Chand Devi W/O Hanuman Sain vs The State Of Rajasthan
2021 Latest Caselaw 7594 Raj/2

           HIGH COURT OF JUDICATURE FOR RAJASTHAN
                       BENCH AT JAIPUR

                  S.B. Civil Writ Petition No. 14291/2021

Chand Devi W/o Hanuman Sain, Aged About 54 Years, R/o Dev
Narayan Chowk, Lambahari Singh, Malpura, District Tonk. (Raj.).
                                                                             ----Petitioner
                                           Versus
1.          The State Of Rajasthan, Principal Secretary, Women And
            Child Development Department, Government Secretariat,
            Jaipur.
2.          Commissioner/director, Women And Child Development
            Department, Jaipur, ICDS, Gandhi Nagar, Jaipur.
3.          Deputy      Director,        Women          And       Child      Development
            Department, Tonk.
4.          Child Development Project Officer, Malpura, Tonk.
                                                                         ----Respondents

For Petitioner(s) : Mr. Laxmi Kant Malpura For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

14/12/2021 This writ petition has been filed with the following prayers:

1. To quash the advertisement dated 01.11.2021 issued by the

respondents for the post of Helper/Sahayika, village

Lambaharisingh, Malpura.

2. To permit the petitioner to continue on the post of

Helper/Sahayika treating her date of birth 08.09.1967.

3. To quash the action of the respondents retiring her prematurely

on 31.12.2021.

The facts in brief, as emerge from the writ petition, are that

the petitioner joined as Anganwari Sahayika village

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Lambaharisingh, Malpura, Tonk on 28.09.1996 in pursuance of

appointment order dated 19.09.1996. At the time of the

appointment, the petitioner has shown her to be of 40 years of

age. Relying on the transfer certificate dated 21.08.2019 and the

certificate dated 25.11.2021 issued by the Headmaster,

Government Girls Upper Primary School, Devgaon, Panchayat

Samiti Kekri and a copy of the scholar register of the school, it is

averred that the petitioner is of 54 years of age only her date of

birth being 08.09.1967 and she cannot be retired w.e.f.

31.12.2021.

Learned counsel for the petitioner contended that the

petitioner shown herself to be aged 40 years at the time of

appointment inadvertently and as a matter of fact, as is evident

from the school record, she was 29 years only at that time. He,

therefore, prays that the writ petition be allowed and the

respondents may be directed to permit her to continue till she

attains age of superannuation treating her date of birth to be

08.09.1967.

Heard learned counsel for the petitioner and perused the

record.

Indisputably, at the time of joining as Anganwari Sahayika

village Lambaharisingh, the petitioner has shown herself to be 40

years of age as is reflected from her joining report dated

28.09.1997. Now, after rendering services for more than 25 years,

the petitioner is claiming change in her date of birth in the month

she is scheduled to retire, i.e., December, 2021 that too on the

basis of certificates obtained in the year 2019 and 2021

respectively. Validity and genuineness of the copies of the transfer

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certificate dated 21.08.2019 and the certificate dated 25.11.2021

and the scholar register does not inspire confidence as the same

are neither original nor, certified copies of the originals. The writ

petition does not reveal that the petitioner ever approached the

respondents for change in her date of birth and she has filed the

writ petition directly before this Court. Even otherwise also, it is

trite that disputed question of facts cannot be entertained by this

Court under its writ jurisdiction. Dealing with identical situation,

their Lordships have held in case of Bharat Coking Coal Ltd. &

Ors. Vs. Shyam Kishore Singh: AIR 2020 SC 940 as under:

"8. 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 the case of State of Maharashtra and Anr. v. Gorakhnath Sitaram Kamble and Ors. (2010) 14 SCC 423: (2011 AIR SCW 206) wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:

"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 [(2005) 11 SCC 465 : 2006 SCC (L & S) 96] : (AIR 2005 SC 2491). 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 [(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.

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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 [1994 Supp (1) SCC 155 : 1994 SCC (L & S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158-159, para 7) (AIR 1993 SC 2647 at p. 2650, para 5)

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."

9. 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

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claimed as a matter of right. In that regard, in State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 : (AIR 2011 SC 3418, Paras 9 and 12) it is held as hereunder:

"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 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 [(1993) 2 SCC 162 : 1993 SCC (L & S) 375 : (1993) 24 ATC 92]) : (AIR 1993 SC 1367)

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

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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."

In case of Burn Standard Co. Ltd. & Ors. Vs. Dinabandhu

Majumdar & Anr.: (1995) 4 SCC 172, the Hon'ble Apex Court

held as under:

"7. Having gone through the order of the learned single Judge, we are unable to think that the discretionary extraordinary jurisdiction vested in the High Court under Article 226 of the Constitution has been properly exercised by him in issuing a writ in the nature of mandamus directing appellant 1 to correct the date of birth of respondent 1 in his "Service and Leave Record" and allow him to continue in service beyond the date when he should have retired having regard to his age as entered in his "Service and Leave Record". The Division Bench of the High Court also, we are inclined to think, has failed to see that the learned single Judge had not properly exercised his writ jurisdiction in granting relief to respondent 1, if regard is had to the nature of relief which he had sought for.

8. The importance of the date of birth of an employee given to his employer and accepted as correct by the latter and entered in the "Service and Leave Record" of the former, cannot be underestimated. That is so for the reason that the employee's service with the employer has to be necessarily regulated according to such date of birth. Therefore, when a person is taken into service on appointment, he would be required by his employer to declare his correct date of birth and support the same by production of appropriate certificates or documents, if any. Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared ages or dates of birth. When, on the basis of such declaration made or certificates produced by the employee an entry is made of his date of birth in his "Service and Leave Record" to be opened, that

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will amount to acceptance by the employer of such date of birth as correct, be it the Government or its instrumentality. When such entry is made in Service Record of the employee the only way in which the employer, Government or its instrumentality can get over such entry, because of subsequent disclosures as to its incorrectness, is to hold an inquiry into the matter by affording an opportunity to the employee concerned to have his say in the matter. But when once the employer, the Government or the instrumentality concerned accepts the date of birth of an employee as declared by him and supported by certificates or documents produced by him and allows him to enter into its service and continue on such basis, is it open to such employee to claim that the date of birth declared and authenticated by him was incorrect and, therefore, the employer, be it the Government or its instrumentality, should correct his date of birth in his "Service and Leave Record" according to what he claims to be true and if the Government or its instrumentality concerned refuses to accept such claim, can the High Court in exercise of its discretionary extraordinary writ jurisdiction entertain a writ application, to consider the merit of such claim?

9. No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbid correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction. If that be the legal position, can it be said that it is open to a High Court in exercise of its extraordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his "Service and Leave Record" at

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the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his ''Service and Leave Record" and continue him in service beyond the date of his normal retirement, is the question. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party. But, the question is that if an employee of the Government or its instrumentality, who is at the fag end of his service and due for retirement from his service shortly, according to his date of birth found in his "Service and Leave Record" files a writ application before the High Court and invokes its writ jurisdiction for correction of such date of birth with a view to continue in service beyond the normal period of his retirement, will it be appropriate for the High Court to entertain such application to enquire into disputed facts pertaining to his date of birth for correcting it and extend his period of service?

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. Extraordinary 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 has been 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

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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 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."

In the backdrop of law laid down by the Hon'ble Apex Court,

the writ petition does not merit acceptance and is dismissed

accordingly.

(MAHENDAR KUMAR GOYAL),J

MADAN/90

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