of U.P. & Ors Vs. Smt. Gulaichi  Insc
313 (25 July 2003)
Raju & Arijit Pasayat.
out of SLP(C) No. 22513 of 2002) ARIJIT PASAYAT,J.
for correcting the date of birth recorded, made a few days before the date of
superannuation as per original records, having been accepted by the First
Appellate Court and confirmed by the impugned judgment of the High Court, this
appeal has been filed by the State of U.P. and Chief Medical Officers, Azamgarh
respondent joined services under the State on 6th July, 1959. In the service book her date of birth was recorded to be
31.7.1929. Consequently, she was to retire on 31.7.1987. About three weeks
before the date of retirement i.e. on 7.7.1987 she approached the acting Chief
Medical Officer, Azamgarh claiming her date of birth to be 31.7.1939. The
concerned official made the correction in her service book. On that basis, she
claimed that she was not to retire on 31.7.1987. A suit was filed by the
respondent- plaintiff for a declaration that her date of birth is 31.7.1939,
but by mistake of an officer/employee of the department it was wrongly recorded
as 31.7.1929. The suit was essentially for a declaration that her date of birth
to be 31.7.1939, on consideration of the materials brought on record. The stand
was resisted by State of Uttar
the materials on record, learned 7th Addl. Munsif, Azamgarh dismissed the suit.
But in appeal, learned 7th Additional District Judge, Azamgarh allowed the
appeal and decreed the suit to the effect that the date of birth of plaintiff
(respondent herein) to be 31.7.1939 and that she was entitled to all service
benefits on that basis.
State and the two officials preferred Second Appeal before the Allahabad High
Court which declined to interfere with the order passed by the First appellate
counsel for the appellants submitted that the law relating to change of date of
birth is fairly well settled and the First Appellate Court as well as the High
Court fell in grave error by making the declaration to the effect that the date
of birth of respondent was 31.7.1939.
materials of unimpeachable character were lost sight of and/or not considered,
and erroneous inferences were drawn which no reasonable person would arrive at.
Relevant materials were left out of consideration and irrelevant materials
weighted with the First Appellate Court as well as the High Court for deciding
the issue in favour of respondent. Rule 2 of U.P. Recruitment of Service
(determination of date of birth) Rules, 1974 (in short the 'Rules') and U.P.
Recruitment of Service (determination of date of birth) (First Amendment)
Rules, 1980 (in short the 'Amendment Rules') clearly delineate the area of
permissible correction, in view of what has been stated in Rule 2. There is no
scope for effecting any change, that too just a few days before the date of
superannuation. The person who carried out the corrections had no authority in
law to do so in the teeth of the rule referred to above.
response, learned counsel for the respondent submitted that findings of fact
have been recorded relating to the correct date of birth, and on taking into
consideration the relevant materials the First Appellate Court as well as the
High Court rightly and in accordance with law decided the issue in favour of
respondent-employee and no interference is called for.
no interference is called for when findings of fact are recorded by the Trial/Appellate Court and the High Court, more so, when
the issue is decided in Second Appeal.
where the Courts below loose sight of statutory provisions or act on irrelevant
or inadmissible materials, and ignore relevant materials, interference is not
in public service, with entering into the service, even the date of exit, which
is said as date of superannuation or retirement, is also fixed. That is why the
date of birth is recorded in the relevant register or service book, relating to
the individual concerned. This is the practice prevalent in all services,
because every service has fixed the age of retirement, it is necessary to
maintain the date of birth in the service records. But, of late a trend can be
noticed, that many public servants, on the eve of their retirement raise a
dispute about their records, by either invoking the jurisdiction of the High
Court under Article 226 of the Constitution of India or by filing applications
before the concerned Administrative Tribunals, or even filing suits for
adjudication as to whether the dates of birth recorded were correct or not.
of the States have framed statutory rules or in absence thereof issued
administrative instructions as to how a claim made by a public servant in
respect of correction of his date of birth in the service record is to be dealt
with and what procedure is to be followed. In many such rules a period has been
prescribed within which if any public servant makes any grievance in respect of
error in the recording of his date of birth, the application for that purpose
can be entertained. The sole object of such rules being that any such claim
regarding correction, of the date of birth should not be made or entertained
after decades, especially on the eve of superannuation of such public servant.
In the case of State of Assam v. Daksha Prasad Deka (1970 (3) SCC 624), this
Court said that the date of the compulsory retirement "must in our
judgment, be determined on the basis of the service record and not on what the
respondent claimed to be his date of birth, unless the service record is first
corrected consistently with the appropriate procedure."
case of Government of Andhra Pradesh v. M. Hayagreev Sarma (1990 (2) SCC 682)
the A.P. Public Employment (Recording and alteration of Date of Birth) Rules,
1984 were considered . The public servant concerned had claimed correction of
his date of birth with reference to the births and deaths register maintained
under the Births, Deaths and Marriages Registration Act, 1886.
Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed
by the petitioner before the Tribunal, in view of the entry in the births and
deaths register ignoring the rules framed by the State Government referred to
above. It was inter alia observed by this Court:
object underlying Rule 4 is to avoid repeated applications by a government
employee for the correction of his date of birth and with that end in view it
provides that a government servant whose date of birth may have been recorded
in the service register in accordance with the rules applicable to him and if
that entry had become final under the rules prior to the commencement of 1984
Rules, he will not be entitled for alteration of his date of birth."
Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v Rangadhar Mallik
(1993 Supp.(1) SCC 763), Rule 65 of the Orissa General Finance Rules, was
examined which provides that representation made for correction of date of
birth near about the time of superannuation shall not be entertained. The
respondent in that case was appointed on November 16, 1968. On September 9, 1986, for the first time, he made a representation for changing
his date of birth in his service register. The Tribunal issued a direction as
sought for by the respondent. This Court set aside the Order of the Tribunal
saying that the claim of the respondent that his date of birth was November 27,
1938 instead of November 27, 1928 should not have been accepted on basis of the
documents produced in support of the said claim, because the date of birth was
recorded as per document produced by the said respondent at the time of his
appointment and he had also put his signature in the service roll accepting his
date of birth as November 27, 1928. The said respondent did not take any step
nor made any representation for correcting his date of birth till September 9, 1986. In case of Union of India v. Harnam
Singh (1993(2) SCC 162) the position in law was again re- iterated and it was
Government servant who has declared his age at the initial stage of the
employment is, of course, not precluded from making a request later on for
correcting his age. It is open to a civil servant to claim correction of his
date of birth, if he is in possession of irrefutable proof relating to his date
of birth as different from the one earlier recorded and even if there is no
period of limitation prescribed for seeking correction of date of birth, the
Government servant must do so without any unreasonable delay." 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.
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.
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.
position was succinctly stated by this Court in the above terms in The Secretary
and Commissioner Home Department and Ors. v. R. Kirubakaran (JT 1993 (5) SC
404) As observed by this Court in State of Tamil Nadu v. T.V. Venugopalan (1994 (6) SCC 302) and State of Orissa and Ors. v. Ramanath Patnaik (1997
(5) SCC 181) when the entry was made in the service record and when the
employee was in service he did not make any attempt to have the service record
corrected, any amount of evidence produced subsequently is of no consequence.
The view expressed in R. Kirubakaran's case (supra) was adopted.
instant case the Rules and Amendment Rules referred to above clearly indicate
the permissible area for correction of date of birth. In view of the specific
provisions made, it was not permissible to effect any change. Additionally, the
First Appellate Court and the High Court seem to have lost sight of the fact
that the person who endorsed changes was not authorized to do so. Original
service book was produced before us by learned counsel for the appellants.
Though learned counsel for the respondent submitted that we should not look it,
for the purpose of arriving at the truth, we overruled the objection and looked
at the original document, which undisputedly was exhibited during trial. The
entry i.e. 31.7.1929 appears to have been made simultaneously by one and the
same person at the time when other entries were made in FR Form No.13.
Respondent has herself signed the page at serial No.8, whereas the entry
relating to date of birth is at serial No.5.
learned counsel for the respondent submitted that there was no original entry
as in 1965 and 1984 there were no entries in the service book, the documents
annexed to prove the said assertion do not inspire confidence. In fact the
existence of these documents is shrouded in mystery. It has to be noted that
before the Trial Court as well as the First Appellate Court a definite stand
was taken by the respondent that due to mistake of an employee/officer of the
department, the date of birth was recorded as 31.7.1929 instead of 31.7.1939 in
her service book. If the stand of respondent that there was no entry till 1984
is correct, it could not be explained as to when entry was made and by whose
mistake it was wrongly recorded.
stand presently taken runs counter to the pleadings and stands before trial
Court and first appellate Court.
being the factual and legal position, the conclusion is inevitable that the
First Appellate Court and the High Court were not justified in their
conclusions to the effect that the date of birth of respondent was 31.7.1939.
The Trial Court was correct in its analysis by holding that the date of birth
order of the High Court is set aside. The date of birth of respondent has to be
taken for all purposes to be 31.7.1929 and not 31.7.1939 as claimed by her. The
appeal is allowed to the extent indicated above. There will be no order as to