birth till September 1991, just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after 1979, the earlier delay would not have non-suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of Note 5 to FR 56 in 1979 either. His inaction for all this period of about thirty-five years from the date of joining service, therefore

precludes him from showing that the entry of his date of birth in service record was not correct."

14. In State of T.N. v. T.V. Venugopalan [(1994) 6 SCC 302 : 1994 SCC (L&S) 1385 : (1994) 28 ATC 294] this Court was clearly of the opinion that the government servant should not be permitted to correct the date of birth at the fag end of his service career. The Court, in very strong terms, observed as under: (SCC p. 307, para 7) "7. ... The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resortto the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground."

15. In Home Deptt. v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] the Court again reiterated the legal

position that the courts have to be extremely careful when application for alteration of the date of birth is filed on the eve of superannuation or nearabout that time. The Court observed as under: (SCC p. 160, para 9) "9. ... As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier."

16.xxxxx

17. In another judgment in 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 of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

18. Two decades ago this Court in Govt. of A.P. v. M. Hayagreev Sarma [(1990) 2 SCC 682 : 1990 SCC (L&S) 542 : (1990) 13 ATC 713] has held that subsequent claim for alteration after commencement of the Rules even on the basis of extracts of entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886, was not open. Reliance was also placed on State of U.P. v. Gulaichi [(2003) 6 SCC 483 : 2003 SCC (L&S) 908] , State of T.N. v. T.V. Venugopalan [(1994) 6 SCC 302 : 1994 SCC (L&S) 1385 : (1994) 28 ATC 294] , Bhadrak (R&B) Division v. Rangadhar Mallik [1993 Supp (1) SCC 763 : 1993 SCC (L&S) 276 : (1993) 23 ATC 807] , Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] and Home Deptt. v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC

828] .

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 [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] 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 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." In view of the consistent legal position, the impugned judgment cannot be sustained and even on a plain reading of the notification and the instructions set out in the preceding paragraphs leads to the conclusion that no application for alteration of the date of birth after five years should have been entertained."

6. The Supreme Court in the case of Factory Manager, Kirloskar Bros. Ltd. v. Laxman, reported in (2020) 3 SCC 419 has held as under :

"4. The affidavit filed by the employee indicated that he was well aware that his date of birth had not been corrected by the employer on the basis of representation that was allegedly filed in the year 2003. Thus, it was not open to him to have waited for ten years i.e. till his date of retirement and to file a representation again and to approach the Labour Court. He slept over his right and it is also doubtful whether he had submitted representation. Even if he has submitted his representation, he could not have waited for ten years for seeking correction in the date of birth after his retirement. A perusal of the record also indicated that once the respondent himself had declared his date of birth as 1-1-1956. There is no document in service book indicating that he has ever declared his date of birth as 1-12-1956."

7. Rule 84 of M.P. Financial Code reads as under :

84- 'kklu ds v/khu fdlh lsok vFkok in ij izR;sd uofu;qDr O;fDr dks HkrhZ ds le; viuh tUe frfFk dh tgka rd gks] ,sls vfHkys[kksa ds lkFk tks ml frfFk dh iqf"V djrs gksa tSls esVªhdqys'ku lfVZfQdsV] E;qfufliy tUe frfFk lfVZQdsV] vkfn ds lkFk fdzf'Pk;u ,jk esa] ?kks"k.kk djuk pkfg,A ;fn okLrfod tUe frfFk Kkr u gks rks yxHkx D;k frfFk gS ;g crk;k tkuk pkfg,A lsok&fooj.k] lsok iqfLrdk vFkok vU; vfHkys[k tks

'kkldh; lsod ds laca/k esa j[ks tk;sa muesa okLrfod tUe frfFk vFkok 85 ds varxZr fuf'pr dh xbZ frfFk vafdr dh tkuk pkfg,A bl rjg ,d ckj vafdr dh xbZ tUe frfFk] vfUre :Ik ls fu;r frfFk le>h tkosxh vkSj dsoy fyfidh; =qfV ds ekeyksa dks NksM+dj ,slh ?kks"k.kk esa fdlh Hkh iz;kstu ds fy;s rnqijkUr dksbZ la'kks/ku ekU; ugha fd;k tkosxkA

8. The Supreme Court in the case of State of M.P. and others Vs. Premlal Shrivas reported in (2011) 9 SCC 664 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 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.

       a.    xxxxx
       b.    It is manifest from a bare reading of

Rule 84 of the M.P. Financial Code that the date of birth recorded inthe service book at the time of entry into service is conclusive and binding on the government servant. It is clear that the said Rule has been made in order to limit the scope of correction of date of birth in the service record. However, an exception has been carved out in the Rule, permitting

the public servant to request later for correcting his age provided that incorrect recording of age is on account of a clerical error or mistake. This is a salutary rule, which was, perhaps, inserted with a view to safeguard the interest of employees so that they do not suffer because of the mistakes committed by the official staff. Obviously, only that clerical error or mistake would fall within the ambit of the said Rule which is caused due to the negligence or want of proper care on the part of some person other than the employee seeking correction. Onus is on the employee concerned to prove such negligence."

10. Thus, it is clear that not only the plaintiff has failed to prove that his correct date of birth is 23.01.1955 but in the light of the judgment pronounced by the Supreme Court as well as F.R. 84 it is not permissible to assail the date of birth at the fag end of the service. Furthermore, as per F.R. 84 the date of birth mentioned in the service book shall be final and only the clerical mistake can be corrected.

11. Accordingly, this Court is of the considered opinion that no case is made out warranting interference as no substantial question of law arises in the present case.

12. Ex consequenti, the judgment and decree dated 18.11.2016 passed by Fifth Additional District Judge, Bhopal in Civil Appeal No.100/2015 and the judgment and decree dated 28.02.2015 passed by Fifth Civil Judge Class-2, Bhopal in Civil Suit No.433-A/2013 are hereby affirmed.