STATE OF HARYANAversusSATISH KUMAR MITTAL AND ANOTHER

                    [2010] 10 S.C.R. 1009


                    STATE OF HARYANA                                 A
                                v.
          SATISH KUMAR MITTAL AND ANOTHER
             (Civil Appeal No. 7415 OF 2010)
                    SEPTEMBER 7, 2010
                                                                     B
     [R.V. RAVEENDRAN AND H.L. GOKHALE, JJ.]

     Service Law:

     Date of birth - Correction of - Representation made 9           c
years after joining the service - Suit filed five years thereafter
- HELD: Application for change in date of birth causes
prejudice and disturbance in the working of the Department
- Courts below should not have entertained the claim beyond
the period provided in the Rules, which in the instant case,         0
required the application to be made within two years -
Whether the suit was time barred or not, the claim was, in any
case, belated - Punjab Civil Services Rules, 1994 - Delay/
Lach es.

     The date of birth of respondent no. 1 at the time of            E
his joining the Government service on 2.4.1992 was
recorded in his service book as 25.3.1962 on the basis
of his matriculation certificate. On 2.7.2001 he gave a
representation for correction of his date of birth as
25.11.1962. By order dated 24.9.2002 his representation              F
was rejected on the ground that no application for
correction in date of birth submitted after two years from
entry into service could be entertained. Respondent no.
1 gave a notice u/s 80 CPC on 10.11.2005, and thereafter
filed a suit on 16.10.2006 for a declaration that the order          G
dated 24.9.2002 was bad in law. The suit was decreed.
The decree was affirmed by the first appellate court as
also by the High Court in second appeal. Aggrieved, the
State Government filed the appeal.
                            1009                                     H
    1010   SUPREME COURT REPORTS            [2010) 10 S.C.R.


A      Allowing the appeal, the Court

       HELD: 1.1 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
8 rule of 20.12.2000 made a slight modification that the
  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. [para
C 12] [1017-H; 1018-A-B]

       1.2 It has been held time and again that the
  application for correction of date of birth should not be
  dealt with keeping in view only the public servant
  concerned, but it is also to be looked into from the point
D of view of the 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
E 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. [para 14] [1019-D-E]

       Secretary and Commissioner, Home Department vs. R.
F Kirubakaran 1993 ( 2 ) Suppl. SCR 376 =1994 Suppl. (1)
  SCC 155; State of UP vs. Gulaichi 2003 (1 ) Suppl.
   SCR 762 = 2003 (6) SCC 483; State of Punjab vs. S C
  Chadha 2004 (2) SCR 216 = 2004 (3) sec 394; and State
  of Gujarat vs. Vali Mohmed Dosabhai Sindhi 2006 (3 )
   Suppl. SCR 685 = 2006 (6) sec 537 - relied on.
G
       1.3 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. In the instant case,
  the application was made after some nine years of
H
  STATE OF HARYANA v. SATISH KUMAR MITTAL 1011
                 AND ANR.

entering into service. Even assuming that respondent no. A
1 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 u/s 80 CPC and then to file the suit. Whether
the suit was time barred or not, the claim was in any case B
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. [para 15] [1019-F-H;
1020-A]

   State of UP vs. Shiv Narayan Upadhyay 2005 (1) Suppl. C
SCR 847 = 2005 (6) sec 49 - relied on.

    1.4 In the circumstances, 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 D
belated stage. 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 E
the case over here. [para 16-17] [1020-C-D; 1021-F]

    Union of India vs. Hamam Singh 1993 (1) SCR 86~:::
1993 (2) sec 162 - referred to.

                    Case Law Reference:                     F
    1993 (2) Suppl. SCR376      relied on        para 13
    2003 (1) Suppl. SCR762      relied on        para 13
    2004 (2) SCR 216            relied on        para 13
                                                            G
    2006 (3) Suppl. SCR685      relied on        para 13
    2005 (1) Suppl. SCR847      relied on        para 15
    1993 (1) SCR 862            referred to      para 16
                                                            H
    1012     SUPREME COURT REPORTS               [2010] 10 S.C.R.


A       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7415 of 2010.

        From the Judgment & Order dated 18.09.2007 of the High
    Court of Punjab & Haryana at Chandigarh in Regular Second
    Appeal No. 3013 of 2007.
8
       Manjit Singh, Sukhda Pritam, Prashant Shukla, Kamal
    Mohan Gupta for the Appellant.

       Manoj Swarup, Ankit Swarup, Devesh KumarTripathi, Ajay
c   Kumar, for the Respondents.

         The Judgment of the Court was delivered by

        GOKHALE, J. 1. Leave granted.

D       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
E   had granted a decree in favour of the 1st 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
F   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
G   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
H
   STATE OF HARYANA v. SATISH KUMAR M.ITTAL 1013
          AND ANR. [H.L. GOKHALE, J.]

communication dated 24.9.2002 from the Superintendent of           A
Jails and the Judicial and Finan.cial 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      B
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        C
'CPC' for ~hort) 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 h~rein viz. Secretary,
Board of School Education, Haryana, was joined as second
defendant in the suit though he was a proforma-defendant.          D

     6. The Learned Addi. 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     E
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.
                                                                   F
      7. The appellant filed an appeal against this judgment and
order to the Court of the Additional District Judge, Kamal being
Civil Appeal No.66/2007 which came to be dismissed and so
also the Regular Second 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       G
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    H
    1014     SUPREME COURT REPORTS                [2010) 10 S.C.R.


A 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
B 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
c 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.
D       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
E 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
F 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
G 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 servi.ce.

        The relevant Rule contained in paragraph 1 of those rules
    reads as follows:-
H
  STATE OF HARYANA v. SATISH KUMAR MITIAL                    1015
         AND ANR. [H.L. GOKHALE, J.]

                          "ANNEXURE (A)                               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             B
      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 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       C
      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.   D
      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         E
      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                  F
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             G
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             H
        1016    SUPREME COURT REPORTS                [2010] 10 S.C.R.


    A       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,-
    B       (I)   For paragraph 1, the following paragraph shall be
            substituted, namely:-

                   1. In regard to the date of birth a declaration of age
            made at the time of, or for the purpose of entry into
    c       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
    D       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
    E
            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
    F       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 beef! incorrectly recorded with the object
    G       that the government remployee may derive some unfair
            advantage therefrom,"'

o          11. Subsequently, by the notification dated 13.8.2001
      amending the rules, it is once again made clear that unless the
    H application is made within two years, no change in the date of
   STATE OF HARYANA v. SATISH KUMAR MITTAL                   1017
          AND ANR. [H.L. GOKHALE, J.]

birth will be entertained. This new rule 1, as amended on             A
13.8.2001 reads as follows:
          1. These rules may be called Punjab Financial
     Volume-/ (Haryana First Amendment) Rules, 2001.

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

     (i)   for paragraph 1, the following paragraph shall be
     substituted, namely:-                                            c
           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
                                                                      0
     he applied for correction of his age as recorded within two
     years from the date pf 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           E
     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              F
     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         G
     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
                                                                      H
        1018     SUPREME COURT REPORTS                [2010] 10 S.GfR.


    A   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 Adm.inistrative
        Department. This provision has now been removed after 'the
        rule was amended on 13.8.2001.
    B
              13. The import of such a provision has been clarified by
        this court from time to time. Thus, in paragraph 7 of the
I       Secretary and Commissioner, Home Department vs.
        R.Kirubakaran [1994 (Suppl. 1) SCC 155] this Court held as
        follows:
    c
             " 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
    D       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
    E       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
    F       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
    G
            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
    H       claim for correction of date of birth has been made in
   STATE OF HARYANA v. SATISH KUMAR MITIAL                  1019
          AND ANR. [H.L. GOKHALE, J.]

    accordance with the procedure prescribed, and within the         A
    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."
                                                                     B
      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 must be slow in granting any interim relief
in such cases. The same principle has been reiterated in State
of UP vs. Gu/aichi [2003 (6) SCC 483]; State of Punjab vs. S         C
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   o
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    E
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        F
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           G
certificate, as claimed by him, he took more than three years
to issue the notice under 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             H
     1020     SUPREME COURT REPORTS                 [2010] 10 S.C.R.


,A   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
8         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."
c
           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
o    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. Hamam Singh (1993 (2) SCC 162]
     in this behalf are quite apt.

         "7. A Government servant, after entry into service, acquires
E        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
F        date of birth entered in the service records of a civil servant
         is, thus of utmost importance for the reason that the 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,
G        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
H        prescribed for seeking correction of date of birth, the
  STATE OF HARYANA v. SATISH KUMAR MITTAL                      1021
         AND ANR. [H.L. GOKHALE, J.]

     Government servant must do so without any unreasonable             A
     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           B
     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      c
     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           0
     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 .................. "
                                                                        E
     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           F
appellant for allegedly applying the Notification of 13.8.2001
retrospectively which was not the case over here.

     18. In the circumstances, we allow this appeal and set
aside the orders passed by the High Court as well as by the             G
courts below. The suit filed by the first respondent will stand
dismissed.

R.P.                                              Appeal allowed.