REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2331 OF 2004
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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