P. Raja Vikram Reddy P.R. Vikram ... vs The State Of Telangana
2022 Latest Caselaw 830 Tel

    THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                             AND
        THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI

                     WRIT PETITION No.5852 OF 2020

ORDER:    (Per the Hon'ble the Chief Justice Satish Chandra Sharma)


      The petitioner before this Court has filed the present writ

petition at the fag end of his service only when four months are left for

his retirement seeking correction of date of birth from 12.08.1962 to

13.11.1963.

      The undisputed facts of the case reveal that the petitioner was

appointed on the post of Deputy Tahsildar on 19.03.1991 and the

date of birth in the service record was recorded as 12.08.1962. He

signed the service book with open eyes.                               However, as per the

contention of the petitioner, he submitted some application for

correction of date of birth on 27.05.1991 and thereafter, he has

approached this Court just at the fag end of his retirement i.e., in the

year 2020. Meaning thereby, after 30 years praying for correction of

date of birth. Now he is a retired employee also. The petitioner prays

for the following relief:

              "For the reasons stated in the companying affidavit, it is
      therefore prayed that this Hon'ble Court may be pleased to issue writ,
      order or direction more particularly one in the nature of writ of
      Mandamus declaring the action of the respondents in not considering

the representation of the petitioner duly correcting his date of birth as 13.11.1963 instead of 12.08.1962 in the SSC certificate and service register as illegal, arbitrary, unjust, unreasonable and discriminatory and contrary to Art. 14 of the Constitution of India and consequently

direct the respondents to alter the date of birth of the petitioner as 13.11.1963 instead of 12.08.1962 in the SCC certificate and service register of the petitioner and continue the petitioner in service till he attains the age of superannuation by reckoning the 13.11.1963 as the date of birth of the petitioner with all consequential benefits and also to declare the Proc.Rc.No.1136895/TB/2020 dated 05.08.2020 issued by the 4th respondent as illegal, arbitrary, unjust, unreasonable and unconstitutional and contrary to Rules and set aside the same."

This Court has carefully gone through the documents on record.

It is a case of an employee, who is at the fag end of his service career

left with only four months is approaching this Court for correction of

date of birth after more than three decades. The issue of correction of

date of birth has been looked into by the Hon'ble Supreme Court in

the case of Bharat Coking Coal Limited and others vs. Shyam

Kishore Singh1. Paras 8 to 14 of the aforesaid judgment read 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. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 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]. 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

Civil Appeal No.1009 of 2020, dt. 05.02.2020

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.

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."

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 claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 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] ).

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."

10. The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder:

"Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.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 No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.

The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.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."

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 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. Hence, the order dated 13.10.2017 passed by the learned Single Judge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passed by the Division Bench in LPA No.115 of 2018 are not sustainable.

14. In the result, the impugned order is set aside and the appeal is allowed with no order as to costs. Pending applications if any, shall also stand disposed of."

The Hon'ble Supreme Court has referred in the aforesaid case

the earlier judgments on the subject and has arrived at a conclusion

that a request for change of date of birth in service record at the fag

end of service career is unsustainable.

In the light of the aforesaid, this Court is of the opinion that the

request made at the fag end of the retirement cannot be entertained

and therefore, the net result is the writ petition is dismissed.

Miscellaneous petitions, if any, shall stand closed. There shall

be no order as to costs.

__________________________________ SATISH CHANDRA SHARMA, CJ

________________________________ ABHINAND KUMAR SHAVILI, J 22.02.2022 ES