Punjab
&Haryana High Court at Chandigarh Vs. Megh Raj Garg & ANR. [2010] INSC
414 (20 May 2010)
Judgment
CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO. 1591 OF 2006 Punjab & Haryana High
Court at Chandigarh ........Appellant Versus Megh Raj Garg and another
..........Respondents
G.S.
Singhvi, J.
1.
Whether the decision taken by the Syndicate of the Panjab University to
entertain and accept the application made by respondent No.1 Megh Raj Garg for
changing the date of birth recorded in his matriculation certificate was
binding on the State Government and the High Court of Punjab and Haryana
(hereinafter described as `the appellant') and whether the suit filed by
respondent No.1 for ordaining correction of the date of birth recorded in his
service book was maintainable are the questions which arise for determination
in this appeal filed by the appellant against the judgment of the learned
Single Judge of the High Court in Regular Second Appeal No.901 of 1996.
2.
Respondent No.1 joined service as Sub Judge-cum-Judicial Magistrate, II Class
in March, 1973. His date of birth was recorded in the service book as 27.3.1936
because that was the date mentioned in the matriculation certificate and the
application made by him in response to the advertisement issued by the Punjab
Public Service Commission. After ten years of joining the service, respondent
No.1 submitted an application to the concerned authority of Punjab University for
amendment of the date of birth recorded in the matriculation certificate by
asserting that his correct date of birth was 27.3.1938 but by mistake the same
was recorded as 27.3.1936. In support of this assertion, respondent No.1 relied
upon the certificates issued by Government High School, Moonak and Hindu Sabha
High School, Sunam. The Date of Birth Committee of the University recommended
that the request made by respondent No.1 may be accepted. Thereupon, the
Syndicate of the University directed that the date of birth recorded in the
matriculation certificate of respondent No.1 be changed from 27.3.1936 to
27.3.1938. In compliance of the decision taken by the Syndicate, necessary
changes were made in the matriculation certificate of respondent No.1.
3. After
having succeeded in persuading the University to change the date of birth
recorded in his matriculation certificate, respondent No.1 represented to the
State Government for making corresponding change in the 3 date of birth
recorded in the service book. The State Government, in consultation with the
High Court, rejected the prayer of respondent No.1 and he was informed about
this vide letter dated 28.1.1993.
4.
Respondent No.1 challenged the decision of the State Government in Civil Suit
No.417-A of 1993 and prayed for grant of a declaration that the decision of the
State Government and the High Court not to correct the date of birth recorded
in his service book is illegal, void and ineffective. He also prayed for issue
of a mandatory injunction directing the defendants to change the date of birth
recorded in the service book from 27.3.1936 to 27.3.1938.
5. In the
written statement filed on behalf of defendant No.2 (appellant herein),
reliance was placed on Para 1 of Annexure-A to Chapter II of the Punjab Civil
Service Rules, Volume 1 and it was pleaded that the application made by
respondent No.1 for correction of date of birth recorded in his service book
after twelve years of entering into service was rightly rejected. It was
further pleaded that correction of the date of birth recorded in the
matriculation certificate by the University was not binding on the High Court
and the State Government.
6. On the
pleadings of the parties, the trial Court framed the following issues:
"(1)
Whether the order dated 28.1.1993 is illegal, null and void as alleged? OPP.
(2)
Whether the plaintiff is entitled to the relief of mandatory injunction as
prayed for? OPP.
(3)
Whether the suit is not maintainable as it is not within limitation? OPD.
(4)
Whether the plaintiff has no cause of action? OPD (5) Whether the plaintiff is
estopped from challenging the date of birth as mentioned in the office record?
OPD.
(6)
Relief."
7. After
considering the pleadings and evidence of the parties, the trial Court decreed
the suit and declared that rejection of the representation made by respondent
No.1 for correction of his date of birth was illegal and void.
The trial
Court also issued a mandatory direction for alteration of the date of birth
recorded in the service book of respondent No.1 from 27.3.1936 to 27.3.1938.
While dealing with the issue of limitation, the learned trial Judge
distinguished the judgments of this Court in Union of India v. Harnam Singh
(1993) 2 SCC 162 and Secretary and Commissioner, Home Department and others v.
R. Kirubakaran 1994 Supp.(1) SCC 155, by making the following observations:
5
"In my opinion, these authorities which are based on Rules /
Administrative instructions prescribing period of limitation within which the
employee can submit his application for correction of date of birth to his
employer, have become redundant so far as the present suit is concerned because
Punjab University has issued notification No. 11/4/93-5 PP-II/4499, dated
21.6.1994, making Rules to amend the Punjab Civil Services Rules, Volume-I,
Part-I, inter alia to the effect that employees of the Punjab Government can
apply for the change of date of birth to the Government within a period of two
years from the coming into force of the aforesaid Rules. Thus, the aforesaid two
rulings of the Hon'ble Supreme Court do not debar the plaintiff from seeking
his remedy in the Civil Court and at least do not make the suit barred by
limitation."
8. The
lower appellate Court agreed with the trial Court on all the issues and
dismissed the appeal preferred by the appellant. The second appeal jointly
filed by the appellant and the State of Punjab was dismissed by the learned
Single Judge, who held that the decree passed by the trial Court, which was
confirmed by the lower appellate Court was legally correct and justified. The
issue of limitation was decided by the learned Single Judge in the following
words:
"The
second contention raised by learned counsel for the appellants that the Punjab
Civil Service Rules, which are applicable to the plaintiff-respondent, bar the
present suit, as the same was not filed within two years after entry into
service, is also not acceptable. Vide notification dated 21.6.1994, an
amendment was made in the Punjab Civil Service Rules vide Punjab Civil Service (First
Amendment) Rules, Volume-I Part- I, 1994, according to which the employee
already in service of the Government of Punjab on the date of coming into force
of the amended rules may apply for the change of date of birth within a period
of two years from coming into force of these 6 Rules on the basis of
documentary evidence, such as Matriculation certificate or Municipal Birth
Certificate etc. By this amendment, one chance was given to those employees who
did not avail the opportunity to get their date of birth corrected within the
stipulated period of two years from entry into the Government service and a
fresh period of two years was provided to them which was to start from the date
of amendment. The contention of counsel for the appellants, that this amendment
was subsequently withdrawn by the State Government vide letter dated 13.12.1995
of the Deputy Secretary (Personnel) of the Department of Personnel and
Administrative Reforms of Government of Punjab, was rightly not accepted by the
Courts below in view of Division Bench decision of this Court in Civil Writ
Petition No.1476 of 1996, titled as Daljit Singh v. State of Punjab and others,
wherein it was held that simply on the basis of the letter dated 13.12.1995,
issued by the Deputy Secretary, the operation of the rules cannot come to a
standstill. Thus, in view of the said amendment, the suit filed by the
plaintiff-respondent cannot be said to be barred by limitation and the
contention of the appellants that the date of birth of an employee can only be
corrected within two years of entry into service cannot be accepted. The first
appellate court has also examined this aspect of the matter and discussed the
same in detail in paras 37 to 42 of its judgment. I find no infirmity or
illegality in the findings recorded by the Courts below in this regard. Even
otherwise, it has been held by a Division Bench of this Court in Jiwan Dass v.
State of Haryana and another, 1989(2) I.L.R. Punjab 110, that if a Government
employee did not get his date of birth altered under the service rules within a
stipulated period, then his remedy to get the same altered under the civil law
will not be barred because the administrative law do not bar jurisdiction of
Civil Court and the decision of the administrative authorities allowing or
rejecting the requests for alteration in date of birth is open to judicial
scrutiny when challenged before a court of competent jurisdiction."
9. We
have heard learned counsel for the parties and carefully scrutinized the
records. Para 1 of Annexure-A to Chapter II of the Punjab 7 Civil Service
Rules, Volume 1 (as it stood at the time respondent No.1 joined service and
also on the date of his making an application for correction of the date of
birth recorded in his service book), which has direct bearing on the issue
relating to maintainability of the suit filed by respondent No.1 reads as
under:
"In
regard to the date of birth declaration of age made at the time of or for the
purpose of entry into Government service shall, as against the Government
employee in question, be deemed to be conclusive unless, he applies for
correction of his age recorded within two years from the date of his entry into
Government service. The Administrative Department in consultation with the
Department of Personnel &
Administrative
Reforms, however, reserves the right to make a correction in the recorded age
of a Government employee at any time against the interests of the Government
employee when it is satisfied that the age recorded in his service book or in
the history of service of a Gazetted Government employee is incorrect and has
been incorrectly recorded with the object that the Government employee may
derive some unfair advantage there from."
10. An
analysis of the above reproduced rule makes it clear 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.
The only
exception to this is that the government servant can make an application for
correction of age within two years from the date of entry into service. This
necessarily implies that an application made by a government servant for
correction of age after two years of his entry into service cannot be
entertained by the competent authority. However, the competent 8 authority can,
at any time, correct the age recorded in the service book or in the history
service of a gazetted government employee if it is satisfied that the age has
been so recorded with a view to give undue benefit to the employee / officer
like continuance in service beyond the age of superannuation. Of course, while
undertaking this exercise, the competent authority is bound to comply with the
rule of audi alteram partem and give a reasonable opportunity to the concerned
employee/officer to represent his cause against the proposed change in the
recorded age/date of birth. In other words, while there is a complete bar to
the making of an application by the government servant for correction of his
recorded age after two years from the date of his entry into government
service, the competent authority can make correction at any time if it is found
that the age recorded in the service book is incorrect and has been so recorded
with a view to enable the concerned employee to continue in service beyond the
age of superannuation or gain any other advantage.
11.
Undisputedly, the date of birth of respondent No.1, who joined service in March
1973 was recorded in his service book as 27.3.1936. This was done keeping in
view the declaration made by him in the application form submitted for the
purpose of recruitment to the service and his matriculation certificate. Being
a law graduate, respondent No.1 must have been aware of 9 the date of birth
i.e., 27.3.1936 recorded in his matriculation certificate and this must be the
reason why he mentioned that date in the application form submitted to the
Public Service Commission. If the correct date of birth of respondent No.1 was
27.3.1938 and this was supported by the certificates issued by the schools in
which he had studied before appearing in the matriculation examination, then he
would have immediately after joining the service made an application to the
University for change of date of birth recorded in the matriculation
certificate and persuaded the concerned authority to decide the same so as to
enable him to move the State Government and the High Court for making
corresponding change in the date of birth recorded in his service book in terms
of Para 1 of Annexure-A to Chapter II of the Punjab Civil Service Rules, Volume
I. However, respondent No.1 waited for more than ten years after entering into
service and submitted an application dated 27.10.1983 to the University for
effecting change in the date of birth recorded in the matriculation certificate
by citing the school certificates as the basis for his claim. The Syndicate of
the University took about one year and three months to decide the matter in
favour of respondent No.1 and the date of birth recorded in the matriculation
certificate was changed from 27.3.1936 to 27.3.1938 sometime in
January/February 1985. Thereafter, respondent No.1 submitted representation
dated 22.2.1985 to the Registrar of the High Court seeking 10 correction in the
date of birth recorded in the service book. His plea was finally rejected in
January 1993. It is thus evident that respondent No.1 applied for change of the
date of birth recorded in his service book much beyond the time limit of two
years specified in the rule. The High Court or for that reason the State
Government did not have the power, jurisdiction or authority to entertain the
representation made by respondent No.1 after more than twelve years of his
entering into service. Therefore, neither of them committed any illegality by
refusing to accept the prayer made by respondent No.1 on the basis of change
effected by the University in the date of birth recorded in his matriculation
certificate. Unfortunately, the trial Court, the lower appellate Court and the
learned Single Judge of the High Court totally misdirected themselves in
appreciating the true scope of the embargo contained in the relevant rule
against the entertaining of an application for correction of date of birth
after two years of the government servant's entry into service and all of them
committed grave error by nullifying the decision taken by the State Government
in consultation with the High Court not to accept the representation made by
respondent No.1 for change of date of birth recorded in his service book. All
the courts overlooked the stark reality that respondent No.1 had made
application for change of date of birth recorded in the matriculation
certificate after more than ten years of his entry into government service and
the decision taken by 11 the Syndicate to accept his request did not give him
any cause for filing application or making representation for change of the
date of birth recorded in the service book.
12. This
Court has time and again cautioned civil courts and the High Court’s against
entertaining and accepting the claim made by the employees long after entering
into service for correction of the recorded date of birth.
In Union
of India v. Harnam Singh (supra), this Court considered the question whether
the employer was justified in declining the respondent's request for correction
of date of birth made after thirty five years of his induction into the service
and whether the Central Administrative Tribunal was justified in allowing the
original application filed by him. While reversing the order of the Tribunal,
this Court observed:
"A
Government servant, after entry into service, acquires the right to continue in
service till the age of retirement, as fixed by the State in exercise of its
powers regulating conditions of service, unless the services are dispensed with
on other grounds contained in the relevant service rules after following the
procedure prescribed therein. The date of birth entered in the service records
of a civil servant is, thus of utmost importance for the reason that the right
to continue in service stands decided by its entry in the service record. A
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 12
Government servant must do so without any unreasonable delay. In the absence of
any provision in the rules for correction of date of birth, the general
principle of refusing relief on grounds of laches or stale claims, is generally
applied by the courts and tribunals. It is nonetheless competent for the
Government to fix a time-limit, in the service rules, after which no
application for correction of date of birth of a Government servant can be
entertained. A Government servant who makes an application for correction of
date of birth beyond the time, so fixed, therefore, 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.
The law
of limitation may operate harshly but it has to be applied with all its rigour
and the courts or tribunals cannot come to the aid of those who sleep over
their rights and allow the period of limitation to expire. Unless altered, his
date of birth as recorded would determine his date of superannuation even if it
amounts to abridging his right to continue in service on the basis of his
actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad
Deka a public servant may dispute the date of birth as entered in the service
record and apply for its correction but till the record is corrected he cannot
claim to continue in service on the basis of the date of birth claimed by him.
This Court said: (SCC pp. 625-26, para 4) "... The date of compulsory
retirement under F.R. 56(a) 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. A public servant may dispute the date of birth as
entered in the service record and may apply for correction of the record. But
until the record is corrected, he cannot claim that he has been deprived of the
guarantee under Article 311(2) of the Constitution by being compulsorily
retired on attaining the age of superannuation on the footing of the date of
birth entered in the service record."
(emphasis
supplied) 13 13. In Secretary and Commissioner, Home Department and others v. R.
Kirubakaran (supra), this Court considered the question whether the Tamil Nadu
Administrative Tribunal had the jurisdiction to entertain an application made
by the respondent for correction of his date of birth just before
superannuation. While answering the question in negative, the Court observed:
"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 14 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 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)
14. In
Union of India v. C. Rama Swamy (supra), this Court, after an in depth analysis
of Rule 16-A of All India Services (Death-cum-Retirement Benefits) Rules, 1958,
reversed the order passed by Hyderabad Bench of the Central Administrative
Tribunal which had directed alteration of the date of birth of the respondent and
observed:
"In
matters relating to appointment to service various factors are taken into
consideration before making a selection or an appointment. One of the relevant
circumstances is the age of the person who is sought to be appointed. It may
not be possible to conclusively prove that an advantage had been gained by
representing a date of birth which is different than that which is later sought
to be incorporated. But it will not be unreasonable to presume that when a
candidate, at the first instance, communicates a particular date of birth there
is obviously his 15 intention that his age calculated on the basis of that date
of birth should be taken into consideration by the appointing authority for
adjudging his suitability for a responsible office. In fact, where maturity is
a relevant factor to assess suitability, an older person is ordinarily
considered to be more mature and, therefore, more suitable. In such a case, it
cannot be said that advantage is not obtained by a person because of an earlier
date of birth, if he subsequently claims to be younger in age, after taking
that advantage. In such a situation, it would be against public policy to
permit such a change to enable longer benefit to the person concerned. This
being so, we find it difficult to accept the broad proposition that the
principle of estoppel would not apply in such a case where the age of a person
who is sought to be appointed may be a relevant consideration to assess his
suitability."
15. By
applying the ratio of the above noted judgments, we hold that the suit filed by
respondent No.1 for correction of the date of birth recorded in his service
book after twelve years of his joining the service was clearly misconceived and
the trial Court committed a serious error by passing a decree in favour of
respondent No.1 and the lower appellate Court and the High Court repeated the
same error by refusing to set aside the decree passed by the trial Court. The
learned lower appellate Court and the High Court also committed an error by
relying upon the amendment made in the rule by notification dated 21.6.1994
which enabled the government servant to seek correction of date of birth within
next two years. It is neither the pleaded case of respondent No.1 nor it was
argued by the learned counsel appearing on his behalf that the amendment made
in 1994 was retrospective or that his client had applied for correction of date
of birth after 21.6.1994. Rather, in 16 response to the Court's query, the
learned counsel candidly stated that his client had applied for correction of
the date of birth recorded in the service book for the first and last time in
1985 after the University entertained and accepted his application for
correction of his date of birth recorded in the matriculation certificate.
16. In the
result, the appeal is allowed. The impugned judgment is set aside. The
judgments and decrees passed by the trial Court and lower appellate Court are
also set aside and the suit filed by respondent No.1 is dismissed. Ordinarily,
we would have saddled respondent No.1 with costs but keeping in view the fact
that he has already retired from service, we have refrained from doing so.
.............................J. [G.S. Singhvi]
..............................J. [C.K. Prasad]
New Delhi;
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