Madhya Pradesh High Court
Mahendra Chanda vs The State Of Madhya Pradesh on 23 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 23rd OF FEBRUARY, 2023
WRIT PETITION No. 5913 of 2015
BETWEEN:-
MAHENDRA CHANDA S/O SHRI RAMESH CHANDA, AGED
ABOUT 48 YEARS, E-1/6, BHANSALI NAGAR, POST
PARADSINGA TEH. SAUSAR DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SAMAGRA SHRIVASTAVA - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY DEPARTMENT OF EDUCATION, VALLABH
BHAWAN (MADHYA PRADESH)
2. SECRETARY BOARD OF SECONDARY EDUCATION
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI JITENDRA SHRIVASTAVA - PANEL LAWYER FOR RESPONDENT NO.1-
STATE)
(SHRI AKASHANSH SHRIVASTAVA - ADVOCATE FOR RESPONDENT NO.2.)
..........................................................................................................
This petition coming on for admission this day, the court passed the following:
ORDER
This petition is filed challenging order dated 04.10.2014 contained in
Annexure P-1 passed by the Madhya Pradesh Board of Secondary Education,
Bhopal refusing to correct date of birth of the petitioner on the ground that
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
application was made after prescribed period of limitation of four years and
therefore it is not acceptable.
2- Petitioner's contention is that he had passed his Higher Secondary
School Examination in the year 1984 for which mark-sheet Annexure P/2 was
issued in which date of birth of the petitioner is mentioned as 12.06.1964. His
name is mentioned as Mahendra Chanda Son of Shri Ramesh Chanda. It is
submitted that petitioner had moved an application in the year 2014 for
correction of his date of birth. That request was processed by the respondents
and they asked him to furnish certain documents which were duly furnished
by him but after considering those documents on the ground of limitation,
application is dismissed.
3- Reliance is placed on the judgment of Supreme Court in Jigya Yadav
(Minor) (Through Guardian/Father Hari Singh) vs. Central Board of
Secondary Education and others (2021) 7 SCC 535; wherein it is held that
right to identity and protection of identity of individual is guaranteed under
the Constitution and then on this aspect principles have been summarized on
the touchstone of control of one's name and freedom to modify or change
one's name. Placing reliance on this judgment it is submitted that since date
of birth is an important facet of identity of an individual, therefore, the Board
of Secondary Education erred in not permitting the change of date of birth.
4- After hearing Shri Akashansh Shrivastava, learned counsel for the
Board of Secondary Education, in his turn, submits that they have filed their
detailed return. He submitted that claim of the petitioner was rejected through
a speaking order inasmuch as petitioner was required to file certain
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
documents and it is apparent from Annexure R/1 that petitioner had not
produced mark-sheets of Class V, VIII and XII in original. The Scholar Panji
was issued in June, 2014 which is against the Rules and case being 30 years
old, it is not possible as per Rules to change the date of birth. He further
submitted that Annexure R/2 are the guidelines which clearly provides that no
case for change of date of birth after 3 years of declaration of the result will
be entertained. It is also submitted that there is a difference between change in
name or correction of name and correction of date of birth.
5- Learned counsel for the respondent No.2 submits that ratio of law laid
down in Jigya Yadav (supra) will not be applicable to the facts and
circumstances of the present case.
6- After hearing learned counsel for the parties and going through the
record, it is admitted fact that petitioner passed his Higher Secondary School
Examination in the year 1984. He moved an application after 30 years in the
year 2014. In the Higher Secondary mark-sheet annexed by the petitioner, his
name is mentioned as Mahendra Chanda Son of Ramesh Chanda. Same name
is mentioned in Annexure P/3 which is a certificate issued by the Madhya
Pradesh Board of Secondary Education, Bhopal. In the Dakhil Kharij
Register, name is mentioned as Mahendra Kumar Son of Ramesh Kumar.
7- The fact of the matter is that this is contrary to the name mentioned in
the Higher Secondary mark-sheet. Similarly, in the transfer certificate
Annexure P/7 issued on 04.06.2014, name is mentioned as Mahendra Kumar
Son of Ramesh Kumar. In the Primary School Certificate, year 2000-01 has
been erased and 1978 is mentioned. Again this certificate is issued by the
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
District Education Officer, Chhindwara and Valuation Centre Incharge. Same
is with the certificate of VIII class issued by mentioning year 1981 after
erasing 2000-01.
8- Thus, firstly there is incongruence between the names mentioned in
these certificates namely Dakhil Kharij Register, V class mark-sheet, VIII
class mark-sheet and the Higher Secondary mark-sheet. Besides that there is
delay in lodging claim for correction of date of birth.
9- Further, in the light of law laid down by the Supreme Court in the case
of Union of India Vs. Harnam Singh, AIR 1993 SC 1367, the following
principles have been laid down :
"A Government servant, after entry into service, acquires the right to
continue in service till the age of retirement, as fixed by the State in
exercise of its powers regulating conditions of service, unless the
services are dispersed with on other grounds contained in the relevant
service rules after following the procedure prescribed therein. The date
o f birth entered in the service records of a civil servant is, thus of
utmost importance for the reason that right to continue in service stands
decided by its entry in the service record. A Government servant who
has declared his age at the initial stage of the employment is, of course,
not precluded from making a request later on for correcting his age. It is
open to a civil servant to claim correction of his date of birth, if he is in
possession of the irrefutable proof relating to his date of birth as
different from the one earlier recorded and even if there is no period of
limitation prescribed for seeking correction of date of birth, the
Government servant must do so without any unreasonable delay. In the
absence of any provision in the rules for correction of date of birth, the
general principle of refusing relief on grounds of latches or stale claims,
is generally applied to by the courts and tribunals. 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 o f 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
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
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
allowed the period of limitation to expire. Unless altered, his date of
birth as recorded would determine his date of superannuation even if it
amounts to abridging his right to continue in service on the basis of his
actual age."
10- In the case of State of Assam Vs. Daksha Prasad Deka, AIR 1971 SC
173, so also in the light of law laid down in the case of Visakhapatnam Dock
Labour Board Vs. E. Atchanna, (1996) 2 SCC 484 wherein it is held that in
the controversy relating to the date of birth, it is the service record which has
primacy and superannuation etc. will be determined on the basis of service
record and not on what the employee claims to be his date of birth unless the
service record is first corrected in conformity with the appropriate procedure.
11- In the case of State of U.P. Vs. Gulaichi, AIR 2003 SC 4209, it has
been held that correction of the date of birth as recorded in the service book
should not normally be done on the verge of retirement since any such
correction might adversely affect the chances of promotion of those junior to
him.
12- In the case of Secretary & Commissioner, Home Department Vs. R.
Kirubakaran, AIR 1993 SC 2647, it has been held that the onus of proving
that there is a mistake which needs to be corrected is on the employee who
asserts so. It is further held by Hon'ble Supreme Court that when the dispute
is raised on the eve of superannuation, the Court or Tribunal must be slow in
granting interim relief for continuation in service unless prima facie evidence
of unimpeachable character is produced.
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
13- In the case of State of Punjab Vs. S.C. Chadha, (2004) 3 SCC 394, it is
held that unexplained delay in making an application coupled with absence of
any contemporaneous documentary evidence to show the recorded date to be
wrong will disentitle the employee to correct of the recorded date.
14- In other words, an application for correction of date of birth should be
made within some reasonable time. In the present case, there is delay of 30
years in lodging the claim.
15- As far as judgment rendered by Full Bench of Supreme Court in Jigya
Yadav (supra) is concerned it is evident that it is in regard to change of one's
name because the judgment deals with control of one's name and freedom to
modify or change one's name at any given point of time and does not deal
with change of date of birth at any given point of time, therefore, the
judgment rendered by Supreme Court in Jigya Yadav (supra) is of no
assistance to the petitioner.
16- When tested on the aforesaid touchstone, no illegality can be attributed
to the authorities in refusing the claim of the petitioner regarding correction of
his date of birth.
17- Petition being devoid of merit, deserves to be and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
anand
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/24/2023
11:14:13 AM
