State of M.P &
Ors. Vs. Premlal Shriva
J U D G M E N T
D.K. JAIN, J.:
1.
This
appeal is directed against the judgment and order dated 17th January, 2002
passed by the High Court of Madhya Pradesh, Jabalpur Bench, in Writ Petition No.
2561 of 2001. By the impugned judgment, the High Court has allowed the writ petition
preferred by the respondent, directing the appellants to correct the service
record of the respondent, incorporating his date of birth as 30th June, 1945 in
place of 1st June, 1942, within a period of one month from the date of the
impugned order.
2.
To
appreciate the controversy involved, a brief reference to the facts, as stated
in the impugned judgment, would suffice. These are: The respondent was
appointed to the post of a Police Constable in the year 1965. In the service
book, prepared at the time of his entering the service, his date of birth was recorded
as 1st June, 1942. His father's name was recorded as Gayadin. This position
continued till 1990, when he made a representation to the appellants seeking correction
of his father's name and date of birth in the service record. The plea of the
respondent was that at the time of joining the service, his date of birth as
also the name of his father was wrongly recorded on the basis of the
information furnished by his maternal grandfather, who was accompanying him at
that point of time as he was living with him after the death of his father. According
to the respondent, he came to know about the mistake when he was promoted as
Head Constable. In support of his application, the respondent submitted his class
IV marksheet, transfer certificate of class VIII and a certificate from a local
MLA.
3.
By
order dated 8th March 1995, the representation came to be rejected, inter-alia,
on the ground that the service record of the respondent was prepared on the instructions
of his maternal grandfather, accompanying the respondent at the time of enrolment,
the same carries his finger and thumb impressions and was duly attested by the 2
then Superintendent of Police on 7th September, 1976. Moreover, at the time of
enrolment, the respondent had been subjected to a medical examination on 27th September
1965, when the Examining Medical Authority had certified his age to be 23
years.
4.
Being
dissatisfied, the respondent preferred an application before the M.P. Administrative
Tribunal (hereinafter referred to as "the Tribunal"). Referring to
several documents brought on record by the appellants, which included some
documents which had been filled up by the respondent himself and showing the
date of his birth as 1st June, 1942 and father's name as Gayadin, the Tribunal dismissed
the application vide order dated 18th April, 2001.
5.
Having
failed before the Tribunal, the respondent filed a writ petition before the
High Court which set aside the order of the Tribunal and allowed the writ petition.
Being aggrieved, the State of Madhya Pradesh and two of its functionaries are
before us in this appeal.
6.
Despite
service of notice, the respondent remains unrepresented. Accordingly, we have heard
learned counsel for the appellants.
7.
The
learned counsel, appearing on behalf of the appellants, strenuously urged that the
High Court ought not to have directed a change in date of birth of the
respondent, on his request, made after a lapse of over two decades of his
joining the service. It was asserted that some of the documents in which his
father's name was shown as Gayadin, bore his signatures and, therefore, the
plea of the respondent that he was not aware of the contents of his service
record cannot be accepted. It was also submitted that as per Rule 84 of the M.P.
Financial Code, the date of birth recorded in the service record is conclusive
and only a bonafide clerical mistake in the said record can be corrected. To
bolster his submission, learned counsel commended us to a recent decision of this
Court in Punjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg & Anr.1,
wherein it has been held that the declaration of age made at the time of or for
the purpose of entry into government service is conclusive and binding on the
government servant.
8.
Having
considered the issue at hand in light of the afore-stated factual scenario, and
the principles of law on the point, we are convinced that the High Court was
not justified in directing change in date of birth of the respondent.
9.
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 1 (2010) 6 SCC 482 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 Vs. Harnam
Singh2).
10.
In
Secretary And Commissioner, Home Department & Ors. Vs. R. Kirubakaran3, indicating
the factors relevant in disposal of an 2 (1993) 2 SCC 1623 1994 Supp (1) SCC
155 5application for correction of date of birth just before the superannuation
and highlighting the scope of interference by the Courts or the Tribunals in
such matters, this Court has observed thus : "An application for
correction of the date of birth should not be dealt with by the 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 lose their promotions for ever. Cases are not unknown when a person accepts
appointment keeping in view the date of retirement of his immediate senior.
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.
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 filed within the time, which can be
held to be reasonable. 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 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 6 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 dates 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 for 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 merely caused injustice to his
immediate junior." (Emphasis supplied)
11.
In
State of U.P. & Anr. Vs. Shiv Narain Upadhyaya4, while reiterating the
aforesaid position of law, this Court has castigated the practice of raising dispute
by the public servants about incorrect recording of date of birth in their service
book on the eve of their retirement.
12.
Viewed
in this perspective, we are of the opinion that the High Court committed a
manifest error of law in ignoring the vital fact that the respondent had
applied for correction of his date of birth in 1990, i.e., 25 years after his
induction into service as a constable. It is evident from the record that the
respondent was aware ever since 1965 that his date of birth as recorded in the
service book is 1st June, 1942 and not 30th June, 1945.
It had come on record
of the Tribunal that at the time of respondent's medical examination, his age as
on 27th September, 4 1965 was mentioned to be 23 years and his father's name was
recorded as Gayadin; and in his descriptive roll, prepared by the Senior
Superintendent of Police as well, his father's name was shown as Gayadin and
his date of birth as 1st June, 1942 and this document was signed by the respondent
and the form of agreement known as "Mamuli Sipahi Ka Ikrarnama" was filled
up by the respondent himself with the very same particulars.
Therefore, it cannot
be said that the decision of the Tribunal rejecting respondent's plea that it
was for the first time in the year 1990, when he was promoted as Head Constable,
that he noticed the error in the service record was vitiated. 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.
13.
Rule
84 of the M.P. Financial Code, heavily relied upon by the respondent reads as
under : "Rule 84. Every person newly appointed to a service or a post under
Government should at the time of the appointment declare the date of his birth
by the Christian era with as far as possible confirmatory documentary evidence such
as a matriculation certificate, municipal birth certificate and so on. If the
exact date is not known, an approximate date may be given. The actual date or the
assumed date determined under Rule 85 should be recorded in the history of service;
Service book or any other record that may be kept in respect of the Government servant's
service under Government. The date of birth, once recorded in this manner, must
be deemed to be absolutely conclusive, and except in the case of a clerical error
no revision of such a declaration shall be allowed to be made at a later period
for any purpose whatever."
14.
It
is manifest from a bare reading of Rule 84 of the M.P. Financial Code that the
date of birth recorded in the service book at the time of entry into service is
conclusive and binding on the government servant. It is clear that the said
rule has been made in order to limit the scope of correction of date of birth in
the service record. However, an exception has been carved out in the rule,
permitting the public servant to request later for correcting his age provided that
9 incorrect recording of age is on account of a clerical error or mistake. This
is a salutary rule, which was, perhaps, inserted with a view to safeguard the
interest of employees so that they do not suffer because of the mistakes
committed by the official staff. Obviously, only that clerical error or mistake
would fall within the ambit of the said rule which is caused due to the
negligence or want of proper care on the part of some person other than the
employee seeking correction. Onus is on the employee concerned to prove such
negligence.
15.
In
Commissioner of Police, Bombay and Anr. Vs. Bhagwan V. Lahane5, this Court has held
that for an employee seeking the correction of his date of birth, it is a
condition precedent that he must show, that the incorrect recording of the date
of birth was made due to negligence of some other person, or that the same was an
obvious clerical error failing which the relief should not be granted to him. Again,
in Union of India Vs. C. Rama Swamy & Ors.6, it has been observed that a
bonafide error would normally be one where an officer has indicated a
particular date of birth in his application form or any other document at the time
of his employment but, by mistake or oversight a different date has been
recorded.5 (1997) 1 SCC 2476 (1997) 4 SCC 647
16.
As
aforesaid, in the instant case, no evidence has been placed on record by the
respondent to show that the date of birth recorded as 1st June, 1942 was due to
the negligence of some other person. He had failed to show that the date of
birth was recorded incorrectly, due to want of care on the part of some other
person, despite the fact that a correct date of birth had been shown on the
documents presented or signed by him. We hold that in this fact situation the High
Court ought not to have directed the appellants to correct the date of birth of
the respondent under Rule 84 of the said rules.
17.
In
view of the foregoing discussion, the decision of the High Court, holding that the
respondent was entitled to get his date of birth corrected in the service
record, cannot be sustained. Resultantly, the appeal is allowed and the
impugned judgment is set aside, leaving the parties to bear their own costs
throughout.
...........................................J.
(D.K. JAIN)
...........................................J.
(ASOK KUMAR GANGULY)
NEW
DELHI;
SEPTEMBER
19, 2011.
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