C.Vijay Mohan vs Honble High Court ...
2022 Latest Caselaw 2943 Tel

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

                      WRIT PETITION No.31091 of 2014

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

         Learned counsel appearing for the petitioner, on the last

date of hearing, sought an adjournment as his senior has to

argue the matter and today he states that the matter has to be

transferred to the High Court of Andhra Pradesh.

         The request for adjournment is declined.

         The undisputed facts of the case reveal that the petitioner

was a Judicial Officer appointed on 01.04.1987 and after

completion of training, he joined as II Additional District Munsif

at Srikakulam.             He was transferred from place to place. The

undisputed facts make it very clear that the date of birth of the

petitioner recorded in the S.S.C Certificate as well as all other

certificates issued from the various educational institutions is

11.09.1957 and the petitioner wanted correction of date of birth

from 11.09.1957 to 16.09.1959. The correction of date of birth

is being sought on the following grounds:-

   a)   The date of birth of the 4th issue of my parents Anantha Lakshmi
        Satyavathi is 19.05.1955 as mentioned in her S.S.C Certificate.

   b)   The    date   of   birth   of   my   immediate      elder   brother   Chikkam
        Satyanarayana Murthy is 21.05.1957, which fact is borne out from his
        S.S.C. Certificate. He is the fifth issue and third son of my parents,
        while I am the sixth issue and fourth son of my parents.              That my
        immediately elder brother was borne in the year 1957, I learnt is also
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       borne out from the entry relating to his date of birth in the Register of
       Births and Deaths at Razole Office.

  c)   My immediately younger sister V. Vijaya Lakshmi who is the 7th issue
       of my parents was born on 15.11.1961 which fact is borne out by her
       S.S.C. Certificate.

  d)   My elementary school record and horoscope which show my correct
       date of birth as 16.09.1959.

       Meaning thereby, the correction of date of birth is being

sought on the basis of horoscope, primary school record,

certificate of sister, certificate of brother as well as on the basis

of other documents. The petitioner, as stated by him, kept on

representing in the matter and finally an order was passed on

03.12.2012 by the erstwhile High Court of Andhra Pradesh

rejecting his case.

       The petitioner has attained the age of superannuation on

30.09.2017 and the writ petition was preferred in the year 2014

while in service.            The allocation of employees has been done

only in the year 2019 and therefore, at the time the writ

petitioner has attained the age of superannuation he was very

much an employee of the unified High Court for the States of

Telangana and Andhra Pradesh. Till his retirement, allocation

was not done in respect of officers serving the District Judiciary

also and therefore, this Court does have jurisdiction to decide

the present matter.

       The facts of the case reveal that in respect of the date of

birth entered in the service record in the year 1987, the petition
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was preferred by the petitioner for the first time in the year

2014, especially when a rejection order was passed on

03.12.2012.            Nothing prevented the petitioner to prefer a writ

petition immediately after his inception in service and the

petition was preferred only at the fag end of his service career.

Otherwise also, based upon horoscope, based upon educational

certificates of brother and sister, date of birth cannot be

corrected as prayed by the petitioner. The petitioner also never

took any steps at any point of time to get his date of birth

corrected in the S.S.C certificate and therefore, the erstwhile

High Court of Andhra Pradesh was certainly justified in

rejecting the claim of the petitioner for correction of date of

birth.

          This Court has carefully gone through the documents on

record. It is a case of an employee, who at the fag end of his

service career has approached this Court for correction of date

of birth after more than 27 years of service.                   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


1
    (2020) 3 SCC 411
                                4




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 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.

Pending miscellaneous applications, if any, shall stand

closed. There shall be no order as to costs.

________________________ SATISH CHANDRA SHARMA, CJ

_______________________ ABHINAND KUMAR SHAVILI, J

21.06.2022 JSU