HIGH
COURT OF JUDICATURE AT ALLAHABAD
Chief Justice's Court AFR
Case :- SPECIAL APPEAL DEFECTIVE No. - 160 of 2016
Appellant :- State Of U.P. And 3 Ors.
Respondent :- Tej Ram Kashyap
Counsel for Appellant :- Vivek Shandilya
Counsel for Respondent :- Abhay Raj Singh
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
(Per : Dr D Y Chandrachud, CJ)
This special appeal has arisen from a judgment and order of the learned Single
Judge dated 2 December 2015. The learned Single Judge has allowed the writ
petition filed by the respondent and has directed the correction of his date of
birth in the service record of the Irrigation Department of the State
Government as 15 February 1959 in place of 15 February 1956.
The learned Single Judge has allowed the writ petition at the stage of
preliminary hearing, without calling for a counter affidavit from the State on
the basis that in view of the "undisputed facts and the documents on
record" the petition would be decided without the defence of the State
being placed on the record.
The respondent was appointed as a helper in the Irrigation Department on 1
November 1978. The application submitted by the respondent for appointment
indicates that he was 22 years of age and had failed at the High School
examination. The age of the respondent was entered in his service book as 15
February 1956. The date of entry in the service book is 17 February 1984 and
bears the thumb impression of the respondent together with his signature. On 22
June 2004, the respondent submitted an application to the effect that his date
of birth has been wrongly recorded as 15 February 1956 instead and in place of
15 February 1959. In support thereof, the respondent relied upon a certificate
issued by the Principal of the Rajkiya Inter College, Bareilly dated 29 March
1990 indicating that the date of birth of the respondent in the records of the
institution is 15 February 1959. The certificate indicates that the respondent
had appeared at the High School examination in 1978 which he cleared but the
institution has still not received the High School certificate from the
Secondary Education Board.
The learned Single Judge while allowing the writ petition has relied upon the
circumstance that the identity card of the respondent issued by the Irrigation
Department mentions his date of birth as 15 February 1959 and that the High
School certificate which was produced by the respondent before the Court
indicated the date of birth as relied upon by the respondent.
The learned standing counsel has urged that at the time of preparation of the
service book, the respondent had duly signed the entry which indicated that his
date of birth was recorded as 15 February 1956. The learned Single Judge
rejected the submission by holding that the respondent is still in service and
has been agitating his claim for correction of his date of birth since 2004.
For these reasons, the learned Single Judge allowed the writ petition and
directed the correction of the date of birth from 15 February 1956 to 15
February 1959.
At the outset it would be material to refer to the provisions of the U.P.
Recruitment to Services (Determination of Date of Birth) Rules, 19741.
Rule 2 provides as follows:
"2[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 to his service, including
eligibility for promotion, superannuation, premature retirement or retirement
benefits, and no application or representation shall be entertained for
correction of such date or age in any circumstances whatsoever.]"
Rule 2 indicates that the date of birth which has been recorded in the High
School certificate or in respect of an equivalent examination, shall be deemed
to be the correct date of birth for all purposes in relation to his service.
Where a government servant has not passed the High School or equivalent
examination as aforesaid, the date of birth or age recorded in the service book
at the time of his entry into government service, shall be deemed to be the
correct date of birth. Rule 2 further provides that where a Government servant
has passed the High School 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 to his service.
In the present case, the application submitted by the respondent when he
entered upon service indicates that he had disclosed his age to be as 22 years
and that he had failed in the High School examination 'High School Anuttirna'.
The respondent joined services on 1 November 1978. The case of the respondent
himself is that he had initially failed in the High School examination and that
he appeared in the supplementary examination which he cleared. Now, when the
respondent submitted an application on 22 June 2004, the first thing that needs
to be noticed is that it was addressed to the competent authority in the
Irrigation Department nearly twenty six years after he had joined the service.
In the meantime, as we have noted, the service book of the respondent reflected
his date of birth as 15 February 1956 and it bears both the signature and thumb
imprint of the respondent. Hence, the respondent was aware of the fact that his
date of birth has been entered as 15 February 1956. This also tallies with his
disclosure in his application seeking employment which indicates that his age
was 22 years in 1978. This application, it may be noted, was in terms of the
form prescribed under the standing orders applicable under the Industrial
Employment (Standing Orders) Act. Even when the respondent submitted his
application for correction of the date of birth on 22 June 2004, he relied upon
a certificate of the Principal of the Inter College dated 29 March 1990 which,
while stating that the respondent had passed the High School examination in
1978 and that his date of birth in the records of the institution was 15
February 1959, stated that the institution had not received a copy of the High
School certificate from the Secondary Education Department.
The case can be considered from either of two stand points. Firstly, as a
general principle, it is well settled that an application for correction of the
date of birth in the service record, made belatedly and a long time after the
employee had entered into service, should not be entertained. This principle
must apply to the facts of the present case, where as we have noted, the
respondent himself declared his age as 22 years when he sought employment in
1978 and his service book was completed in 1984, duly endorsed by the
respondent indicating that his date of birth was 15 February 1956. Twenty six
years thereafter, the respondent sought correction of his date of birth. His
submission that he had submitted his High School certificate when he joined
service is clearly belied by his own statement made in his application for
employment that he failed in the High School examination at that stage. Equally
significant in the present case, is the principle which is contained in Rule 2
of the statutory rules which have been framed in exercise of powers conferred
by Article 309 of the Constitution. Rule 2 provides that in the first instance
a 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 shall be deemed to be his correct date of
birth for all purposes in relation to service. Where a Government servant has not
passed the High School examination or an equivalent examination, the date of
birth or age recorded in the service book at the time of entry in the service
is to be taken for all purposes as the correct date of birth. Rule 2 also
provides that in a situation where an employee has passed the High School
examination after joining the service, the date of birth entered at the time of
his entry in service or age recorded in the service book at the time of his
entry into Government service shall be treated as the correct date of birth.
In this background, both on facts as we have indicated and having due regard to
the provisions of law noted above, the learned Single Judge was manifestly in
error in entertaining the writ petition and in directing the grant of relief
for correction in the date of birth of the respondent from 15 February 1956 to
15 February 1959. The writ petition ought not to have been entertained in the
first phase having been filed in 2015, for seeking correction in the date of
birth. When the writ petition was filed, the respondent was virtually on the
eve of his retirement. A long time after the respondent had entered into
service, a correction in the date of birth in the service record ought not to
have been entertained.
We, accordingly, allow the special appeal and set aside the impugned order and
judgment of the learned Single Judge dated 2 December 2015. In consequence, the
writ petition filed by the respondent shall stand dismissed.
There shall be no order as to costs.
Order Date :- 29.2.2016
RK
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)
C.M. Delay Condonation Application No.51714 of 2016
Case :- SPECIAL APPEAL DEFECTIVE No. - 160 of 2016
***
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
The delay of forty four days in filing the special appeal is condoned since
sufficient case has been shown in the affidavit filed in support of the delay
condonation application.
The application is, accordingly, disposed of.
Order Date :- 29.2.2016
RK
(Yashwant Varma, J) (Dr D Y Chandrachud, CJ)
