of Gujarat & Ors Vs. Vali Mohmed Dosabhai
Sindhi  Insc 427 (19
Pasayat & Lokeshwar Singh Panta
out of SLP (C) No.17788 of 2005) ARIJIT PASAYAT, J.
of Gujarat and Inspector General of Police, Ahmedabad,
and District Superintendent of Police, Mehsana, call in question legality of
the judgment rendered by a Division Bench of the Gujarat High Court dismissing
the Letters Patent Appeal filed by the appellant. By the impugned judgment,
order of learned Single Judge allowing the Writ Petition filed by the
respondent was upheld.
factual controversy lies within a very narrow compass. The respondent was
appointed as an unarmed Police Constable on 3.10.1947. At the time of
appointment his year of birth was mentioned as 1923. On this basis he was to
retire with effect from 1.11.1981 on reaching the age of 58 years. Accordingly,
order dated 16.2.1981 was passed by the concerned Authority. It was indicated
to the respondent that he will be retiring with effect from 1.11.1981. On
receiving the order, he submitted an application for making a change of his
date of birth in the service record. According to him, he was born in the year
1928 and not in 1923. Since the prayer was not accepted, he filed a writ petition.
Though prayer for interim relief i.e. to stay operation of the order dated
16.2.1981 was made, no interim direction was given and he retired from service
reaching the age of superannuation with effect from 1.11.1981. The writ
petition was allowed by order dated 30.4.1993 and it was held that the he was
to retire in the year 1986 with effect from 1.11.1986. Accordingly, direction
was given to the respondents in the writ petition to pay the arrears for the
period from 1.11.1981 to 1.11.1986.
Single Judge held that the school leaving certificate produced by the
respondent deserved acceptance and on that basis he ought to have been
continued till 1.11.1986. It was observed that the correctness of the school
leaving certificate on which the respondent based his claim was not doubted as
no counter affidavit was filed. Accordingly, the Writ Petition was allowed by
order dated 30.4.1993.
appellant preferred an LPA before the High Court which was dismissed so far as
the date of controversy is concerned. However the arrears were directed not to
other salary benefits were directed to be given.
support of the appeal, learned counsel for the appellant submitted that no
reason was assigned by the respondent as to why he requested change of his date
of birth after receiving the order relating to his retirement. He joined
service in 1947, for nearly 35 years he remained silent. The entry in the
service record was made on the basis of his own statement. No materials were
adduced to show that there was any error in the date recorded. On mere
production of school leaving certificate, authenticity of which was doubtful,
the High Court should not have granted a relief. It was pointed out that in the
so-called school leaving certificate no date of birth was indicated and only
the year was mentioned. This suspicious circumstance has been completely lost
sight of by the High Court.
is no response on behalf of the respondent.
to be noted that there are several rules governing request to change the date
of birth. One of them is Rule 171 of the Bombay Civil Services Rules, 1959 (in
short the 'Rules').
Rule clearly provides that the request made for alteration of date of birth
should not be entertained after the preparation of the service book of the
Government servant and in any event not after the completion of the probation
period or after 5 years of continuous service whichever was earlier. The said
rule categorically provides that once an entry of age or date of birth has been
made in the service book, no alteration of the entry afterwards should be
allowed unless it is shown that the entry was due to want of care on the part
of some person other than individual in question or is an obvious clerical
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." In the 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. The 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." In
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 observed:
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 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
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.
above position was also noticed in State of U.P.
and Others v. Gulaichi (Smt.) (2003 (6) SCC 483).
instant case the 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.
inevitable conclusion is that the order of learned Single Judge and impugned
judgment of the Division Bench affirming it cannot be sustained. Both the
orders are set aside. The appeal is allowed but without any orders as to costs.
Pages: 1 2