Important Point
In a matter of correction of date of birth in service record unless a clear case on basis of clinching material which can be held to be conclusive in nature is made out and that too within a reasonable time, Court should not issue a direction to make a declaration on basis of material which make such claim only plausible.

Headnote:Service Law—Writ petition for correction of date of birth in service record—An application for correction of date of birth should not be dealt with by Courts, Tribunal keeping in view only the public servant concerned—Unless a clear case on the basis of clinching material which can be held to be conclusive in nature, is made out and that too within a reasonable time as provided in rules governing the service Court should not make a declaration on basis of material which made such claim only plausible—Court or Tribunal must be slow in granting an interim relief—Respondent joined as class IV employee on 2.1.1972 and on being informed that no superannuated on 30.9.1990, he filed writ that his date of birth was 1.9.1939 and the date 1.9.1930 recorded in service record was wrong—Claim was supported by school record—High Court allowed writ holding that State had failed to produce the service record—Appeal—High Court erred in holding that service book was not produced which infact had been produced and it indicated the date of birth to be 1.9.1930—Impugned judgment was liable to be set aside.
Held : 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 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. (Para 9)
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. (Paras 13 and 14)

Judgment

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.

2. 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.

3. 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 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.

4. 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.

5. There is no appearance on behalf of the respondent in spite of the service of notice.

6. 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

Click Here to Read the rest of this document

2005 Supreme(SC) 955

Cases Referred (9)