of Punjab Vs. Mohinder Singh  Insc 170
(14 March 2005)
Pasayat & S.H. Kapadia
out of SLP (C) No. 22477/2003 ARIJIT PASAYAT, J.
calls in question legality of the judgment rendered by a learned Single Judge
of the Punjab and Haryana High Court dismissing the Second Appeal filed by it
under Section 100 of the Code of Civil Procedure, 1908 (in short the 'Code')
holding that no question of law was involved.
background facts are as under:
(hereinafter referred to as the 'plaintiff') was appointed as a Patwari on
5.2.1958. At the time of appointment he disclosed his date of birth to be
1.10.1934. Complaints were received and preliminary enquiry was conducted and
it was held that his actual date of birth is 25.11.1931. A suit was filed by
the respondent for declaration to the effect that his date of birth as recorded
in service book i.e. 1.10.1934 is the correct date of birth and plaintiff is
entitled to all benefits and privileges which would have accrued to him had he
continued on that basis till the date of superannuation i.e. 30.9.1992 and for
setting aside the punishment awarded for allegedly manipulating records and
disclosing wrong date of birth.
issues were framed by the trial Court:
Whether the High Court was justified in observing that no substantial question
of law arises in the second appeal, whereas the substantial question of law
was/is whether interpretation of the expression "Government" in Rule
2.5 Note 1 of Punjab Civil Service Rules is not competent/appointing authority,
who is the Deputy Commissioner in this Case?
Whether as per Rule 2.5 Note 1 of Punjab Civil Service Rules, the date of birth
entered in the Service Book of an employee cannot be changed by the Competent
Authority after conducting a regular enquiry and giving proper opportunity of
hearing to the said employee?
Whether submission of wrong date of birth at the time of joining service
amounted to misconduct on the part of the said employee?
Whether the date of birth entered in the matriculation certificate shall not
prevail over the date of birth mentioned in the horoscope?
Whether entering a correct date of birth in service book after valid enquiry
qua the correct date of birth of the Respondent can be challenged, which was
entered after affording proper opportunity of hearing and which is final and
never challenged as bad?
Whether the respondent, who is literate and was qualified to be appointed as Patwari
was supposed to know the admissibility of document in respect of date of birth,
did not tamper with documents by submitting a wrong date of birth i.e.
1.10.1934 instead of 25.11.1931?
Whether a long span of 33 years ought to be allowed to come in the way to
correct a false entry regarding date of birth made on wrong and tampered
documentation of an employee, which undoubtedly being the date of birth shall
seriously affect the services of the colleagues of the said employees in the
Civil Judge (Senior Division) dismissed the suit holding that there was no
ground to interfere with the orders of the Deputy Commissioner who, on the
basis of the enquiry conducted, had observed that the date of birth was 1931
and not 1934 and if he had given actual date of birth he would have been over
age and would not have been eligible for the post of patwari. The enquiry
report of the Additional Deputy Commissioner was submitted on 21.5.1985. The
Sub-Divisional officer, Sangrur who hold the enquiry held that the charge
regarding change of date of birth from 25.11.1931 to 1.10.1934 was proved. The
Deputy Commissioner dismissed the respondent from service with effect from
27.7.1988 after granting opportunity of hearing. An appeal was filed before the
Commissioner who by order dated 18.6.1990 dismissed the same. He, however,
reduced the punishment by observing that ends of justice would be met if he is
reduced by one stage in his running grade with effect from the date on which he
was charge-sheeted till retirement and he will not earn any increment during
the period of this reduction till the date on which respondent was
superannuated from service.
the order passed by the trial court an appeal was preferred before the District
Judge who held that the materials on record do not show that there was any
change in the true date of birth and the claimed date of birth i.e. 1.10.1934
is the actual date of birth as recorded. Second Appeal filed by the appellant
as noted above was dismissed on the ground that no substantial question of law
counsel for the appellant submitted that the approach of the first Appellate
Court is not proper. On the basis of materials on record and after enquiry it
was held that the date of birth was 25.11.1931 and not on 1.10.1934 as claimed.
School register and the connected records were produced which clearly show that
the date of birth was 25.11.1931. The evidentiary value of these documents was
discarded by the first Appellate Court primarily on the ground that a horoscope
was produced according to which the date of birth was 1.10.1934.
response, learned counsel for the respondent submitted that on evaluation of
evidence the first Appellate Court held that the date of birth was 1.10.1934
and when a horoscope is available merely because a different date is indicated
in the school record same is of no consequence.
the course of hearing of the matter we directed the respondent to produce the
original school leaving certificate which was sought to have been brought from
the Government High School, Gujjarwal.
filed by the respondent. A perusal thereof shows that the date of birth has
been clearly indicated to be 25.11.1931. Stand of the respondent as noted above
was that the date of birth was entered in the service record by relying on the
horoscope. It is to be noted that respondent claimed that both school leaving
certificate and the horoscope were produced and the date of birth was recorded
by relying on the horoscope. It has not been explained as to how varying dates
remained. If according to the respondent, the horoscope reflected the actual
state of affairs it has not been explained as to why no steps were taken to get
the school records corrected. The first Appellate Court was not justified in
its conclusion that there was no material adduced by the present appellant to
substantiate its stand regarding the date of birth. One thing further
significant is that a school leaving certificate was produced at the time of
appointment. On enquiry it was found that the same was forged one. Apart from
the fact that there was no effort to reconcile the discrepancy in the so-called
horoscope and the school record is a factor which has rightly been taken note
of by the Trial Court. Without any plausible reason the first Appellate Court
took a different view.
terms of Section 32, clause 5 of the Indian Evidence Act, 1872 (in short the
'Evidence Act'), the evidentiary value of a horoscope has to be considered. No
evidence was led by the respondent to prove authenticity of the same. In any
event the same was not to be given primacy over the school leaving certificate.
It was not shown as to how the entry therein was wrong. The onus was on the
respondent to prove that the same was not correct, which was not discharged. Two
photostat copies of the school leaving certificate were produced before the
enquiry officer. He compared them and found that even to naked eye change of
figure "31" to "34" was visible. Interestingly in the said
copies the date of birth was indicated even after the change to be 25.11.1934
and not 1.10.1934 as claimed.
is a very weak piece of material to prove age of a person. In most cases, the
maker of it may not be available to prove that it was made immediately after
the birth. A heavy onus lies on the person who wants to press it into service
to prove its authenticity.
fact, a horoscope to be treated as evidence in terms of Section 32 Clause (5)
must be proved to have been made by a person having special means of knowledge
as regards authenticity of a date, time etc. mentioned therein. In that context
horoscopes have been held to be inadmissible in proof of age. (See Ram Narain Vallia
v. Monee Bibi (ILR 9 Cal.613), Mst. Biro v. Atma Ram (AIR 1937 PC 101), Satish
Chandra Mukhopadhya v. Mohendra Lal Pathak (ILR 97 Cal. 849).
contrary, the statement contained in the admission register of the school as to
the age of an individual on information supplied to the school authorities by
the father, guardian or a close relative is more authentic evidence under
Section 32, Clause (5) unless it is established by unimpeachable contrary
material to show that it is inherently improbable. The time of one's birth
relates to the commencement of one's relationship by blood and a statement
therefore of one's age made by a person having special means of knowledge,
relates to the existence of such relationship as that referred to in Section 32
observed by this Court in Umesh Chandra v. State of Rajasthan (1982 (2) SCC
202), ordinarily oral evidence can hardly be useful to determine the correct
age of a person, and the question, therefore, would largely depend on the
documents and the nature of their authenticity. Oral evidence may have utility
if no documentary evidence is forthcoming. Even the horoscope cannot be
reliable because it can be prepared at any time to suit the needs of a
in the school register and admission form regarding date of birth constitute
good proof of age. There is no legal requirement that the public or other
official book should be kept only by a public officer and all that is required
under Section 35 of the Evidence Act is that it should be regularly kept in
discharge of official duty. In the instant case the entries in the school register
were made ante litem motam.
the school records have more probative value than a horoscope. Where no other
material is available, the horoscope may be considered but subject to its
authenticity being established. These aspects were not considered by the first
appellate Court and the High Court.
High Court was, therefore, not justified in dismissing the Second Appeal by
observing that there was no substantial question of law involved.
the first appellate Court acted on irrelevant materials and left out of
consideration relevant materials question of law was involved. The suit that
was filed was rightly dismissed by the Trial Court.
the appeal is allowed. No costs.