STATE OF U.P. AND ORS.versusSMT. GULAICHI

A                             STATE OF U.P. AND ORS.
                                           v.
                                   SMT. GULAICHI

                                    JULY 25, 2003

B               [DORAJSWAMY RAJU AND ARJJIT PASA YAT, JJ.]


          Service Laws:

          U.P. Recruitment of Service (Determination of Date of Birth) (First
C Amendment) Rules, 1980-Rule 2--Claim for correction of date of birth few
    days before date of superannuation-Declaratory suit filed-Dismissed by
    trial court-Allowed by First Appellate Court and High Court-On appeal,
    Held: In view of Rule 2 it is not permissible to correct the date of birth-First
    Appellate Court as well as High Court lost sight of statutory provision, acted
D   on irrelevant, inadmissible materials and ignored relevant materials-Thus
    the order of trial court restored-High Court's order set aside.

          Constitution of India, 1950--Article 136-/nterference-When called
    for-Held: When courts below lost sight of statutory provision, acted on
    irrelevant and inadmissible materials, ignoring relevant materials, interference
E   is permissible.

           Respondent joined services under the appellant-State and in the service
    book her date of birth was recorded as 31. 7.1929. Few days before the date of
    retirement she claimed her date of birth to be 31.7.1939. Officer concerned
    carried out the correction in her service book. Respondent then filed a rnit
F   for a declaration that her date of birth was 31.7.1939 and by mistake the
    employee of the department wrongly recorded it as 31.7.1929. Trial Court
    dismissed the suit. First Appellate Court allowed the appeal and decreed the
    suit to the effect that the date of birth of the respondent was 31. 7.1939. High
    Court upheld the order. Hence the present appeal.

G          Appellants contended that the First Appellate Court as well as the High
    Court considered irrelevant materials and left out the relevant materials for
    correcting the date of birth; the U.P. Recruitment of Service (Determination
    of Date of Birth) (First Amendment) Rules, 1980 clearly delineate the area
    of permissible correction; that there is no scope for effecting any change,
H   that too just a few days before the date of superannuation; and that the person
                                          762
                             STATEv.GULAICHI                               763

who carried out the corrections had no authority in law to do so.                  A
      Respondent-employee contended that findings of fact have been recorded
relating to the correct date of birth; and that the First Appellate Court as
well as the High Court considering the relevant materials rightly and in
accordance with law decided the issue in favour of respondent and thus, no
interference was called for.                                                       B
     Allowing the appeal, the Court

      HELD: 1.1. 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. Any such direction for correction of the date of C
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. There are cases
when a person accepts appointment keeping in view the date of retirement of
his immediate senior. This is an important and relevant aspect which should D
be looked into by the courts 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 and that too within a time fixed and in accordance with
the procedure prescribed in the rules governing the service, the Court or the
Tribunal should not issue a direction or make a declaratism on the basis of E
materials which make such claim only plausible. If no rule or order has been
framed or made, then such application must be within a reasonable time.
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. In many cases,
public servants approach the Court on the eve of their retirement, questioning F
the correctness of date of birth. The court or the Tribunal must be slow in
granting an interim relief or continuation in service, unless prima facie
evidence of unimpeachable character is produced because if the public servant
succeeds, he can always be compensated, but if he fails, he would have enjoyed
 undeserved benefit of extended service and thereby causing injustice to his
 immediatejunior.1768-C-F, G-H; 769-A-BJ                                       G
      1.2. In the instant case, in view of Rule 2 of the U.P. Recruitment of
Service (Determination of Date of Birth) (First Amendment) Rules, 1980, it
was not permissible to effect any change in the date of birth. Additionally, the
First Appellate Court and the High Court lo~t sight of the fact that the person
                                                                                   H
    764                    SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A . who endorsed changes was not authorized to do so. In the original service
    book the entry 31.7.1929 appears to have been made simultaneously by one
    and the same person at the time when other entries were made in FR Form
    No. 13. Respondent has herself signed the page at serial No.8, whereas the
    entry relating to date of birth is at serial No. 5. Though respondent submitted
B   that there was no original entry as in 1965 and 1984 there were no entries
    in the service book, the documents annexed to prove the said assertion do not
    inspire confidence. In fact the existence of these documents is shrouded in
    mystery. Before the Trial Court as well as the First Appellate Court a defiinite
    stand was taken by the respondent that due to mistake of an employee/officer
    of the department, the date of birth was recorded as 31. 7.1929 instead of
C   31.7.1939 in her service book. If the stand of respondent that there was no
    entry till 1984 is correct, it could not be explained as to wilen entry was made
    and by whose mistake it was wrongly recorded. The stand presently taken
    runs counter to the pleadings and stands before trial court and first appellate
    court. Therefore, the order of the High Court to the effect that the date of
D   birth of respondent was 31.7.1939 is set aside and ·the date of birth of
    respondent has to be taken for all purposes to be 31.7.1929.
                                                              (769-E-H; 770-A, 8, DJ

         State ofAssam v. Daksha Prasad Deka, (1970( 3 SCC 624; Government
    of Andhra Pradesh v. M Hayagreev Sarma, (1990) 2 SCC 682; Executive
E   Engineer, Bhadrak (R &B) Division, Orissa and Ors. v. Rangadhar Ma/lik,
    (1993) Supp. I SCC 763; Union of India v. Harnam Singh, (1993) 2 SCC
    162; The Secretary and Commissioner, Home Department and Ors. v. R.
    Kirubakaran, JT (1993) 5 SC 404; State a/Tamil Nadu v. TV Venugopa/an,
    (1994) 6 SCC 302 and State of Orissa and Ors. v. Ramanath Patnaik, (19971
    5 sec 181, referred to.
F
          2. Usually, no interference is called for when findings of fact are
    recorded by the Trial/Appellate Court and the High Court, more so, when the
    issue is decided in Second Appeal. But where the courts below lose sight of
    statutory provisions or act on irrelevant or inadmissible materials, and ignore
    relevant materials, interference is not impermissible. (766-C-D)
G
          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5207 of2003.

         From the Judgment and Order dated 14.5.2002 of the Allahabad High
    Court in S.A. No. 314 of2002.

H         R.C. Verma, Mukesh Verma and Manish Shanker for the Appellants.
                 STATE v. GULAICHI [ARIJIT PASA YAT.J.]                 765

     Vinai Singh and R.D. Upadhyay for the Respondent.                        A
     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. Leave granted.

      Request for correcting the date of birth recorded, made a few days B
before the date of superannuation as per original records, having been accepted
by the First Appellate Court and confirmed by the impugned judgment oft he
High Court, this appeal has been filed by the State ofU.P. and Chief Medical
Officers, Azamgarh and Mau.

       The respondent joined services under the State on 6th July, 1959. ln the C
service book her date of birth was recorded to be 31.7.1929. Consequently,
she was to retire on 31.7.1987. About three weeks before the date of retirement
i.e. on 7.7.1987 she approached the acting Chief Medical Officer, Azamgarh
claiming her date of birth to be 31.7.1939. The concerned official made the
correction in her service book. On that basis, she claimed that she was not D
to retire on 31.7.1987. A suit was filed by the respondent-plaintiff for a
declaration that her date of birth is 31.7.1939, but by mistake of an officer/
employee of the department it was wrongly recorded as 31.7.1929. The suit
was essentially for a declaration that her date of birth to be 31.7.1939, on
consideration of the materials brought on record. The stand was resisted by
State of Uttar Pradesh. Analysing the materials on record, learned 7th Addi. E
Munsif, Azamgarh dismissed the suit. But in appeal, learned 7th Additional
District Judge, Azamgarh allowed the appeal and decreed the suit to the effect
that the date of birth of plaintiff (respondent herein) to be 31.7 .1939 and that
she was entitled to all service benefits on that basis.

     The State and the two officials preferred Second Appeal before the        F
Allahabad High Court which declined to interfere with the order passed by
the First Appellate Court.

       Learned counsel for the appellants submitted that the law relating to
change of date of birth is fairly well settled and the First Appellate Court as
well as the High Court fell in grave error by making the declaration to the G
effect that the date of birth of respondent was 31.7. I 939. Several materials of
unimpeachable character were Jost sight of and/or not considered, and
erroneous inferences were drawn which no reasonable person would arrive
at. Relevant materials were left out of consideration and irrelevant materials
weighed with the First Appellate Court as well as the High Court for deciding H
    766                      SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A the issue in favour of responden.t. Rule 2 of U.P. Recruitment of Service
    (Detennination of Date of Birth) Rules, 1974 (in short the 'Rules') and U.P.
    Recruitment of Service (Detennination of Date of Birth) (First Amendment)
    Rules, 1980 (in short the 'Amendment Rules') clearly delineate the area of
    permissible correction, in view of what has been stated in Rule 2. There is no
B   scope for effecting any change, that too just a few days before the date of
    superannuation. The person who carried out the corrections had no authority
    in law to do so in the teeth of the rule referred to above.

           In response, learned counsel for the respondent submitted that findings
    of fact have been recorded relating to the correct date of birth, and on taking
C   into consideration the relevant materials the First Appellate Court as well as
    the High Court rightly and in accordance with law decided the issue in favour
    of respondent-employee and no interference is called for.

          Usually, no interference is called for when findings of fact are recorded
    by the Trial/Appellate Court and the High Court, more so, when the issue is
D   decided in Second Appeal. But where the Courts below lose sight of statutory
    provisions or act on irrelevant or inadmissible materials, and ignore relevant
    materials, interference is not impermissible.

          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.
E   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, 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
F   raise a dispute about their 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 correct or not.

          Most of the States have framed statutory rules or in absence thereof
G   issued administrative instructions as to how a claim made by a public servant
    in respect of correction of his date of birth in the service record is to be dealt
    with and what procedure is to be followed. In many such rules a period has
    been prescribed within which if any public servant makes any grievance in
    respect of error in the recording of his date of birth, the application for that
    purpose can be entertained. The sole object of such rules being that any such
H   claim regarding correction, of the date of birth should not be made or entertained
                 STATE v. GULAICHI (ARIJITPASA VAT, .I.]               767
after decades, especially on the eve of superannuation of such public servant. A
In the case of State of Assam v. Daksha Prasad Deka, [1970] 3 SCC 624, this
Court said that the date of the compulsory retirement "must in our judgment,
be determined on the basis of the service record and not on what the
respondent claimed to be his date of birth, unless the service record is first
corrected consistently with the appropriate procedure." In the case of B
Government ofAndhra Pradesh v. M Hayagreev Sarma, [ 1990] 2 SCC 682 the
A.P. Public Employment (Recording and Alteration of Date of Birth) Rules,
1984 were considered . The public servant concerned had claimed correction
of his date of birth with reference to the births and deaths register maintained
under the Births, Deaths and Marriages Registration Act, 1886. The Andhra
Pradesh Administrative Tribunal corrected the date of birth as claimed by the C
petitioner before the Tribunal, in view of the entry in the births and deaths
register ignoring the rules framed by the State Government referred to above.
It was inter alia observed by this Court:

       "The object underlying Rule 4 is to avoid repeated applications by a
       government employee for the correction of his date of birth and with D
       that end in view it provides that a government servant whose date of
       birth may have been recorded in the service register in accordance
       with the rules applicable to him and if that entry had become final
       under the rules prior to the commencement of 1984 Rules, he will not
       be entitled for alteration of his date of birth."
                                                                              E
In Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v
Rangadhar Mallik, [1993] Supp .. I SCC 763, Rule 65 of the Orissa General
Finance Rules, was examined which provides that representation made for
correction of date of birth near about the time of superannuation shall not be
entertained. The respondent in that case was appointed on November 16, F
1968. On September 9, 1986, for the first time, he made a representation for
changing his date of birth in his service register. The Tribunal issued a
direction as sought for by the respondent. This Court set aside the Order of
the Tribunal saying that the claim of the respondent that his date of birth was
November 27, 1938 instead of November 27, 1928 should not have been
accepted on basis of the documents produced in support of the said claim, G
because the date of birth was recorded as per document produced by the said
respondent at the time of his appointment and he had also put his signature
in the service roll accepting his date of birth as November 27, 1928. The said
respondent did not take any step nor made any representation for correcting
his date of birth till September 9, 1986. In case of Union of India v. Harnam H
    768                     SUPREME COURT REPORTS (2003] SUPP. 1 S.C.R.

A Singh, [1993] 2 sec 162 the position in iaw was again re··iterated and it was
    observed:

            "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
B           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."

C 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
D 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 the
  promotion for ever. Cases are not unknown when a person accepts
  appointment keeping in view the date of retirement of his immediate senior.
E 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 materials which can be held to be conclusive in nature,
  is made out by the respondent and that too within a reasonable time as
F 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,
G 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
H question arises, the onus is on the applicant, to prove about the wrong
                  STATEv. GULAICHI [ARIJITPASAYAT.J.]                    769
recording of his date of birth. in his service book. In many cases it is a part A
of the strategy on the part of such public servants to approach the Court or
the Tribunal on the eve of their retirement, questioning the correctness of the
entries in resptct of their date of birth in the service books. By this process,
it has come to the notice of this Courtthat in many cases, even if ultimately
their applications are dismissed, by virtue of interim orders, they continue for B
months, after the date of superannuation. The Court or the Tribunal must,
therefore, be slow in granting an interim relief or continuation in service,
unless prima facie evidence of unimpeachable character is produced because
ifthe public servant succeeds, he can always be compensated, but ifhe fails,
he would have enjoyed undeserved benefit of extended service and thereby
caused injustice to his immediate junior.                                      c
      The position was succinctly stated by this Court in the above terms in
The Secretary and Commissioner Home Department and Ors. v. R.
Kirubakaran, JT (1993) 5 SC 404.

      As observed by this Court in State of Tamil Nadu v. r V. Venugopalan, D
[1994) 6 SCC 302 and State of Orissa and Ors. v. Ramanath Patnaik, [1997)
5 SCC 181 when the entry was made in the service record and when the
employee was in service he did not make any attempt to have the service
record corrected, any amount of evidence produced subsequently is of no
consequence. The view expressed in R. Kirubakaran 's case (supra) was
adopted.                                                                    E
      In the instant case the Rules and Amendment Rules referred to above
clearly indicate the permissible area for correction of date of birth. In view of
the specific provisions made, it was not permissible to effect any change.
Additionally, the First Appellate Court and the High Court seem to have lost F
sight of the fact that the person who endorsed changes was not authorized
to do so. Original service book was produced before us by learned counsel
for the appellants. Though learned counsel for the respondent submitted that
we should not look it, for the purpose of arriving at the truth, we overruled
the objection and looked at the original document, which undisputedly was
exhibited during trial. The entry i.e. 31.7 .1929 appears to have been made G
simultaneously by one and the same person at the time when other entries
were made in FR Form No.13. Respondent has herself signed the page at serial
No.8, whereas the entry relating to date of birth is at serial No.5.

      Though learned counsel for the respondent submitted that there was no
                                                                                H
    770                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A original entry as in 1965 and 1984 there were no entries in the service book,
    the documents annexed to prove the said assertion do not inspire confidence.
    In fact the existence of these docmm:nts is shrouded in mystery. It has to be
    noted that before the Trial Court as well as the First Appellate Court a definite
    stand was taken by the respondent that due to mistake of an employee/officer
B   of the department, the date of birth was recorded as 31.7 .1929 instead of
    31. 7.1939 in her service book. If the stand of respondent that there was no
    entry till 1984 is correct, it could not be explained as to when entry was made
    and by whose mistake it was wrongly recorded. The stand presently taken
    runs counter to the pleadings and stands before trial Court and first appellate
    Court.
c          Above being the factual and legal position, the conclusion is inevitable
    that the First Appellate Court and the High Court were -not justified in their
    conclusions to the effect that the date of birth of respondent was 31.7.1939.
    The Trial Court was correct in its analysis by holding that the date of birth
    is 31.7.1929.
D
          The order of the High Court is set aside. The date of birth of respondent
    has to be taken for all purposes to be 31.7.1929 and not 31.7.1939 as claimed
    by her. The appeal is allowed to the extent indicated above. There will be no
    order as to costs.

    N.J.                                                           Appeal allowed.