Full Judgment Text
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CASE NO.:
Appeal (civil) 5489 of 2003
PETITIONER:
State of U.P. and Anr.
RESPONDENT:
Shiv Narain Upadhyaya
DATE OF JUDGMENT: 28/07/2005
BENCH:
ARIJIT PASAYAT & H. K. SEMA
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
State of Uttar Pradesh and Executive Engineer, Sharda
Sahayak Khand-36, Jaunpur, U.P. calls in question legality
of the judgment rendered by a Division Bench of the
Allahabad High Court holding that the respondent’s date of
birth was 1.9.1939 and not 1.9.1930 as claimed by the
appellant-State.
Factual background in a nutshell is as follows:
The respondent-employee was engaged as Class IV
employee on 2.1.1972. In the service records the date of
birth was indicated to be 1.9.1930. By order dated 31.1.1991
the Executive Engineer-appellant no.2 intimated the
respondent-employee that he had superannuated on 30.9.1990
having completed 60 years of age. It was indicated that by
mistake he was allowed to work for three months more and
paid, and, therefore, direction was given to refund the
amount. The said order dated 31.1.1991 was challenged by
the respondent in a writ petition. His stand was that
according to the school records his date of birth was
1.9.1939 and without any opportunity he had been pre-
maturely retired nine years earlier. It appears that the
High Court directed production of the service records. By
the impugned order dated 11.10.2002 the High Court allowed
the writ petition holding that the State had failed to
produce the service record in spite of opportunities granted
and, therefore, the petitioner’s stand that his date of
birth was 1.9.1939 was accepted.
In support of the appeal, learned counsel for the
appellant submitted that the High Court’s view that service
record was not produced is clearly erroneous. On the
contrary along with affidavit dated 19.9.2002, copy of the
service book of the respondent-employee was filed. The High
Court did not take note of the said record. The document on
which the respondent-employee placed reliance was issued on
27.2.1991, after the order dated 31.1.1991 was issued. A
copy thereof is annexed as Annexure P-4 to the present
appeal. According to learned counsel for the appellant the
same makes very interesting reading. Most of the columns
requiring information have been indicated to be nil. The
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respondent had himself signed in the service book on
27.4.1977 where his month and year of birth were recorded to
be September, 1930. Additionally, in the seniority list of
Works Supervisor dated 2.9.1983 the respondent-employee was
shown as Chowkidar and his date of birth was indicated to be
1.9.1930. In the group insurance scheme document dated
6.11.1985, and document relating to surplus staff (Letter
No.1153/Sh.S.Kh.36/W-3 dated 10.6.1987 same is the position.
According to learned counsel for the appellant these
clearly demolish the respondent’s claim about his birth. At
no point of time the respondent-employee had questioned the
correctness of the entry made in the service book. After
the order was passed on 31.9.1991 for the first time he
produced a document, which was issued after the order dated
31.1.1991. All these according to him render High Court’s
judgment unsustainable.
There is no appearance on behalf of the respondent in
spite of the service of notice.
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, and 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 waking up from their supine
slumber raise a dispute about their service 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
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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
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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 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. 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.
These aspects were also reiterated in State of U.P. and
Ors. v. Gulaichi (Smt.) (2003 (6) SCC 483 and State of
Punjab and Ors. v. S.C. Chadha (2004) (3) SCC 394).
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The High Court has clearly erred in holding that the
service book was not produced. As the records reveal along
with the affidavit a copy of original service book was
filed. The documents have also been annexed in the present
appeal. As is clearly evident from the copy of the service
book, more particularly the respondent-employee had on
27.4.1977, signed the service book which contained his date
of birth as per Christian era. Additionally, the documents
referred to above indicated the date of birth to be
1.9.1930. This was also not challenged at any time.
Above being the position the High Court was clearly in
error in holding that the date of birth of the respondent-
employee was 1.9.1939, contrary to what has been recorded in
the service book. We find that the respondent-employee had
rendered service till the order dated 31.1.1991 was passed.
It would not be equitable to direct refund of salary
received by him upto 31.1.1991 beyond the actual date of
superannuation i.e. 30.9.1990. However, the period beyond
the actual date of superannuation i.e. from 30.9.1990 to
31.1.1991 shall not be reckoned towards his retiral
benefits.
The appeal is allowed to the aforesaid extent with no
order as to costs.