Punjab-Haryana High Court

Rakesh Kumar vs State Of Punjab And Ors on 25 January, 2024

                                                     Neutral Citation No:=2024:PHHC:010202




                                                      2024:PHHC:010202

        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH

221
                                           CWP-1102-2017
                                           Date of Decision : 25.01.2024

Rakesh Kumar                                                  .....Petitioner

                                 Versus

State of Punjab and others                                  .....Respondents


CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Present :    Mr. C.S. Singh, Advocate for the petitioner.

             Mr. Deepanjay Sharma, D.A.G., Punjab.

                                 ****

NAMIT KUMAR, J. (ORAL)

1. The petitioner has filed the present writ petition under

Articles 226/227 of the Constitution of India seeking a writ of certiorari

for quashing of the impugned order dated 07.12.2015 (Annexure P-4)

passed by respondent No.4,whereby his claim to change his date of birth

from 15.04.1958 to 14.11.1958, has been rejected by respondent No.4.

2. Brief facts, as have been pleaded in the present writ

petition, are that the petitioner joined the respondent-department as

Clerk on 10.05.1977 and was promoted to the post of Auction Recorder

on 14.04.1980. The petitioner submitted a request for change of his date

of birth from 15.04.1958 to 14.11.1958 and it is the case of the

petitioner that no action was taken on the said application. Thereafter,

he served a legal notice dated 15.07.2015 and since no action was taken

on the legal notice, he filed CWP No.19396 of 2015 titled as 'Rakesh

Kumar Vs. State of Punjab and others' which was disposed of by this

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Court vide order dated 14.09.2015 with a direction to take a final

decision on the legal notice dated 15.07.2015 within a period of 02

months from the receipt of certified copy of the order and in pursuance

thereto, the impugned order dated 07.12.2015 (Annexure P-4) has been

passed rejecting the claim of the petitioner for the change of his date of

birth from 15.04.1958 to 14.11.1958 and the said order has been

impugned in the present writ petition.

3. Learned counsel for the petitioner contends that when in

the month of January 2015, the office of the respondent directed the

petitioner to furnish certain information, which were required for

processing the case of the petitioner for his retirement, then he came to

know that in the service book his date of birth was wrongly mentioned

as 15.04.1958 instead of 14.11.1958 and he submitted an application for

the change of his date of birth in the service record. When no action was

taken on the said application, he served a legal notice dated 15.07.2015,

however, the same has been rejected by the respondents vide impugned

order dated 07.12.2015 due to which the petitioner got retired from

service about 07 months earlier.

4. On the other hand, learned State counsel has vehemently

opposed the present writ petition on the ground that the petitioner

cannot be allowed to change his date of birth in the service record at the

fag end of his service career.

5. I have heard learned counsel for the parties and perused the

record of the case.

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6. The petitioner joined the respondent/department as Clerk

on 10.05.1977 and at the time of joining the service, he gave his date of

birth as 15.04.1958 and on the basis of the said date of birth, he was to

retire on 30.04.2016. The petitioner submitted an application dated

01.05.2015 for releasing advance payment of 90% of G.P.F. along with

interest and in the said application he had given his date of retirement as

30.04.2016. However, just before his retirement, the petitioner had

pointed out that in the service record his date of birth was wrongly

mentioned as 15.04.1958 instead of 14.11.1958 and he submitted the

application for change of his death of birth in the service record. It is

well settled proposition of law that the employee cannot be allowed to

change his/her date of birth in the service record at the fag end of his

service career.

7. The Hon'ble Supreme Court in Union of India Vs.

Harnam Singh : 1993 (2) SCC 162 has held that it is open to the

employee to seek correction in his date of birth, if he is in possession of

irrefutable proof relating to his date of birth but the limitation was that it

must be done without any unreasonable delay. In the case of Burn

Standard Co. Ltd. vs Shri Dinabandhu Majumdar : 1995 AIR (SC)

1499, the High Courts extra-ordinary jurisdiction of writ Court was

commented upon and it was held that the extra-ordinary nature of the

jurisdiction is not meant to make employees of Government or its

instrumentalities to continue in service beyond the period of entitlement

according to their date of birth accepted by the employers. In the said

case by virtue of an interim order passed by the Learned Single Judge,

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the employee had continued in service and though he was to retire on

24.04.1991 and had been informed of the said fact on 05.06.1990. He

prayed for the benefit of extension in service on account of his date of

birth found in matriculation admit card, in which it was showed that he

was born on 07.07.1934, though his declared date of birth with the

employer was 25.04.1931. Resultantly, the following observations were

made:-

"10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extra-ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and

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laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his `Service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end-of his service, seeking correction of his date of birth entered in his `Service and Leave Record' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.

11. Prudence on the part of every High Court should, however, in our considered view, prevent it from granting interim relief in a petition for correction of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employment, because of the well settled legal position governing such correction of date of birth, which precisely stated, is the following: When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclose his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employee's statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules. Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not

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merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment. The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth. Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others. If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy. In any case in such cases Interim injunction for continuance in service should not be granted as it visits the juniors with irreparable injury, in that, they would be denied promotions a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received had he continued in service. We are, therefore, of the opinion that in such cases it would be imprudent to grant interim relief."

8. In the case of State of Gujarat & Ors. Vs Vali Mohmed

Dosabhai Sindhi : 2006 AIR (SC) 2735, it was held that once the date

of birth was entered in the service book, no entry or alteration is allowed

unless it was shown that it was due to want of care on the part of some

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person and it was obvious clerical error and once the State had framed

statutory rules while relying upon the judgment passed in the case of

Union of India Vs. Harnam Singh : 1993 (2) SCC 162, it was held that

on the eve of the retirement, questioning the entry of the date of birth

and in the absence of rules providing the change in date of birth cannot

be permitted, which was in the said case within a period of 5 years in

the Bombay Service Rules, 1959.

9. Similar is the position laid down in the case of Seema

Ghosh vs Tata Iron & Steel Company : 2006 AIR (SC) 2936 wherein

the Hon'ble Supreme Court had set-aside the award of the Labour Court

whereby the benefit had been granted.

10. The Division Bench of this Court in Ambika Kaul Vs.

Central Board of Secondary Education and others : 2015 (3) SCT 350

had examined the issue of the correction of date of birth, on the basis of

the entry in the register maintained by the Registrar (Births and Deaths),

which was at variance with the certificates issued by the Central Board

of Secondary Education. The Punjab Civil Services Rules and the

Financial Rules were also examined and eventually a finding was

recorded that the Government employee was stopped from disputing the

entry in the matriculation certificate, in terms of the relevant recruitment

rules. The same was on the principle of estoppel to the extent that once

he had represented and grown up with a particular date of birth, he

could not turn around to say that his date of birth is different. Even by

relying upon Section 6 of the Limitation Act, 1963, such suits could not

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be entertained after three years from the date of attaining the age of

majority. Relevant portions of the said judgment read as under:-

"[16] We respectfully agree with the views expressed by the Division Bench of this Court in Resham Singh's case (supra) that the birth certificate is a public record of births and deaths and must prevail over the matriculation certificate issued by school authorities. But the issue required to be examined is that even though the date of birth recorded in the matriculation certificate is at variance with the date of birth as recorded in the Register of Births & Deaths, whether such person is entitled to seek correction in the matriculation certificate relying upon the birth certificate. We find that he is estopped from disputing the entry in the matriculation certificate, which is made basis for employment in the public service in terms of the relevant recruitment Rules.

xxxxxxxxxxxxxxxxxxxxxxxxxxx [45] The right to seek actual date of birth has to be exercised within three years of attaining the majority on the basis of the birth certificate issued by the Registrar of Births and Deaths. But, after expiry of period of three years from the cessation of disability, no person can rely upon the birth certificate. He is bound by the date given in the matriculation certificate. Therefore, in any case, the right of a person to seek actual date of birth on the basis of entry in the birth certificate by the Registrar of Births and Deaths is three years after attaining the majority on the basis of date of birth in the said certificate."

11. The Hon'ble Supreme Court in State of M.P. and other Vs.

Premlal Shrivas : 2011 (9) SCC 664 has noticed that in the said case

the employee had applied for correction of his date of birth after 25

years of service and it was held that the exception to get the date of birth

corrected would be if there was a clerical error and no evidence had

been placed on record to show that it was due to the negligence of some

other person. Therefore, on the eve of retirement the Courts were being

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approached for such correction and the same was held to be unjustified.

Resultantly, the appeal was allowed and the judgment passed by the

High Court was set aside. Relevant portion of the said judgment reads

as under:-

"15. In Commissioner of Police, Bombay and Anr. Vs. Bhagwan V. Lahane 5 (1997) 1 SCC 247, this Court has held that for an employee seeking the correction of his date of birth, it is a condition precedent that he must show, that the incorrect recording of the date of birth was made due to negligence of some other person, or that the same was an obvious clerical error failing which the relief should not be granted to him. Again, in Union of India Vs. C. Rama Swamy & Ors. 6 (1997) 4 SCC 647, it has been observed that a bonafide error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded.

16. As aforesaid, in the instant case, no evidence has been placed on record by the respondent to show that the date of birth recorded as 1st June, 1942 was due to the negligence of some other person. He had failed to show that the date of birth was recorded incorrectly, due to want of care on the part of some other person, despite the fact that a correct date of birth had been shown on the documents presented or signed by him. We hold that in this fact situation the High Court ought not to have directed the appellants to correct the date of birth of the respondent under Rule 84 of the said rules."

12. Similarly, in M/s Bharat Coking Coal Limited and others

Vs. Shyam Kishore Singh : 2020 (3) SCC 411, it was held that even if

there was no evidence to establish that recorded date of birth is

erroneous, the correction cannot be claimed as a matter of right at the

fag end of service. It was noticed that service had been joined in the

year 1982 and a representation was made in the year 2009 and employee

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had to retire in the year 2010. Reliance having been placed upon the

matriculation certificate and since the High Court at Jharkhand had

allowed the writ petition, which had been upheld by the Division Bench,

the said orders were set aside on the ground of delay itself. Relevant

portion reads as under:-

"11. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer namely, the appellants herein in the case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein this Court with reference to the earlier decisions of this Court has upheld the order of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement (iii) was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him.

12. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the Nomination Form and rectify the defect if any, he had indicated the date of birth as 04.03.1950 and had further reiterated the same when Provident Fund Nomination Form was filled in 1998. It is

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only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified."

13. To the same effect is the judgment of the Hon'ble Supreme

Court in Director, Directorate of School Education Vs. V.

Ranganathan : 2020(1) SCT 530, wherein it has been held that a

request for correction in date of birth is to be made within a period of 05

years of entry into service and a request for change in date of birth in

the service record at the end of career of an employee, should not be

entertained. The operative part of the said judgment, reads as under:-

"10. In view of the above provision, a request for a correction in the date of birth had o be made within a period of five years of the entry into service. The request for a change in the date of birth in the service records was made virtually at the end of the career of the respondent. Even if a representation had been submitted on 11 August 1989, it was only in 2017 that the respondent moved the Tribunal. There was no cause or justification for the delay and was reason enough to reject the OA. Therefore, the Tribunal was correct in coming to the conclusion that the OA had to be dismissed on the ground of delay. The High Court erred in interfering with the judgment of the Tribunal. The High Court has proceeded in a manner contrary to Settled principles noted in several decisions of this Court including the decision in Harnam Singh (supra) which was drawn to its attention."

14. Further the Hon'ble Supreme Court in a recent judgment

Karnataka Rural Infrastructure Development Limited Vs. T.P.

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Nataraja and others : 2021(4) SCT 162, has held that the application of

an employee for change of date of birth is liable to be rejected on the

ground of delay and laches. The relevant portion from the said

judgment, reads as follows:-

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

15. The said principle would also be directly applicable in the

present facts and circumstances.

16. Moreover, the claim of the petitioner is that his date of

birth may be changed from 15.04.1958 to 14.11.1958 and even as per

the change date of birth also, the petitioner has already crossed the age

of retirement, therefore, no relief can be granted in the present writ

petition.

17. In view of the above factual position and the law laid down

in the abovesaid judgments, this Court is of the opinion that no case is

made out for setting aside the impugned order dated 07.12.2015 and for

issuance of direction to change the date of birth of the petitioner.

18. The writ petition stands dismissed, accordingly.




                                                      (NAMIT KUMAR)
25.01.2024                                                JUDGE
Kothiyal

             Whether Speaking/reasoned                Yes/No
             Whether Reportable                       Yes/No
                                                     Neutral Citation No:=2024:PHHC:010202

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