State of Haryana Vs.
Satish Kumar Mittal & ANR. [2010] INSC 712 (7 September 2010)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7415 OF 2010 (ARISING
OUT OF SPECIAL LEAVE PETITION NO. 2901 OF 2008) State of Haryana Appellant
Versus Satish Kumar Mittal and another Respondents
GOKHALE, J.
1.
Leave
granted.
2.
This
appeal seeks to challenge the order passed by the High Court of Punjab and
Haryana in Regular Second Appeal No.3013/2007 dated 18.9.2010 whereby the
learned single judge has confirmed the judgment of the Additional District
Judge and that of the Civil Judge, Senior Division, whereby he had granted a
decree in favour of the Ist respondent herein.
The short facts
leading to this appeal are as follows:
3.
Respondent
No.1 joined the office of the Director of Prosecution, Haryana, as an Assistant
District Attorney on 2.4.1992. At that time, he got the date of his birth
recorded in the service book on the basis of the Matriculation Certificate in
which the date was mentioned as 25.3.1962. It is the case of the first
respondent that there was a family function in June 2001 where his relatives
gathered, and wherein during the discussion he came to know that his date of
birth was actually 25.11.1962, and that the one recorded in the matriculation
certificate was erroneous.
4.
The
first respondent made a representation on 2.7.2001 for correction of the date
of birth, which was rejected by the communication dated 24.9.2002 from the
Superintendent of Jails and the Judicial and Financial Commissioner (who is
also the Principal Secretary to the Administration of Judicial Department)
addressed to the Director of Prosecution, State of Haryana. The representation
was rejected on the basis of Finance Department's Notification dated 13.8.2001,
which laid 3 down that no application for correction in date of birth,
submitted after two years from entry into service, can be entertained.
5.
The
first respondent gave a notice under section 80 of the Code of Civil Procedure
(hereinafter referred to as the `CPC' for short) on 10.11.2005 and thereafter
filed a suit on 16.10.2006 for a declaration that the decision dated 24.9.2002
was bad in law. The second respondent herein viz. Secretary, Board of School
Education, Haryana, was joined as second defendant in the suit though he was a
proforma-defendant.
6.
The
Learned Addl. Civil Judge, Senior Division, who decided the suit, being Civil
Suit No.18 of 2006 took the view that the appellant was giving a retrospective
effect to the Notification dated 13.8.2001 and that was not permissible. The
Learned Civil Judge held that the suit was within time and granted a decree
that the order dated 24.9.2002 was illegal, null and void and that the date of
birth of the first respondent was 25.11.1962.
7.
The
appellant filed an appeal against this judgment and order to the Court of the
Additional District Judge, Karnal being Civil Appeal No.66/2007 which came to
be dismissed and so also the Regular Second 4 Appeal No.3013/2007, which was
filed against that order. The Learned Single Judge dismissed the second appeal
by a short order in view of the concurrence of views of the courts below.
8.
Being
aggrieved by all these orders, the present appeal by Special Leave has been
filed. It is submitted on behalf of the appellant that the first respondent
joined as the Assistant District Attorney on 2.4.1992 and the date of birth
given by him on the basis of the matriculation certificate was recorded in his
service book. Nine years later, he has sought to correct the date of birth,
allegedly on the basis of the discussion at a family function and by pointing
out the extracts of births of his brothers and sisters (though in none of them,
there is any name of the child). Even after his representation was turned down
on 24.9.2002 on the basis of the Government Notification dated 13.8.2001, he
took more than three years to serve the notice under Section 80 of the CPC,
which was served on 10.11.2005 and the suit was filed almost one year
thereafter on 16.10.2006. The appellant submitted that the action on part of
the first respondent was belated. It suffers from latches and the suit was also
barred by limitation. The Respondent No.1 on the other hand, defended the
impugned judgments as correctly rendered.
9.
It
was submitted on behalf of the appellant that the Courts below have erred in
not accepting the appellant's submission on the basis of the Notification dated
13.8.2001 issued by the Finance Department, Government of Haryana, containing
the amendments to the Punjab Finance Rules framed under Article 283(2) of the
Constitution of India. It is submitted that the Courts have erred in treating
this as a case of retrospective application of the relevant rule. It is pointed
out that prior to the Notification dated 13.8.2001 also there was the governing
rule 2.5 of the Punjab Civil Services Rules 1994 which laid down that the date
of birth of the government employees, once recorded in the service book, cannot
be corrected except in case of a clerical error without previous order of the
government. The rule further provided that the date of birth/declaration of age
made at the time of entry into service shall be deemed to be conclusive as
against the government servant, unless he applies for correction of his age
within two years from the date of his entry into government service.
The relevant Rule
contained in paragraph 1 of those rules reads as follows:- "ANNEXURE (A)
(Referred to in Rule 2.5 and Note 3 there under)
1. In regard to the
date of birth a declaration of age made at the time or for the purpose of entry
into Government service shall, as against the Government employee in question
be deemed to be conclusive. The employee already in the service of the
Government of Punjab on the date of coming into force 6 of the Punjab Civil
Services (First Amendment) Rules. Volume- I, Part-I, 1994, may apply for the
change of date of birth within a period of two years from the coming into force
of these rules on the basis of confirmatory documentary evidence such as
Matriculation Certificate or Municipal Birth Certificate etc. No request for
the change of date of birth shall be entertained after the expiry of the said
period of two years. Government, however, reserves the right to make a
correction in the recorded age of a Government employee at any time against the
interest 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 therefrom."
10.
This
provision was later on amended and under the rules amended on 20.12.2000, it
was provided that if application is made beyond two years, it must be
considered on the recommendation of the Administrative Department and the Chief
Secretary only in consultation with the Finance Department. It was entirely
left to the discretion of the government whether to entertain any such
application. The principle provision, which required that the employee must
apply within two years, remained unaltered. This rule amended on 20.12.2000
reads as follows:
"1. These rules
may be called Punjab Financial Volume-I (Haryana First Amendment) Rules, 2000.
2. In the Punjab
Financial Rules, Volume-I, in Annexure `A' referred to in Rule 7-3 and Note 3
thereunder,- (I) For paragraph 1, the following paragraph shall be substituted,
namely:- 7
1. In regard to the
date of birth a declaration of age made at the time of, or for the purpose of
entry into Government service, shall be against the Government employee in
question, be deemed to be conclusive unless he applied for correction of his
age as recorded within two years from the date of his entry into Government
service. Wherever, it is proposed to consider the application of the employee
for correction of his age within a period of two years from the date of his
entry into government service, the same would be considered by the government
in consultation with the Chief Secretary to Government of Haryana.
In cases where such
application has been made beyond the stipulated period and is proposed to be
accepted, the same shall be considered on recommendations of the Administrative
Department and the Chief Secretary to Government of Haryana, in consultation
with the Finance Department, Government however, reserves the right to make a correction
in the recorded age of the government employee at any time against the interest
of that government employee when it is satisfied that the age recorded in his
service book or in the history of services of a government employee is
incorrect and has been incorrectly recorded with the object that the government
employee may derive some unfair advantage therefrom."
11.
Subsequently,
by the notification dated 13.8.2001 amending the rules, it is once again made
clear that unless the application is made within two years, no change in the
date of birth will be entertained. This new rule 1, as amended on 13.8.2001
reads as follows:
" 1. These rules
may be called Punjab Financial Volume-I (Haryana First Amendment) Rules, 2001.
2. In the Punjab
Financial Rules, Volume-I, in Annexure `A' referred to in Rule 7.3 and Note 3
thereunder:- (i) for paragraph 1, the following paragraph shall be substituted,
namely:- 8
1. In regard to the
date of birth, a 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 applied for correction of his
age as recorded within two years from the date of his entry into government
service. No application submitted beyond the stipulated period of two years for
change in date of birth will be entertained. Wherever the application for
correction of his age is submitted by the employee within a period of two years
from the date of his entry into government service, the same would be
considered by the government in consultation with the Chief Secretary to
Government of Haryana. The government, however, reserves the right to make a
correction in the recorded age of government employee at any time against the
interest of that government employee when it is satisfied that the age recorded
in his service book or in the history of services of a government employee is
incorrect and has been incorrectly recorded with the object that the government
employee may derive some unfair advantage there from."
12.
Thus,
as seen from the above position, the relevant rule always required an
application for correction of date of birth to be submitted within two years
from joining the service. The amended rule of 20.12.2000 made a slight
modification that application filed after two years could be considered which
will be only on the recommendation of the Administrative Department. This provision
has now been removed after the rule was amended on 13.8.2001.
13.
The
import of such a provision has been clarified by this court from time to time.
Thus, in paragraph 7 of the Secretary and Commissioner, Home Department vs.
R.Kirubakaran [1994 (Suppl.
1) SCC 155] this
Court held as follows:
" 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 Court has,
thereafter stated that burden in such cases lies on the applicant and noted
that in many of such cases, the employees approach the Court on the eve of
retirement. The Courts and Tribunals 1 must be slow in granting any interim
relief in such cases. The same principle has been reiterated in State of UP vs.
Gulaichi [2003 (6) SCC 483]; State of Punjab vs. S C Chadha [2004 (3) SCC 394];
and State of Gujarat vs. Vali Mohmed Dosabhai Sindhi [2006 (6) SCC 537].
14.
As
recorded above, it has been held time and again that the application for
correction of date of birth is also to be looked into from the point of view of
the concerned department and the employees engaged therein. The other employees
have expectations of promotion based on seniority and suddenly if such change
is permitted; it causes prejudice and disturbance in the working of the
department. It is, therefore, quite correct for the State to insist that such
application must be made within the time provided in the rules, say, two years,
as in the present case.
15.
It
is also seen that such applications are made very often, almost at the end of
the service of the employee or in any case, belatedly.
Whatever may be the
reason, the fact remains that in the present case, the application was made
after some nine years of joining into service. Even assuming that first
respondent came to know in June 2001 that there was an error in his date of
birth entered in the matriculation certificate, as claimed by him, he took more
than three years to issue the notice under 1 Section 80 of the CPC and then to
file the suit. Whether the suit was time barred or not, the claim was in any
case belated. It has to be filed within the time provided or within a
reasonable time and it is not to be entertained merely on the basis of
plausible material as held in Kirbukaran (supra).
As observed by this
Court in State of UP vs. Shiv Narayan Upadhyaya [2005 (6) SCC 49]:
"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."
16.
In
the circumstances in our view, the High Court as well as the courts below
clearly erred in entertaining the claim of Respondent No.1 for correction in
his date of birth at a belated stage. In such a matter, we are concerned with
the correction in the date of birth for the purpose of service record and not
for any other purpose. The observation of this Court in para 7 of the Union of
India vs. Harnam Singh [1993 (2) SCC 162] in this behalf are quite apt.
"7. 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 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. ................."
17.
This
being so, the courts should not have entertained the claim of the first respondent
belatedly and beyond the period provided in the rules. The rules, in the
instant case, all throughout required such application to be made within two
years. Therefore, the courts clearly erred in finding fault with the appellant
for allegedly applying the Notification of 13.8.2001 retrospectively which was
not the case over here.
18.
In
the circumstances, we allow this appeal and set aside the orders passed by the
High Court as well as by the courts below. The suit filed by the first
respondent will stand dismissed.
........................................J.
(R.V. Raveendran )
.........................................J.
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