State Of M.P. & Ors vs Premlal Shrivas

STATE OF M.P & ORS. -- APPELLANTS

VERSUS

PREMLAL SHRIVAS -- RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. This appeal is directed against the judgment and order dated 17th

January, 2002 passed by the High Court of Madhya Pradesh, Jabalpur

Bench, in Writ Petition No. 2561 of 2001. By the impugned

judgment, the High Court has allowed the writ petition preferred by

the respondent, directing the appellants to correct the service record of

the respondent, incorporating his date of birth as 30th June, 1945 in

place of 1st June, 1942, within a period of one month from the date of

the impugned order.

2. To appreciate the controversy involved, a brief reference to the facts,

as stated in the impugned judgment, would suffice. These are:

The respondent was appointed to the post of a Police Constable in

the year 1965. In the service book, prepared at the time of his entering the

service, his date of birth was recorded as 1st June, 1942. His father's

name was recorded as Gayadin. This position continued till 1990, when

he made a representation to the appellants seeking correction of his

father's name and date of birth in the service record. The plea of the

respondent was that at the time of joining the service, his date of birth as

also the name of his father was wrongly recorded on the basis of the

information furnished by his maternal grandfather, who was

accompanying him at that point of time as he was living with him after

the death of his father. According to the respondent, he came to know

about the mistake when he was promoted as Head Constable. In support

of his application, the respondent submitted his class IV marksheet,

transfer certificate of class VIII and a certificate from a local MLA.

3. By order dated 8th March 1995, the representation came to be rejected,

inter-alia, on the ground that the service record of the respondent was

prepared on the instructions of his maternal grandfather,

accompanying the respondent at the time of enrolment, the same

carries his finger and thumb impressions and was duly attested by the

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then Superintendent of Police on 7th September, 1976. Moreover, at

the time of enrolment, the respondent had been subjected to a medical

examination on 27th September 1965, when the Examining Medical

Authority had certified his age to be 23 years.

4. Being dissatisfied, the respondent preferred an application before the

M.P. Administrative Tribunal (hereinafter referred to as "the

Tribunal"). Referring to several documents brought on record by the

appellants, which included some documents which had been filled up

by the respondent himself and showing the date of his birth as 1st June,

1942 and father's name as Gayadin, the Tribunal dismissed the

application vide order dated 18th April, 2001.

5. Having failed before the Tribunal, the respondent filed a writ petition

before the High Court which set aside the order of the Tribunal and

allowed the writ petition. Being aggrieved, the State of Madhya

Pradesh and two of its functionaries are before us in this appeal.

6. Despite service of notice, the respondent remains unrepresented.

Accordingly, we have heard learned counsel for the appellants.

7. The learned counsel, appearing on behalf of the appellants,

strenuously urged that the High Court ought not to have directed a

change in date of birth of the respondent, on his request, made after a

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lapse of over two decades of his joining the service. It was asserted

that some of the documents in which his father's name was shown as

Gayadin, bore his signatures and, therefore, the plea of the respondent

that he was not aware of the contents of his service record cannot be

accepted. It was also submitted that as per Rule 84 of the M.P.

Financial Code, the date of birth recorded in the service record is

conclusive and only a bonafide clerical mistake in the said record can

be corrected. To bolster his submission, learned counsel commended

us to a recent decision of this Court in Punjab & Haryana High

Court at Chandigarh Vs. Megh Raj Garg & Anr.1, wherein it has

been held 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.

8. Having considered the issue at hand in light of the afore-stated factual

scenario, and the principles of law on the point, we are convinced that

the High Court was not justified in directing change in date of birth of

the respondent.

9. It needs to be emphasised that in matters involving correction of date

of birth of a government servant, particularly on the eve of his

superannuation or at the fag-end of his career, the Court or the

1 (2010) 6 SCC 482

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Tribunal has to be circumspect, cautious and careful while issuing

direction for correction of date of birth, recorded in the service book

at the time of entry into any government service. Unless, the Court or

the Tribunal is fully satisfied on the basis of the irrefutable proof

relating to his date of birth and that such a claim is made in

accordance with the procedure prescribed or as per the consistent

procedure adopted by the department concerned, as the case may be,

and a real injustice has been caused to the person concerned, the Court

or the Tribunal should be loath to issue a direction for correction of

the service book. Time and again this Court has expressed the view

that if a government servant makes a request for correction of the

recorded date of birth after lapse of a long time of his induction into

the service, particularly beyond the time fixed by his employer, he

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. No Court or the Tribunal can come to the

aid of those who sleep over their rights (See: Union of India Vs.

Harnam Singh2).

10. In Secretary And Commissioner, Home Department & Ors. Vs. R.

Kirubakaran3, indicating the factors relevant in disposal of an

2 (1993) 2 SCC 162

3 1994 Supp (1) SCC 155

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application for correction of date of birth just before the

superannuation and highlighting the scope of interference by the

Courts or the Tribunals in such matters, this Court has observed thus :

"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 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

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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)

11. In State of U.P. & Anr. Vs. Shiv Narain Upadhyaya4, while

reiterating the aforesaid position of law, this Court has castigated the

practice of raising dispute by the public servants about incorrect

recording of date of birth in their service book on the eve of their

retirement.

12. Viewed in this perspective, we are of the opinion that the High Court

committed a manifest error of law in ignoring the vital fact that the

respondent had applied for correction of his date of birth in 1990, i.e.,

25 years after his induction into service as a constable. It is evident

from the record that the respondent was aware ever since 1965 that his

date of birth as recorded in the service book is 1st June, 1942 and not

30th June, 1945. It had come on record of the Tribunal that at the time

of respondent's medical examination, his age as on 27th September,

4 (2005) 6 SCC 49

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1965 was mentioned to be 23 years and his father's name was

recorded as Gayadin; and in his descriptive roll, prepared by the

Senior Superintendent of Police as well, his father's name was shown

as Gayadin and his date of birth as 1st June, 1942 and this document

was signed by the respondent and the form of agreement known as

"Mamuli Sipahi Ka Ikrarnama" was filled up by the respondent

himself with the very same particulars. Therefore, it cannot be said

that the decision of the Tribunal rejecting respondent's plea that it

was for the first time in the year 1990, when he was promoted as

Head Constable, that he noticed the error in the service record was

vitiated. Be that as it may, in our opinion, the delay of over two

decades in applying for the correction of date of birth is ex-facie fatal

to the case of the respondent, notwithstanding the fact that there was

no specific rule or order, framed or made, prescribing the period

within which such application could be filed. It is trite that even in

such a situation such an application should be filed which can be held

to be reasonable. The application filed by the respondent 25 years

after his induction into service, by no standards, can be held to be

reasonable, more so when not a feeble attempt was made to explain

the said delay. There is also no substance in the plea of the respondent

that since Rule 84 of the M.P. Financial Code does not prescribe the

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time-limit within which an application is to be filed, the appellants

were duty bound to correct the clerical error in recording of his date of

birth in the service book.

13.Rule 84 of the M.P. Financial Code, heavily relied upon by the

respondent reads as under :

"Rule 84. Every person newly appointed to a service or a

post under Government should at the time of the

appointment declare the date of his birth by the Christian era

with as far as possible confirmatory documentary evidence

such as a matriculation certificate, municipal birth certificate

and so on. If the exact date is not known, an approximate

date may be given. The actual date or the assumed date

determined under Rule 85 should be recorded in the history

of service; Service book or any other record that may be

kept in respect of the Government servant's service under

Government. The date of birth, once recorded in this

manner, must be deemed to be absolutely conclusive, and

except in the case of a clerical error no revision of such a

declaration shall be allowed to be made at a later period for

any purpose whatever."

14.It is manifest from a bare reading of Rule 84 of the M.P. Financial

Code that the date of birth recorded in the service book at the time of

entry into service is conclusive and binding on the government

servant. It is clear that the said rule has been made in order to limit

the scope of correction of date of birth in the service record.

However, an exception has been carved out in the rule, permitting the

public servant to request later for correcting his age provided that

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incorrect recording of age is on account of a clerical error or mistake.

This is a salutary rule, which was, perhaps, inserted with a view to

safeguard the interest of employees so that they do not suffer because

of the mistakes committed by the official staff. Obviously, only that

clerical error or mistake would fall within the ambit of the said rule

which is caused due to the negligence or want of proper care on the

part of some person other than the employee seeking correction. Onus

is on the employee concerned to prove such negligence.

15. In Commissioner of Police, Bombay and Anr. Vs. Bhagwan V.

Lahane5, this Court has held that for an employee seeking the

correction of his date of birth, it is a condition precedent that he must

show, that the incorrect recording of the date of birth was made due to

negligence of some other person, or that the same was an obvious

clerical error failing which the relief should not be granted to him.

Again, in Union of India Vs. C. Rama Swamy & Ors.6, it has been

observed that a bonafide error would normally be one where an officer

has indicated a particular date of birth in his application form or any

other document at the time of his employment but, by mistake or

oversight a different date has been recorded.

5 (1997) 1 SCC 247

6 (1997) 4 SCC 647

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16. As aforesaid, in the instant case, no evidence has been placed on

record by the respondent to show that the date of birth recorded as 1st

June, 1942 was due to the negligence of some other person. He had

failed to show that the date of birth was recorded incorrectly, due to

want of care on the part of some other person, despite the fact that a

correct date of birth had been shown on the documents presented or

signed by him. We hold that in this fact situation the High Court

ought not to have directed the appellants to correct the date of birth of

the respondent under Rule 84 of the said rules.

17.In view of the foregoing discussion, the decision of the High Court,

holding that the respondent was entitled to get his date of birth

corrected in the service record, cannot be sustained. Resultantly, the

appeal is allowed and the impugned judgment is set aside, leaving the

parties to bear their own costs throughout.

...........................................

(D.K. JAIN, J.)

..............................................

(ASOK KUMAR GANGULY, J.)

NEW DELHI;

SEPTEMBER 19, 2011.

RS

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