Sarojani Devi vs State Of Uttarakhand And Others
2021 Latest Caselaw 5304 UK

     HIGH COURT OF UTTARAKHAND
             AT NAINITAL
       Writ Petition (S/S) No. 1657 of 2021
Sarojani Devi                                    ...     Petitioner
                          Vs.
State of Uttarakhand and Others                  ...Respondents

Advocates : Mr. Mahavir Prasad Kohli, Advocate, for the petitioner
            Mr. V.S. Rawat, Brief Holder, for the State of
            Uttarakhand

Hon'ble Sharad Kumar Sharma, J.

The admitted case of the petitioner in the present writ petition, is that the petitioner was appointed as labourer with the respondent department under the Dying in Harness Rules, as back as on 12.12.1986. At the time of the induction into the services, the petitioner was issued with a birth certificate in Form-13 by the Pradhan and as per the entries made in Column 3A, which was issued in favour of the petitioner, the date of birth, which was certified by the Pradhan, was recorded as to be 16.12.1963.

2. Based on the said document, which was supplied by the petitioner at the time of induction into the services in 1986, the said date of birth dated 16.12.1963, constituted as to be the part of the record of the services as to be the date birth in the service record of the petitioner.

3. The petitioner to the present writ petition has come up with the case, that the respondents, for the reasons best known to them, though no malice has been attributed as such, in the pleadings, had changed the date of birth from 16.12.1963 to 09.12.1961, but, however, in the writ petition, where this averment has been made, that the respondents had made the

changes in the date of birth recorded in the service record of the petitioner, in fact, no challenge has been given to the said action of the respondents of unilaterally changing the date of birth of the petitioner as to be 09.12.1961. Apart from it, according to the pleadings raised by the petitioner, as per the date of birth recorded in her service record i.e. 09.12.1961, she would attain the age of superannuation on 31.12.2021.

4. This writ petition has been preferred by the petitioner, which was sworn by her on 08.12.2021, and had been filed before the Registry only on 20.12.2021, i.e. only a couple of days before her actual date of retirement i.e. 31.12.2021.

5. It is a settled law by the Hon'ble Apex Court, as well as, by the judgments passed by this Court, that a correction of date of birth in the service records, cannot be sought by an employee at the fag end of his services. Because it goes without saying, that the date of birth which had been recorded in the service records is on the basis of the certificate, issued by the Pradhan in her favour, which was the foundation of her appointment, it cannot be corrected at a later stage, because during the intervening period from the date of induction of the petitioner into the services and during the period of intervening period of service, till she attained the age of superannuation, the inference, which could be drawn is that due to consistent service record, which was made available to the petitioner, when the annual entries were recorded, and when she was made aware of the recorded date of birth of her, according to the service record.

6. Hence, in view of the ratio laid down by the judgments as reported in Judgments Today 1995 (1) S.C. 453, Chief Medical Officer Vs. Khadeer Khadri, and the judgment as reported in 2006 (6) SCC 537, State of Gujarat and others Vs. Vali Mohd.

Dosabhai Sindhi, no correction in date of birth in the service record for the purposes of its alteration in the service books can be sought by the petitioner. Relevant para No. 4 of Chief Medical Officer (Supra) is extracted hereunder:-

"4. No doubt, sub-rule (5) of Rule 2 of the Andhra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules, 1984, provides power for correction of the bona fide mistake in recording the date of birth. It cannot be said that it is a clerical mistake." The date of birth having been given and recorded in the service register as early in 1955 it was not a bona fide mistake. The respondent claimed that he discovered the mistake in 1991 that his date of birth instead is July 15, 1934 but it was recorded as November 14, 1933. This is only a ruse to get over the bar of limitation to have the date of birth entered in the service record corrected The rules prescribe the procedure for laying the application within three years from the date of entering into service. In 1976, executive instructions were issued for correction of date of birth which were replaced by statutory rules issued in 1984. The latter also prescribes the procedure. He did not avail of the opportunity when, twice, it was available to him to have it corrected. It would clearly show that subsequent belated attempt is not a bona fide one but to have the correction made to his advantage after the bar of limitation created by the rules. The Tribunal has not properly considered the matter in this perspective. The appeal is allowed. O.A. stands dismissed. No costs."

7. Relevant para No. 12 of the judgment State of Gujarat and others (Supra) is extracted hereunder:-

"12. An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a

declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior."

8. Hence, the writ petition lacks merit and the same is hereby dismissed.

(Sharad Kumar Sharma, J.) 23.12.2021 Mahinder/