of U.P. and Anr Vs. Shiv Narain Upadhyaya
 Insc 372 (28
Pasayat & H. K. Sema Arijit Pasayat, J.
of Uttar Pradesh and Executive Engineer, Sharda Sahayak Khand-36, Jaunpur, U.P.
calls in question legality of the judgment rendered by a Division Bench of the Allahabad
High Court holding that the respondent's date of birth was 1.9.1939 and not
1.9.1930 as claimed by the appellant-State.
background in a nutshell is as follows:
respondent-employee was engaged as Class IV employee on 2.1.1972. In the
service records the date of birth was indicated to be 1.9.1930. By order dated
31.1.1991 the Executive Engineer-appellant no.2 intimated the
respondent-employee that he had superannuated on 30.9.1990 having completed 60
years of age. It was indicated that by mistake he was allowed to work for three
months more and paid, and, therefore, direction was given to refund the amount.
The said order dated 31.1.1991 was challenged by the respondent in a writ
petition. His stand was that according to the school records his date of birth
was 1.9.1939 and without any opportunity he had been pre- maturely retired nine
years earlier. It appears that the High Court directed production of the
service records. By the impugned order dated 11.10.2002 the High Court allowed
the writ petition holding that the State had failed to produce the service
record in spite of opportunities granted and, therefore, the petitioner's stand
that his date of birth was 1.9.1939 was accepted.
support of the appeal, learned counsel for the appellant submitted that the
High Court's view that service record was not produced is clearly erroneous. On
the contrary along with affidavit dated 19.9.2002, copy of the service book of
the respondent-employee was filed. The High Court did not take note of the said
record. The document on which the respondent-employee placed reliance was
issued on 27.2.1991, after the order dated 31.1.1991 was issued. A copy thereof
is annexed as Annexure P-4 to the present appeal. According to learned counsel
for the appellant the same makes very interesting reading. Most of the columns
requiring information have been indicated to be nil. The respondent had himself
signed in the service book on 27.4.1977 where his month and year of birth were
recorded to be September, 1930. Additionally, in the seniority list of Works
Supervisor dated 2.9.1983 the respondent-employee was shown as Chowkidar and
his date of birth was indicated to be 1.9.1930. In the group insurance scheme
document dated 6.11.1985, and document relating to surplus staff (Letter
No.1153/Sh.S.Kh.36/W-3 dated 10.6.1987 same is the position.
to learned counsel for the appellant these clearly demolish the respondent's
claim about his birth. At no point of time the respondent-employee had
questioned the correctness of the entry made in the service book. After the
order was passed on 31.9.1991 for the first time he produced a document, which
was issued after the order dated 31.1.1991. All these according to him render
High Court's judgment unsustainable.
is no appearance on behalf of the respondent in spite of the service of notice.
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, and 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 waking up
from their supine slumber raise a dispute about their service 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. 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 clinching 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
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.
aspects were also reiterated in State of U.P.
and Ors. v. Gulaichi (Smt.) (2003 (6) SCC 483 and State of Punjab and Ors. v. S.C. Chadha (2004) (3)
High Court has clearly erred in holding that the service book was not produced.
As the records reveal along with the affidavit a copy of original service book
was filed. The documents have also been annexed in the present appeal. As is
clearly evident from the copy of the service book, more particularly the
respondent-employee had on 27.4.1977, signed the service book which contained
his date of birth as per Christian era. Additionally, the documents referred to
above indicated the date of birth to be 1.9.1930. This was also not challenged
at any time.
being the position the High Court was clearly in error in holding that the date
of birth of the respondent- employee was 1.9.1939, contrary to what has been
recorded in the service book. We find that the respondent-employee had rendered
service till the order dated 31.1.1991 was passed.
would not be equitable to direct refund of salary received by him upto
31.1.1991 beyond the actual date of superannuation i.e. 30.9.1990. However, the
period beyond the actual date of superannuation i.e. from 30.9.1990 to
31.1.1991 shall not be reckoned towards his retiral benefits.
appeal is allowed to the aforesaid extent with no order as to costs.