Hon'ble Syed Rafat Alam, Chief Justice Hon'ble Ran Vijai Singh, J This intra-court appeal, under the Rules of the Court, arises from the order of the learned Single Judge dated 3rd November, 2011 dismissing the appellant's Writ Petition No. 62099 of 2011.
We have heard learned counsel for the appellant.
The short question involved in this appeal is as to whether the date of birth recorded in the service book of an employee can be modified or changed at his instance after long lapse of time or at the fag end of his service.?
It appears that the appellant was appointed as a Contract Labour in the month of February, 1980 in the Central Store Division of Parkisha Thermal Power Corporation at Pariksha in the district of Jhansi (hereinafter referred to as the 'Corporation'). His date of birth in the service book was recorded as 5th November, 1951. However, in the Identity Card, his date of birth was mentioned as 6th November, 1962. The appellant claims that when he came to know in January 1991 that his date of birth in the service record is wrongly recorded as 5th November 1951 in place of 6th September, 1962, he moved an application on 15.02.1991 for correction of his date of birth. He further claims that pursuant to the said application, the authority concerned assured that necessary correction would be made in the service record, however, nothing was done. Thereafter, the appellant submitted various representations/reminders but all went in vain. The appellant, however, did not pursue the matter. Thereafter, the appellant was served with the notice dated 6th September, 2011 intimating him that as per service record, wherein his date of birth is mentioned as 5th November, 1951, he shall retire on 30th November, 2011 on completion of 60 years of age. The aggrieved appellant, therefore, filed the aforesaid writ petition for quashing the notice dated 6th September, 2011 on the ground, inter-alia, that his real date of birth is 6th September, 1962 and as far back as in 1991, he made a request for correction of his date of birth but without correcting the same or disposing of his application, he has been served with the notice, impugned in the writ petition. The learned Single Judge, in the order has taken note of the fact that there is no denial by the appellant that his date of birth in the service book is recorded as 5th November, 1951, hence, he will attain the age of superannuation on 30th November, 2009 and his claim for continuance in service on the basis of the date of birth recorded in his Identity Card cannot be allowed. The learned Single Judge, therefore, relying on a judgment of Apex Court in the case of Burn Standard Co. Ltd. & Ors. Vs. Shri Dinabandhu Majumdar & Anr., JT 1995 (4) SC 23, wherein it has been held that the date of birth cannot be allowed to be changed at the verge of retirement, dismissed the writ petition. Hence, this appeal.
Learned counsel for the appellant vehemently contended that the learned Single Judge did not appreciate the submissions and the necessary facts for adjudication of the case and, therefore, fell in error in dismissing the writ petition. The contention is that the appellant, when came to know that his date of birth is wrongly recorded as 5th November, 1951, immediately filed the representation for its correction on 15.02.1991, which remained un-disposed by the authorities concerned despite several reminders. Learned counsel submits that the certificate issued by the Chief Medical Officer, Jhansi, wherein his age has been determined as 45 years on the date of issuance of such certificate, i.e. 06.09.2011, has also not been taken into account by the learned Single Judge. He further submits that the appellant, in the representation, has claimed that in the school certificate as well as the medical certificate, his date of birth is recorded as 6th September, 1962 and, therefore, his date of birth entered in his service record is required to be corrected.
We have considered the submissions.
The appellant has asserted his claim mainly on the basis of the certificate issued by the Chief Medical Officer, Jhansi and also on the basis of the date of birth mentioned in the mark sheet of class six. Though, in paragraph 7 of the writ petition, it has been stated that the appellant was asked to be examined by the Chief Medical Officer, Jhansi but the certificate issued by him on 06.09.2007 does not indicate that he was sent for medical examination for determination of his age by the Department/Corporation. The mark sheet of class six has also not been enclosed with the writ petition, though it has been stated that it is enclosed as Annexure-1 to the writ petition. It further transpires that after making representation in the year 1991, the appellant though claims to have submitted various reminders but sat over the matter and did not pursue further and it was only when the impugned notice informing him his date of retirement, he filed the writ petition.
The Apex Court has repeatedly held that on the strength of representation, stale claim should not be revived by the Courts by way of passing an order to decide the representation. In C. Jacob Vs. Director of Geology & Mining & Anr., AIR 2009 SC 264, the Apex Court has observed as under:-
"8. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of `acknowledgment of a jural relationship' to give rise to a fresh cause of action.
10. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for `consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing `consideration' of such claims."
In the instant case, the petitioner-appellant even did not bother to approach this Court for deciding his representation for correction of his date of birth prior to the notice of retirement given in the year 2011.
Learned counsel for the respondent-Corporation submitted that the provisions of the U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974 (hereinafter referred to as the 'Rules of 1974') applies to the Corporation and its employees and the date of birth for the purposes of retirement would be determined as per Rules of 1974.
To appreciate the controversy, it would be useful to refer to the relevant Rule. Rule 2 of the Rules of 1974, which was amended by first amendment in the year 1980 and is relevant for the present controversy, reads as under:-
"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 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 of his service, including eligibility for promotion, superannuation, premature retirement benefits, and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."
From a perusal of the above Rule, it transpires that if a person enters into service after passing the High School examination, then the date of birth recorded in the High School certificate shall be deemed to be his correct date of birth. However, in case, the employee has entered into service before passing the High School examination, then the date of birth recorded in the service book shall be deemed to be his correct date of birth. The said Rule also provides that no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. Thus, in relation to correction of date of birth, a legal fiction has been made which means that the date of birth recorded in either of the circumstances referred to under Rule 2 of the Rules of 1974 shall be deemed to be correct for all purposes particularly for the purpose of determining the age of retirement. The effect of deeming provision/legal fiction has been considered time and again. The Apex Court in the case of Sant Lal Gupta & Ors. Vs. Modern Cooperative Group Housing Society Ltd. & Ors., (2010) 13 SCC 336, has observed as under:-
"... It is the exclusive prerogative of the legislature to create a legal fiction meaning thereby to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. ..."
Further reference may be made to the decision of the Apex Court in Manorey alias Manohar Vs. Board of Revenue (U.P.) & Ors., (2003) 5 SCC 521.
Taking note of the dictum of the Apex Court as well as Rule 2 of the Rules of 1974, it is abundantly clear that if a person has entered into service without passing the High School examination, then the date of birth recorded in his service book shall be deemed to be correct and in case the employee has entered into service after passing the High School examination, the date of birth recorded in the High School certificate shall be deemed to be correct.
In the case in hand, admittedly, the appellant entered in service without passing the High School examination, therefore, the date of birth recorded in the service book shall be deemed to be correct and in view of the legal fiction created under Rule 2, no application or representation for its correction could be entertained.
That apart, the appellant approached this Court seeking correction in the date of birth at the fag end of his service and filed the writ petition in the month of October, 2011, just a month prior to the date of his superannuation, as he was due to retire in the month of November, 2011. It is settled legal position that the date of birth cannot be allowed to be corrected at the fag end of service of an employee. Reference may be made to the judgment of the Apex Court in Burn Standard Co. Ltd. (supra), and State of Madhya Pradesh & Ors. Vs. Premlal Shrivas, (2011) 9 SCC 664.
However, it is true that in certain extraordinary circumstances, an employee can claim correction in the date of birth provided he has got some irrefutable proof relating to his date of birth as different to that recorded earlier in his service book and satisfies that there has been real injustice to him and the correction sought in the date of birth is as per the procedure prescribed and within a reasonable time fixed by any rule or order. However, if there is no rule or order prescribing the period within which such application is to be filed, then such application must be filed within a reasonable period or time. Reference may be made to the judgments of the Apex Court in Union of India Vs. Harnam Singh, (1993) 2 SCC 162; State of Gujarat & Ors. Vs. Vali Mohd. Dosabhai Sindhi, (2006) 6 SCC 537, and Punjab and Haryana High Court at Chandigarh Vs. Megh Raj Garg & Anr., AIR 2010 SC 2295.
In view of above, the law can be summarized that normally the date of birth entered in the service book is sacrosanct and cannot be altered or changed at the fag end of service or after long lapse of time. However, in a very exceptional circumstances, where it is found that the claim is irrefutable/incontrovertible and the same has been raised within the limitation provided under the relevant Rules and in the absence of any limitation, within a reasonable time, then the application for correction of date of birth may be made. In the case in hand, the appellant entered in service in February, 1980 and as per service book, his date of birth was entered as 5th February, 1951 at the time of entry in service. However, for the first time, the appellant filed the application for correction of date of birth in the month of February, 1991. Thereafter, it appears, he did not pursue the same and slept over the matter. However, only when he was served with the notice dated 6th September, 2011 intimating that as per the date of birth recorded in the service book, he shall retire on 30th November, 2011 on attaining the age of 60 years, he approached this Court by filing the writ petition. No convincing explanation is coming forth as to why he did not approach the Court when his alleged representation filed in the year 1991 was not decided within a reasonable period or time. If his application seeking correction was not decided, then what prevented him to approach the Court within a reasonable time. Thus, in view of the settled law that correction in the date of birth cannot be made at the time of retirement from service and also in the absence of any clinching evidence whereupon it could be held that his date of birth is 1962 and further in view of Rule 2 of the Rules of 1974 which prohibits entertaining an application for correction of date of birth where the employee, at the time of entry in service, was not high school passed and in that event the date of birth mentioned in the service record shall be deemed to be correct date of birth of such employee, the relief sought in the writ petition and in this appeal cannot be granted.
In view of above, we do not find any fault in the order of the learned Single Judge.
The appeal, being without merit, stands dismissed.