Full Judgment Text
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CASE NO.:
Appeal (civil) 2798 of 2005
PETITIONER:
U.P. Madhyamik Shiksha Parishad & Ors.
RESPONDENT:
Raj Kumar Agnihotri
DATE OF JUDGMENT: 21/04/2005
BENCH:
Ashok Bhan & Dr. AR. Lakshmanan
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P.(C) No.13097 of 2003)
Dr. AR. Lakshmanan, J.
Leave granted.
This appeal is directed against the final judgment and order dated 10.03.2003
passed by the Allahabad High Court, Lucknow Bench, Lucknow in Second Appeal No.
334 of 1999 whereby the High Court allowed the second appeal filed by the
respondent-herein.
Respondent was working as S.D.I. in the Education Department. As per his
service book, his date of birth was 30.07.1941. The Governor using the powers under
conditional part of Article 309 of the Constitution of India framed the following
Notification. The notification dated 28.05.1974 reads thus:-
"State of U.P.
Niyukti Vibhag Anubhag-4
Notification
28th May, 1974
No. 41/269 Niyukti-4 Governor using the powers under conditional part of
Article 309 of the Constitution of India, frames following Niyamawali:-
1. Short title an commencement /1/ This Niyamawali will be called date
of birth determination Niyamawali, 1974 for the purpose of appointment in
service in U.P.
2. It shall be enforced at once.
/2/. Exact date of birth or determination of Age of a Government servant
the date of birth or determination of age of a Government servant which has
been written in his High School Certificate or equivalent to it after passing
the examination or where a Government servant has not passed any such
examination, the date of birth or age which has been written in his service
book at the time of entering in Government service, in regard to his
services, for all the purposes, whether entitled for
promotions/supersession/pre-retirement or retirement or retrial benefits, the
date of birth or age as mentioned therein. Any application form or
application for correction in his date of birth or age will not be accepted in
any manner having any circumstances of any cost.
3. The enforcement of this Niyamawali, a relevant service rule or any
order which in corporate some reverse matters even shall be effective.
By Order
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/Gulam Hussain/
Commissioner & Secretary
\005\005\005"
The respondent-herein, after a gap of 35 years, filed a Regular Suit No. 176 of
1995 with the prayer to correct his date of birth from 30.07.1941 to 16.10.1945 on the
ground that his date of birth was wrongly entered in his High School Certificate of the
year 1960 issued by the Madhyamik Shiksha Parishad (hereinafter called "the
Parishad"), U.P., Allahabad. A written statement was filed by the Secretary of the
Parishad in the said suit explaining the facts that the respondent himself filled up the
High School examination form for the year 1960, which was duly forwarded by the
Principal concerned after going through the relevant records therein and in view of the
High School examination form of the year 1960, the High School Certificate was issued
by the Secretary of the Parishad wherein the respondent’s date of birth was mentioned
as 30.07.1941. It is thus seen that the respondent started litigation for the correction of
his date of birth after a gap of 35 years and just four years of his retirement.
The Court of Civil Judge [Junior Division], Sitapur delivered its decision dated
17.07.1999 in favour of the respondent with the direction to correct the date of birth
from 30.07.1941 to 16.10.1945. Aggrieved by the orders passed in the civil suit, the
Parishad filed Civil Appeal No. 73 of 1999 before the Ist Addl. District Judge, Sitapur
who by his order dated 07.08.1999 allowed the appeal of the respondent and held that:
"\005. It is admitted by the plaintiff that he himself put his signatures on the
High School Examination Form. So he is responsible for the entries in this
form."
"\005\005\005 The evidence given by plaintiff in this case is not of such nature that
may be said to be leading to this irresistible conclusion that his date of birth
is 30.10.45 and, which may be said to the conclusive and irrefutable proof of
the fact that his date of birth is 30.10.45 and that date of birth in his high
school examination certificate i.e. 30.7.41 is incorrect and that it should be
corrected. The finding of learned lower court on this point cannot be upheld
as the finding is not based on such conclusive and irrefutable proof which
may lead to the irresistible conclusion that the date of birth of plaintiff-
respondent is 16.10.45 and finding on this point is liable to be set aside.
Plaintiff/respondent have failed to prove his allegation that his date of birth is
16.10.45 by any irrefutable conclusive proof. Point for determination No.1 is
decided against the plaintiff/respondent and in favour of the defendant-
appellant\005\005.."
The appellate Court also held that the respondent’s suit was barred by limitation
as the relevant rules framed by the U.P. Board of Education had not been followed by
the respondent. As per Rule 7 of G.R. any application for correction is to be made
within two years of issuing certificate, while in the present case it was made after more
than 15 years i.e. on 25.05.1981 and the suit was filed on 07.04.1995.
Being aggrieved by the aforesaid order, the respondent filed Second Appeal No.
334 of 1999 before the High Court. The High Court passed an interim order dated
15.09.1999 directing the Secretary of the Parishad to enforce the decision dated
17.07.1999 passed by the trial Court with the condition that if the second appeal is
dismissed benefit given by the judgment and decree of the trial Court would not be
available to the respondent herein. The High Court also stayed the operation of the
judgment dated 07.08.1999 passed in Civil Appeal No. 73 of 1999. The High Court
again passed another order dated 27.07.2000 to comply with the interim order dated
24.05.2000. The High Court heard the second appeal and passed an order directing
the Secretary of the U.P. Board to be present before the Court on 10.08.2000 to inform
the Court whether the order dated 24.05.2000 had been complied with or not. The
notice was not conveyed to the Secretary till 09.08.2000. The Secretary could not be
present and the High Court issued a non-bailable warrant and fixed the date of hearing
on 28.08.2000. Aggrieved by the orders dated 24.05.2000 and 27.07.2000, the
appellant filed the above special leave petition No. 16375-77 of 2000 before this Court.
This Court stayed the operation of the impugned orders on 02.03.2001. This Court
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allowed the appeals and set aside the impugned orders and directed the High Court to
dispose of the second appeal as expeditiously as possible. The High Court, by the
impugned judgment dated 10.03.2003, allowed the second appeal filed by the
respondent. Being aggrieved, the above appeal was filed by the appellant in this Court.
We heard Dr. R.G. Padia, learned senior counsel for the appellants and Mr. B.B.
Singh, learned counsel for the respondent and carefully perused the judgments and
other annexures filed along with the appeal.
Dr. R.G. Padia, learned senior counsel appearing for the appellants, made the
following submissions at the time of hearing:-
1. The High Court has failed to appreciate that this Court in several cases
has held that correction in entries made in government records on the
basis of which the government servant got the service, cannot be allowed
to be changed, just a few years before retirement;
2. The High Court has failed to appreciate that the respondent had himself
admitted that the signature in the High School Examination form was
signed by him and, therefore, his plea that the form was filled by his
teacher is not at all sustainable and has been taken just to seek
extension of service;
3. The High Court on an erroneous appreciation of facts and law held that
there was a continuing cause of action;
4. The High Court failed to appreciate that since the first appellate Court
held that the evidence produced by the respondent could not be said to
lead to irresistible conclusion that the correct date of birth of the
respondent is 16.10.1945 and there was no question of law involved in
the case and the High Court ought not to have interfered in the matter by
re-appreciating the evidence;
5. The respondent’s claim regarding the correction of his date of birth could
not be entertained after several decades, specially on the eve of
superannuation.
Mr. B.B. Singh, learned counsel for the respondent, per contra submitted that
the first appellate Court ignored the vital documents and oral evidence which had been
adduced before the trial Court and that the trial Court after examining the documents
came to the conclusion that the date of birth of the petitioner was 16.10.1945. He has
invited our attention to some of the annexures filed along with the appeal.
Mr. B.B. Singh further submitted that from the mere perusal of the documentary
and oral evidence led by the parties, it is established that the respondent has agitated
the matter of correction of date of birth in High School Certificate as back as in the year
1967 and it is also established from the records that the respondent had moved an
application on 27.07.1991 clearly stating that his date of birth was 16.10.1945 and the
date of birth in the High School Certificate has been wrongly mentioned as 30.07.1941
without any basis and against the school records. Concluding his arguments, Mr. B.B.
Singh submitted that various documents and correspondences between the respondent
and the Education Department and with various others would clearly show that the date
of birth of the respondent was only on 16.10.1945 and that the lower appellate Court
had proceeded on altogether perverse approach without considering the oral
documentary evidence led by the respondent/plaintiff and reversed the finding of the
trial Court which was based upon proper appreciation of the evidence.
From the above background of facts, the following questions of law arise for
consideration:
a) Whether the respondent’s claim for change in date of birth from
30.07.1941 to 16.10.1945 is time barred;
b) Whether the High Court committed an error in not appreciating the
Government Notification and the law laid down by this Court that the suit
was barred by limitation;
c) Whether even on the evidence on record, it could be said that the
evidence was of such a nature as to lead to conclusive proof of the date
of birth of the respondent;
d) Whether Rule 2 of the U.P. Recruitment Service (Determination of the
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Date of Birth) Rules, 1974 stipulate that no application or representation
shall be entertained for correcting any date or age record and the entry
made in the service book shall be deemed to be the correct date of birth.
For the sake of convenience, Rule 2 of the above Rules, 1974 is reproduced
hereunder:-
"2. Determination of correct date of birth or age.- The date of birth of a
Government Servant as recorded in the certificate of his having passed
High School or equivalent examination at the time of his entry into the Govt.
service or where a Government Servant has not passed any such
examination as aforesaid or has passed any such examination after joining
the service, the date of birth of the age recorded in his service book at the
time of his entry into the Government service shall be deemed to be his
correct date of birth of age as the case may, be for all purposes in relation to
his service including eligibility for promotion, superannuation, premature
retirement or retirement benefits and no application or representation shall
be entertained for correction of such date or age in any circumstances
whatsoever."
In the instant case, the respondent had himself admitted that the signature in the
High School Examination form was signed by him and, therefore, his plea that the form
was filed by his teacher is not at all sustainable. We have also perused the judgment of
the appellate Court. The appellate Court has after appreciating facts and law rightly
held that the suit was barred by limitation as the relevant rules framed by the U.P.
Board of Education had not been followed by the respondent. As per Rule 7 of G.R.,
any application for correction is to be made within two years of issuing certificate, while
in the present case it was made after more than 15 years i.e. on 25.05.1981 and the
suit was filed on 07.04.1995. The High Court, in our view, has wrongly held that there
was a continuing cause of action. Even if for the sake of arguments if it is accepted
that document No. 63 [Ga] i.e. letter dated 13.10.1981 was written, even then the
respondent’s suit was barred by limitation as he filed the suit in 1995 after more than 14
years. The High Court has wrongly relied on the alleged application dated 27.02.1971
and Exhibit 63 & 64 and has failed to appreciate that the lower appellate Court after
perusing the evidence categorically held that the respondent could have summoned the
record from Kakori Shaheed Inter College, Jalalabad, Shahjahanpur when he got
admission in Class IX and documents of his date of birth should have been produced
by him at the time of admission in Class IX. These documents were the best
documents to prove the respondent’s case. The respondent’s failed to produce these
documents before the Court. As rightly argued by learned counsel for the appellant,
the respondent’s claim regarding the correction of his date of birth could not be
entertained after several decades, specially on the plea of superannuation. The
respondent being an educated man having completed his education upto M.A.Lt. and
having remained in service for about four decades reaching the age of his
superannuation discovered his age as incorrect by over four years short to the record
one could be unthinkable and unbelievable. The respondent’s date of birth having
been written and declared by him in his examination form for High School and entered
as such in High School Certificate and also entered as such in his service record by
him, could not be changed without having recourse to the law, the education rules and
the service rules and the provisions governing the respondent against settled law.
We have already noticed that the respondent’s suit is time barred as he has filed
the suit in 1995 whereas High School Examination Certificate which is sought to be
corrected is of 60 and this certificate was issued in time and he is seeking this
correction after 39 years. It may be mentioned at this point of time that after the written
statement of the defendant/appellant-herein the plaintiff/respondent-herein has not filed
any replications with counter allegation that how and why his original suit is not time
barred. This apart, any correction of any clerical error can be made if the candidate has
drawn the attention and has moved an application through concerned Principal within
two years of issuing the certificate. As per Rule 7 of G.R. any application for such
correction is to be made within two years of issuing of the certificate. In the present
case, the respondent has not moved any application within two years of this certificate
being issued through concerned Principal.
Learned counsel for the appellant has also relied on the following judgments of
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this Court:-
1. State of U.P. and Others vs. Gulaichi (Smt), (2003) 6 SCC 483
In this case, Rule 2 of the U.P. Recruitment of Service (Determination of Date of
Birth) Rules, 1974 and U.P. Recruitment of Service (Determination of Date of Birth)
(First Amendment) Rules, 1980 was under consideration by this Court. This Court,
after analysing various judgments referred to before them, came to the conclusion as
under:
"12. In the instant case the Rules and the Amendment Rules referred to
above clearly indicate the permissible area for correction of the date of birth.
In view of the specific provisions made, it was not permissible to effect
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. The original service-book was produced before us by
the learned counsel for the appellants. Though the learned counsel for the
respondent submitted that we should not look into 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 13. The
respondent has herself signed the page at Serial No. 8, whereas the entry
relating to the date of birth is at Serial No.5."
2. State of Uttaranchal and Others vs. Pitamber Dutt Semwal, (2002) 1
UPLBEC 441 SC.
In this case, here again, this Court was considering Rule 2 of the U.P.
Recruitment Service (Determination of Date of the Birth) Rules, 1974 and held as
under:
"6. These rules, the validity of which have not been challenged, clearly
stipulate that no application or representation shall be entertained for
correcting any date or age record and the entry made in the service book
shall be deemed to be the correct date of birth. Be that as it may, even de
hors the said rule, we are of the opinion that the plea of the respondent that
the date of birth was wrongly recorded was highly belated. He joined
service in 1964, the service book was prepared in 1965 and according to
the appellant, he has signed the said service book at least on three
occasions. In any case, the plea of the wrong recording of the age in the
service book has been taken, nearly thirty years after the service book was
prepared. In our opinion, the Division Bench was in error in ignoring the
provisions of the said Rule 2 and even otherwise, in the facts of this case,
there was no occasion for the High Court to have interfered with the
decision of the appellant."
3. State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302,
In this case, this Court held that the rule provided that an application for
alteration of recorded date of birth would be entertained only if made within five years
after entering the service. This Court held that an employee already in service at the
time of enforcement of such rule should make the application for correction within five
years from the date of enforcement of the rule, otherwise he would lose his right to
make such an application and the Government servant would not be permitted to
challenge the entry at the fag end of his service.
4. Executive Engineer, Bhadrak (R&B) Division, Orissa and Others vs.
Rangadhar Mallik, 1993 Supp (1) SCC 763.
In this case, this Court was considering Rule 65 of the Orissa General Finance
Rules stipulating that representation for correction of date of birth made near about the
time of superannuation shall not be admitted. This Court held that the representation
for correcting the date of birth made by respondent 18 years after is not maintainable in
law since the entry regarding date of birth made in the service record was on the basis
of the horoscope produced by the employee himself and after obtaining his signature.
5. Government of Andhra Pradesh and Another vs. M. Hayagreev Sarma,
(1990) 2 SCC 682.
A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984
was under consideration in this case by this Court. The date of birth of the employee
was recorded in the service book on the basis of school certificate at the time of entry
into service. The employee’s application for alteration in the date of birth so recorded
was finally rejected prior to coming into force of the rules. A subsequent claim was
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made by the employee for alteration after commencement of the rules. This Court held
that the subsequent claim for alteration after the commencement of the rules even on
the basis of the extracts of entry contained in births and deaths register maintained
under Births, Deaths and Marriages Registration Act, 1886 was not open.
6. Union of India vs. Harnam Singh, (1993) 2 SCC 162.
In this case, there was a delay of five years in seeking for alteration prescribed
in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in
service prior to 1979, for a period of more than five years, obliged to seek alteration
within the maximum period of five years from the date of coming into force of amended
note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction
into the service during which period he had several occasions to see the service book
to raise any objection regarding his date of birth cannot be allowed in view of
unexplained and inordinate delay.
7. Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Another,
AIR 1995 SC 1499.
"Entertainment by High Courts of writ applications made by
employees of the Government or its instrumentalities at the fag end of
their services and when they are due for retirement from their services,
is unwarranted. It would be so for the reason that no employee can
claim a right to correction of birth date and entertainment of such writ
applications for correction of dates of birth of some employees of
Government or its instrumentalities will mar the chances of promotion
of his juniors and prove to be an undue encouragement to the other
employees to make similar applications at the fag end of their service
careers with the sole object of preventing their retirements when due.
Extraordinary nature of the jurisdiction vested in the High Courts under
Article 226 of the Constitution is not meant to make employees of
Government or its instrumentalities to continue in service beyond the
period of their entitlement according to dates of birth accepted by their
employers, placing reliance on the so-called newly found material.
The fact that an employee of Government or its instrumentality who
will be in service for over decades, with no objection whatsoever
raised as to his date of birth accepted by the employers as correct,
when all of a sudden comes forward towards the fag end of his service
career with a writ application before the High Court seeking correction
of his date of birth in his Service Record, the very conduct of non-
raising of an objection in the matter by the employee, should be a
sufficient reason for the High Court, not to entertain such applications
on grounds of acquiescence, undue delay and laches. Moreover,
discretionary jurisdiction of the High Court can never be said to have
been reasonably and judicially exercised if it entertains such writ
application, for no employee, who had grievance as to his date of birth
in his ’service and Leave Record’ could have genuinely waited till the
fag end of his service career to get it corrected by availing of the
extraordinary jurisdiction of a High Court."
8. In The Secretary & Commissioner Home Department & Ors. Vs. R.
Kirubakaran, JT 1993 (5) SC 404, this Court held :
"An application for correction of the date of birth by a public
servant cannot be entertained at the fag end of his service. 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 the promotion forever. 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 clear case on the
basis of materials which can be held to be conclusive in nature, is
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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 and before any such direction is issued, the Court 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 time fixed by
any rule or order. The onus is on the applicant to prove about the
wrong recording of his date of birth in his service book.
\005.. As such whenever an application for alteration of the date
of birth is made on the eve of superannuation or near about that time,
the Court or the Tribunal concerned should be more cautious because
of the growing tendency amongst a section of public servants, to raise
such a dispute, without explaining as to why this question was not
raised earlier. In the facts and circumstances of the case, it is not
possible to uphold the finding recorded by the Tribunal."
It is thus seen from the above quoted judgments that this Court has consistently
taken the view that correction in entries made in Government records on the basis of
which the Government servant got the service cannot be allowed to be changed just a
few years before retirement or at the fag end of his retirement.
In the instant case, the U.P. Recruitment to Services (Determination of Date of
Birth) Rules came into force w.e.f. 28.05.1974. Rule 2 of the Rule was amended by the
first amendment Rules, 1980 of 07.06.1980. The existing rule and the substituted rule
are extracted herein below:
COLUMN 1
(Existing rule)
COLUMN 2
(Rule as hereby substituted)
2. The date of birth of Government servant
as recorded in the certificate of his having
passed the High School or equivalent
examination, or where a Government
servant has not passed any such
examination as aforesaid, the date of birth
or the age recorded in his service book at
the time of his entry into Government
service, shall be deemed to be his correct
date of birth or age, as the case may be,
for all purposes in relation to his service
including, eligibility for promotion,
superannuation, premature retirement or
retirement benefits, and no application or
representation shall be entertained for
correction of such date or age in any
circumstances whatsoever.
2. The date of birth of a Government
servant as recorded in the certificate of his
having passed the High School or
equivalent examination at the time of his
entry into the Government service or
where a Government servant has not
passed any such examination as
aforesaid or has passed such examination
after joining the service, the date of birth
or the age recorded in his service book at
the time of his entry into the Government
service shall be deemed to be his correct
date of birth or age, as the case may be,
for all purposes in relation to his service,
including eligibility for promotion,
superannuation, premature retirement or
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retirement benefits, and no application or
representation shall be entertained for
correction of such date or age in any
circumstances whatsoever.
As per the existing rule, the date of birth or the age recorded in his service book at the
time of entry into the Government service shall be deemed to be the correct date of
birth or age, as the case may be, for all purposes and no application or representation
shall be entertained for correction of such date or age in any circumstances
whatsoever.
The amended rule of 1980 was deemed to have come into force w.e.f
28.05.1974 and as per the substituted Rule, the date of birth or the age recorded in the
service book at the time of entry into the Government service shall be deemed to be the
correct date of birth or age, as the case may be, for all purposes and that no application
or representation shall be entertained for correction of date of birth or age in any
circumstances whatsoever. The respondent has given his date of birth as 30.07.1941
at the time of entry into service which has also been recorded in the service records of
the respondent. The above amended rule which come into force w.e.f. 28.05.1974
stipulates that no application or representation shall be entertained for correction of
such date or age in any circumstances whatsoever and that the date of birth or age
recorded in the service book at the time of his entry into government service shall be
deemed to be his correct date of birth or age as the case may be for all purposes.
In view of the above rule, we hold that the correct date of birth of the respondent
is only 30.07.1941 and the claim now made by the respondent to correct his date of
birth from 30.07.1941 to 16.10.1945 cannot at all be entertained or encouraged.
We do find much force in the argument of the appellants counsel that the suit
was barred by limitation of time. In these circumstances, the respondent’s suit is liable
to be dismissed and the findings of the lower appellate Court is to be affirmed and the
order passed by the High Court is liable to be set aside.
In view of the foregoing discussion, we have no hesitation to set aside the
judgment of the High Court dated 10.03.2003 in second appeal No. 334 of 1999 and
allow this appeal as prayed for by the appellant. However, we order no costs.