The order passed by single bench of high court of judicature at Allahabad was set aside by division bench

 

The order passed by single bench of high court of judicature at Allahabad was set aside by the division bench of High court of judicature at Allahabad headed by chief justice of High court.

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) 

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