State of Haryana V/S Satish Kumar Mittal and another CIVIL APPEAL NO. 7415 OF 2010 September 7, 2010

Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7415 OF 2010
(ARISING OUT OF SPECIAL LEAVE PETITION NO. 2901 OF 2008)

State of Haryana Appellant
Versus

Satish Kumar Mittal and another Respondents

JUDGMENT



GOKHALE, J.

1. Leave granted.

2. This appeal seeks to challenge the order passed by the High

Court of Punjab and Haryana in Regular Second Appeal No.3013/2007

dated 18.9.2010 whereby the learned single judge has confirmed the

judgment of the Additional District Judge and that of the Civil Judge, Senior Division, whereby he had granted a decree in favour of the Ist respondent herein.
The short facts leading to this appeal are as follows:

3. Respondent No.1 joined the office of the Director of

Prosecution, Haryana, as an Assistant District Attorney on 2.4.1992. At that

time, he got the date of his birth recorded in the service book on the basis

of the Matriculation Certificate in which the date was mentioned as

25.3.1962. It is the case of the first respondent that there was a family

function in June 2001 where his relatives gathered, and wherein during the

discussion he came to know that his date of birth was actually 25.11.1962,

and that the one recorded in the matriculation certificate was erroneous.




4. The first respondent made a representation on 2.7.2001 for

correction of the date of birth, which was rejected by the communication

dated 24.9.2002 from the Superintendent of Jails and the Judicial and

Financial Commissioner (who is also the Principal Secretary to the

Administration of Judicial Department) addressed to the Director of

Prosecution, State of Haryana. The representation was rejected on the

basis of Finance Department's Notification dated 13.8.2001, which laid
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down that no application for correction in date of birth, submitted after two

years from entry into service, can be entertained.




5. The first respondent gave a notice under section 80 of the

Code of Civil Procedure (hereinafter referred to as the `CPC' for short) on

10.11.2005 and thereafter filed a suit on 16.10.2006 for a declaration that

the decision dated 24.9.2002 was bad in law. The second respondent

herein viz. Secretary, Board of School Education, Haryana, was joined as

second defendant in the suit though he was a proforma-defendant.




6. The Learned Addl. Civil Judge, Senior Division, who decided

the suit, being Civil Suit No.18 of 2006 took the view that the appellant was

giving a retrospective effect to the Notification dated 13.8.2001 and that

was not permissible. The Learned Civil Judge held that the suit was within

time and granted a decree that the order dated 24.9.2002 was illegal, null

and void and that the date of birth of the first respondent was 25.11.1962.




7. The appellant filed an appeal against this judgment and order

to the Court of the Additional District Judge, Karnal being Civil Appeal

No.66/2007 which came to be dismissed and so also the Regular Second
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Appeal No.3013/2007, which was filed against that order. The Learned

Single Judge dismissed the second appeal by a short order in view of the

concurrence of views of the courts below.




8. Being aggrieved by all these orders, the present appeal by

Special Leave has been filed. It is submitted on behalf of the appellant

that the first respondent joined as the Assistant District Attorney on

2.4.1992 and the date of birth given by him on the basis of the

matriculation certificate was recorded in his service book. Nine years later,

he has sought to correct the date of birth, allegedly on the basis of the

discussion at a family function and by pointing out the extracts of births of

his brothers and sisters (though in none of them, there is any name of the

child). Even after his representation was turned down on 24.9.2002 on the

basis of the Government Notification dated 13.8.2001, he took more than

three years to serve the notice under Section 80 of the CPC, which was

served on 10.11.2005 and the suit was filed almost one year thereafter on

16.10.2006. The appellant submitted that the action on part of the first

respondent was belated. It suffers from latches and the suit was also

barred by limitation. The Respondent No.1 on the other hand, defended

the impugned judgments as correctly rendered.
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9. It was submitted on behalf of the appellant that the Courts

below have erred in not accepting the appellant's submission on the basis of

the Notification dated 13.8.2001 issued by the Finance Department,

Government of Haryana, containing the amendments to the Punjab Finance

Rules framed under Article 283(2) of the Constitution of India. It is

submitted that the Courts have erred in treating this as a case of

retrospective application of the relevant rule. It is pointed out that prior to

the Notification dated 13.8.2001 also there was the governing rule 2.5 of

the Punjab Civil Services Rules 1994 which laid down that the date of birth

of the government employees, once recorded in the service book, cannot be

corrected except in case of a clerical error without previous order of the

government. The rule further provided that the date of birth/declaration of

age made at the time of entry into service shall be deemed to be conclusive

as against the government servant, unless he applies for correction of his

age within two years from the date of his entry into government service.

The relevant Rule contained in paragraph 1 of those rules

reads as follows:-

"ANNEXURE (A)

(Referred to in Rule 2.5 and Note 3 thereunder)

1. In regard to the date of birth a declaration of age made
at the time or for the purpose of entry into Government service
shall, as against the Government employee in question be
deemed to be conclusive. The employee already in the service
of the Government of Punjab on the date of coming into force
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of the Punjab Civil Services (First Amendment) Rules. Volume-
I, Part-I, 1994, may apply for the change of date of birth within
a period of two years from the coming into force of these rules
on the basis of confirmatory documentary evidence such as
Matriculation Certificate or Municipal Birth Certificate etc. No
request for the change of date of birth shall be entertained
after the expiry of the said period of two years. Government,
however, reserves the right to make a correction in the
recorded age of a Government employee at any time against
the interest of the Government employee when it is satisfied
that the age recorded in his service book or in the History of
service of a Gazetted Government employee is incorrect and
has been incorrectly recorded with the object that the
Government employee may derive some unfair advantage
therefrom."



10. This provision was later on amended and under the rules

amended on 20.12.2000, it was provided that if application is made beyond

two years, it must be considered on the recommendation of the

Administrative Department and the Chief Secretary only in consultation with

the Finance Department. It was entirely left to the discretion of the

government whether to entertain any such application. The principle

provision, which required that the employee must apply within two years,

remained unaltered. This rule amended on 20.12.2000 reads as follows:

"1. These rules may be called Punjab Financial Volume-I
(Haryana First Amendment) Rules, 2000.


2. In the Punjab Financial Rules, Volume-I, in Annexure
`A' referred to in Rule 7-3 and Note 3 thereunder,-


(I) For paragraph 1, the following paragraph
shall be substituted, namely:-
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1. In regard to the date of birth a declaration of age
made at the time of, or for the purpose of entry into Government
service, shall be against the Government employee in question,
be deemed to be conclusive unless he applied for correction of
his age as recorded within two years from the date of his entry
into Government service. Wherever, it is proposed to consider
the application of the employee for correction of his age within a
period of two years from the date of his entry into government
service, the same would be considered by the government in
consultation with the Chief Secretary to Government of Haryana.
In cases where such application has been made beyond the
stipulated period and is proposed to be accepted, the same shall
be considered on recommendations of the Administrative
Department and the Chief Secretary to Government of Haryana,
in consultation with the Finance Department, Government
however, reserves the right to make a correction in the recorded
age of the government employee at any time against the interest
of that government employee when it is satisfied that the age
recorded in his service book or in the history of services of a
government employee is incorrect and has been incorrectly
recorded with the object that the government employee may
derive some unfair advantage therefrom."


11. Subsequently, by the notification dated 13.8.2001 amending the

rules, it is once again made clear that unless the application is made within

two years, no change in the date of birth will be entertained. This new rule

1, as amended on 13.8.2001 reads as follows:

" 1. These rules may be called Punjab Financial Volume-I
(Haryana First Amendment) Rules, 2001.


2. In the Punjab Financial Rules, Volume-I, in Annexure
`A' referred to in Rule 7.3 and Note 3 thereunder:-


(i) for paragraph 1, the following paragraph shall be
substituted, namely:-
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1. In regard to the date of birth, a declaration of age
made at the time of, or for the purpose of entry into government
service, shall as against the government employee in question,
be deemed to be conclusive unless he applied for correction of
his age as recorded within two years from the date of his entry
into government service. No application submitted beyond the
stipulated period of two years for change in date of birth will be
entertained. Wherever the application for correction of his age is
submitted by the employee within a period of two years from the
date of his entry into government service, the same would be
considered by the government in consultation with the Chief
Secretary to Government of Haryana. The government, however,
reserves the right to make a correction in the recorded age of
government employee at any time against the interest of that
government employee when it is satisfied that the age recorded
in his service book or in the history of services of a government
employee is incorrect and has been incorrectly recorded with the
object that the government employee may derive some unfair
advantage therefrom."



12. Thus, as seen from the above position, the relevant rule

always required an application for correction of date of birth to be

submitted within two years from joining the service. The amended rule of

20.12.2000 made a slight modification that application filed after two years

could be considered which will be only on the recommendation of the

Administrative Department. This provision has now been removed after the

rule was amended on 13.8.2001.




13. The import of such a provision has been clarified by this court

from time to time. Thus, in paragraph 7 of the Secretary and
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Commissioner, Home Department vs. R.Kirubakaran [1994 (Suppl.

1) SCC 155] this Court held as follows:




" 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 Court has, thereafter stated that burden in such cases lies

on the applicant and noted that in many of such cases, the employees

approach the Court on the eve of retirement. The Courts and Tribunals
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must be slow in granting any interim relief in such cases. The same

principle has been reiterated in State of UP vs. Gulaichi [2003 (6) SCC

483]; State of Punjab vs. S C Chadha [2004 (3) SCC 394]; and State of

Gujarat vs. Vali Mohmed Dosabhai Sindhi [2006 (6) SCC 537].




14. As recorded above, it has been held time and again that the

application for correction of date of birth is also to be looked into from the

point of view of the concerned department and the employees engaged

therein. The other employees have expectations of promotion based on

seniority and suddenly if such change is permitted; it causes prejudice and

disturbance in the working of the department. It is, therefore, quite correct

for the State to insist that such application must be made within the time

provided in the rules, say, two years, as in the present case.




15. It is also seen that such applications are made very often,

almost at the end of the service of the employee or in any case, belatedly.

Whatever may be the reason, the fact remains that in the present case, the

application was made after some nine years of joining into service. Even

assuming that first respondent came to know in June 2001 that there was

an error in his date of birth entered in the matriculation certificate, as

claimed by him, he took more than three years to issue the notice under
1


Section 80 of the CPC and then to file the suit. Whether the suit was time

barred or not, the claim was in any case belated. It has to be filed within

the time provided or within a reasonable time and it is not to be entertained

merely on the basis of plausible material as held in Kirbukaran (supra).

As observed by this Court in State of UP vs. Shiv Narayan Upadhyaya

[2005 (6) SCC 49]:

"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."



16. In the circumstances in our view, the High Court as well as

the courts below clearly erred in entertaining the claim of Respondent No.1

for correction in his date of birth at a belated stage. In such a matter, we

are concerned with the correction in the date of birth for the purpose of

service record and not for any other purpose. The observation of this

Court in para 7 of the Union of India vs. Harnam Singh [1993 (2) SCC

162] in this behalf are quite apt.

"7. A Government servant, after entry into service,
acquires the right to continue in service till the age of
retirement, as fixed by the State in exercise of its powers
regulating conditions of service, unless the services are
dispensed with on other grounds contained in the relevant
service rules after following the procedure prescribed therein.
The date of birth entered in the service records of a civil
servant is, thus of utmost importance for the reason that the
1

right to continue in service stands decided by its entry in the
service record. 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. In the absence of any
provision in the rules for correction of date of birth, the
general principle of refusing relief on grounds of laches or
stale claims, is generally applied by the courts and tribunals.
It is nonetheless competent for the Government to fix a time-
limit, in the service rules, after which no application for
correction of date of birth of a Government servant can be
entertained. A Government servant who makes an application
for correction of date of birth beyond the time, so fixed,
therefore, 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. The law of
limitation may operate harshly but it has to be applied with all
its rigour and the courts or tribunals cannot come to the aid of
those who sleep over their rights and allow the period of
limitation to expire. Unless altered, his date of birth as
recorded would determine his date of superannuation even if
it amounts to abridging his right to continue in service on the
basis of his actual age. ................."



17. This being so, the courts should not have entertained the

claim of the first respondent belatedly and beyond the period provided in

the rules. The rules, in the instant case, all throughout required such

application to be made within two years. Therefore, the courts clearly erred

in finding fault with the appellant for allegedly applying the Notification of

13.8.2001 retrospectively which was not the case over here.
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18. In the circumstances, we allow this appeal and set aside the

orders passed by the High Court as well as by the courts below. The suit

filed by the first respondent will stand dismissed.




........................................J.
(R.V. Raveendran )



.........................................J.
(H.L. Gokhale )

New Delhi

Dated : September 7, 2010