State Of U.P. And Ors vs Smt. Gulaichi

Request for correcting the date of birth recorded, made

a few days before the date of superannuation as per original

records, having been accepted by the First Appellate Court

and confirmed by the impugned judgment of the High Court,

this appeal has been filed by the State of U.P. and Chief

Medical Officers, Azamgarh and Mau.

The respondent joined services under the State on 6th

July, 1959. In the service book her date of birth was

recorded to be 31.7.1929. Consequently, she was to retire on

31.7.1987. About three weeks before the date of retirement

i.e. on 7.7.1987 she approached the acting Chief Medical

Officer, Azamgarh claiming her date of birth to be

31.7.1939. The concerned official made the correction in her

service book. On that basis, she claimed that she was not to

retire on 31.7.1987. A suit was filed by the respondent-

plaintiff for a declaration that her date of birth is

31.7.1939, but by mistake of an officer/employee of the

department it was wrongly recorded as 31.7.1929. The suit

was essentially for a declaration that her date of birth to

be 31.7.1939, on consideration of the materials brought on

record. The stand was resisted by State of Uttar Pradesh.

Analysing the materials on record, learned 7th Addl.

Munsif, Azamgarh dismissed the suit. But in appeal, learned

7th Additional District Judge, Azamgarh allowed the appeal

and decreed the suit to the effect that the date of birth of

plaintiff (respondent herein) to be 31.7.1939 and that she

was entitled to all service benefits on that basis.

The State and the two officials preferred Second

Appeal before the Allahabad High Court which declined to

interfere with the order passed by the First appellate

Court.

Learned counsel for the appellants submitted that the

law relating to change of date of birth is fairly well

settled and the First Appellate Court as well as the High

Court fell in grave error by making the declaration to the

effect that the date of birth of respondent was 31.7.1939.

Several materials of unimpeachable character were lost sight

of and/or not considered, and erroneous inferences were

drawn which no reasonable person would arrive at. Relevant

materials were left out of consideration and irrelevant

materials weighted with the First Appellate Court as well as

the High Court for deciding the issue in favour of

respondent. Rule 2 of U.P. Recruitment of Service

(determination of date of birth) Rules, 1974 (in short the

'Rules') and U.P. Recruitment of Service (determination of

date of birth) (First Amendment) Rules, 1980 (in short the

'Amendment Rules') clearly delineate the area of permissible

correction, in view of what has been stated in Rule 2. There

is no scope for effecting any change, that too just a few

days before the date of superannuation. The person who

carried out the corrections had no authority in law to do so

in the teeth of the rule referred to above.

In response, learned counsel for the respondent

submitted that findings of fact have been recorded relating

to the correct date of birth, and on taking into

consideration the relevant materials the First Appellate

Court as well as the High Court rightly and in accordance

with law decided the issue in favour of respondent-employee

and no interference is called for.

Usually, no interference is called for when findings of

fact are recorded by the Trial/Appellate Court and the High

Court, more so, when the issue is decided in Second Appeal.

But where the Courts below loose sight of statutory

provisions or act on irrelevant or inadmissible materials,

and ignore relevant materials, interference is not

impermissible.

Normally, 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.

Most 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:

"The 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:

"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."

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. Whenever

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.

The 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 404)

As 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.

In the instant case the Rules and Amendment 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. Additionally, the First Appellate Court and the High

Court seem to have lost sight of the fact that the person

who endorsed changes was not authorized to do so. Original

service book was produced before us by learned counsel for

the appellants. Though learned counsel for the respondent

submitted that we should not look it, for the purpose of

arriving at the truth, we overruled the objection and looked

at the original document, which undisputedly was exhibited

during trial. The entry i.e. 31.7.1929 appears to have been

made simultaneously by one and the same person at the time

when other entries were made in FR Form No.13. Respondent

has herself signed the page at serial No.8, whereas the

entry relating to date of birth is at serial No.5.

Though learned counsel for the respondent submitted

that there was no original entry as in 1965 and 1984 there

were no entries in the service book, the documents annexed

to prove the said assertion do not inspire confidence. In

fact the existence of these documents is shrouded in

mystery. It has to be noted that before the Trial Court as

well as the First Appellate Court a definite stand was taken

by the respondent that due to mistake of an

employee/officer of the department, the date of birth was

recorded as 31.7.1929 instead of 31.7.1939 in her service

book. If the stand of respondent that there was no entry

till 1984 is correct, it could not be explained as to when

entry was made and by whose mistake it was wrongly recorded.

The stand presently taken runs counter to the pleadings and

stands before trial Court and first appellate Court.

Above being the factual and legal position, the

conclusion is inevitable that the First Appellate Court and

the High Court were not justified in their conclusions to

the effect that the date of birth of respondent was

31.7.1939. The Trial Court was correct in its analysis by

holding that the date of birth is 31.7.1929.

The order of the High Court is set aside. The date of

birth of respondent has to be taken for all purposes to be

31.7.1929 and not 31.7.1939 as claimed by her. The appeal is

allowed to the extent indicated above. There will be no

order as to costs.