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CASE LAWS RELATED TO CORRECTION OF DATE OF BIRTH

State of T.N. vs. T.V. Venugopalan, (1994) 6 SCC 302, In this case, Court held that the rule provided that an application for alteration of recorded date of birth would be entertained only if made within five years after entering the service. This Court held that an employee already in service at the time of enforcement of such rule should make the application for correction within five years from the date of enforcement of the rule, otherwise he would lose his right to make such an application and the Government servant would not be permitted to challenge the entry at the fag end of his service.

Executive Engineer, Bhadrak (R&B) Division, Orissa and Others vs. Rangadhar Mallik, 1993 Supp (1) SCC 763. In this case, Court was considering Rule 65 of the Orissa General Finance Rules stipulating that representation for correction of date of birth made near about the time of superannuation shall not be admitted. This Court held that the representation for correcting the date of birth made by respondent 18 years after is not maintainable in law since the entry regarding date of birth made in the service record was on the basis of the horoscope produced by the employee himself and after obtaining his signature.

Government of Andhra Pradesh and Another vs. M. Hayagreev Sarma, (1990) 2 SCC 682. A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 was under consideration in this case by the Court. The date of birth of the employee was recorded in the service book on the basis of school certificate at the time of entry into service. The employee's application for alteration in the date of birth so recorded was finally rejected prior to coming into force of the rules. A subsequent claim was made by the employee for alteration after commencement of the rules. This Court held that the subsequent claim for alteration after the commencement of the rules even on the basis of the extracts of entry contained in births and deaths register maintained under Births, Deaths and Marriages Registration Act, 1886 was not open.

Union of India vs. Harnam Singh, (1993) 2 SCC 162. In this case, there was a delay of five years in seeking for alteration prescribed in Note 5 to FR 56(m) as substituted in 1979. This Court held that those already in service prior to 1979, for a period of more than five years, obliged to seek alteration within the maximum period of five years from the date of coming into force of amended note 5 in 1979. Alteration sought by the employee in 1991, 35 years after his induction into the service during which period he had several occasions to see the service book to raise any objection regarding his date of birth cannot be allowed in view of unexplained and inordinate delay.

Burn Standard Co. Ltd. and Others vs. Dinabandhu Majumdar and Another, AIR 1995 SC 1499. "Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employers as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non- raising of an objection in the matter by the employee, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court."

In The Secretary & Commissioner Home Department & Ors. Vs. R. Kirubakaran, JT 1993 (5) SC 404, Court held : "An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. 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 the promotion forever. 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 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 and before any such direction is issued, the Court 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 time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book. .. As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal."

Supreme Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 , at page 475 had held that the service record cannot be changed just a few years before the retirement or at the fag end of his retirement. The Apex Court had held as under : "......It is thus seen from the above quoted judgments that this Court has consistently taken the view that correction in entries made in government records on the basis of which the government servant got the service cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement."

The Supreme Court had also held in Union of India v. Harnam Singh, (1993) 2 SCC 162 that the alteration sought by an employee after 35 years of his induction into service during which he had several occasions to see the service book cannot be allowed.

In the case of State of Orissa and Ors. v. Ramnath Patnaik, AIR 1997 Supreme Court 2452, the Supreme Court has observed in Para 4. "When entry was made in service record and when he was in service, he did not make any attempt to have the service record corrected, therefore, any amount of evidence produced subsequently would be of no avail..." The Supreme Court has held that "an employee cannot be permitted to seek correction of his date of birth after his retirement".

In the case of Hindustan Lever Limited v. S.M. Jadhav and Anr., 2001 (2) ESC 338 (SC) : AIR 2001 SC 1665, the Supreme Court, has elaborated its earlier view and held that "an employee cannot be allowed to raise, at the fag-end of the career, dispute regarding correction of his date of birth".

In the case of General Manager, Bhawani Cooking Coal Limited, West Bengal v. Shib Kumar Dushad and Ors., (2000) 8 SCC 696, the Supreme Court has held that "no dispute regarding correction of date of birth shall be permitted to be raised after long time his joining service unless it is based on some typographical or arithmetical error and the Court refused to interfere in such matter".

In Bhupendra Nath Chatterjee v. State of Bihar, AIR 1977 SC 746, it was held that the date of birth recorded in service record is to govern the date of superannuation of the person from service.

The application for correction of date of birth as recorded in the service book are not permitted to be corrected by inordinate delay as held in Union of India v. Kantilal Hematram Pandiya, (1995) 3 SCC 17 : AIR 1995 SC 1349. The Supreme Court has held that the document which came into existence subsequent to the entrance in service but while getting the date of birth recorded in the said certificate respondents had not been involved.

In Union of India v. Ram Suia Sharma (1996) 7 SCC 421, the Supreme Court has again reiterated that the claim for correction of the recorded date of birth made 25 years of joining in the service could not have been entertained by the Central Administrative Tribunal and the Tribunal's direction allowing such a claim as per se illegal and that due to long delay and latches, such a claim should not have been entertained by the Tribunal.

In Harpal Singh v. State of Haryana, AIR 1981 SC 361; Brij Mohan v. P.B.N. Sinha, AIR 1965 SC 282 and Ramprasad v. State of Bihar, AIR 1970 SC 326, it has been held by the Supreme Court that unless it is proved that the entries had been recorded in exercise of the official duties by a Government servant, the same cannot be held to be admissible under Section 35 of the Evidence Act. In case, it is proved that it got recorded by an illiterate Chowkidar or by someone else or entries had been made without proper checking, the same requires corroboration and cannot be assumed to be correct.

In Mohammed Ikram Hussain v. State of U.P., AIR 1964 SC 1625, it was held that the age of the girl mentioned in the School Register at the time of admission was a good evidence under Section 35 of the Evidence Act. School Register was found to be admissible on the ground that these entries were made ante litem mortem.

In Updesh Kumar and Ors. v. Prithvi Singh and Ors., AIR 2001 SC 703, the School Admission Register was held to be made admissible under Section 35 of the Evidence Act. Even the age mentioned in Matriculation Certificate by the Education Board was held to be done in accordance with law as required under Section 114, Illustration (e) of the Evidence Act.

In Ramdeo Chauhan v. State of Assam, AIR 2001 SC 2231, the Supreme Court, while examining the issue regarding admissibility of School Admission Register under Section 35 of the Evidence Act, held that as it was not clear as under what provision of law, the School Register was maintained, the entries made in such a Register cannot be taken as a proof of age of the person concerned for any purpose.

In case of Union of India v. Harnam Singh, 1993 (2) SCC 162, position in law was again reiterated 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 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 State of Madhya Pradesh and Ors. v. Mohan Lal Sharma , JT 1996 (5) 30, 1996 SCALE (4)385 the Hon'ble Supreme Court held that while examining the issue of correction of date of birth, the Court must be very slow in accepting the case of applicant if issue has been agitated at a much belated stage and it must examine the pros and cons involved in the case even if not raised by the parties. In the said case the Tribunal had allowed application for correcting the date of birth placing reliance on the Horoscope and a certificate issued by the retired Head Master of the School showing a different date of birth. The Apex Court reversed the said judgment observing that if it was allowed the applicant would have joined the service when he was less than 18 years of age, and therefore, accepting such an application would amount to sanctifying his illegal entrance in service. The Court further observed that no reliance could be placed upon the said certificate and Horoscope at all.

In State of Punjab v. Mohinder Singh - 2005(3) S.C.C. 702, the Supreme Court has held that the school records can be corrected only with authentic records and not mere horoscope. The Supreme Court held that horoscope is a very weak piece of material to prove age of a person. A very heavy onus lies on the person, who wants to press it into service, to prove its authenticity. It requires to be proved in terms of Section 32(5) of the Evidence Act by examining the person having special means of knowledge as regards authenticity of date, time etc. mentioned therein, and in that context, horoscopes have been held to be inadmissible for proof of age. For that purpose, reliance has been placed by the Hon'ble Supreme Court on the judgments in Mt. Biro v. Atma Ram and Ors. AIR 1937 PC 101 and also on the judgment of the Calcutta High Court in Satish Chandra, Mukhopadhyaya v. Mohindra Lal Pathak ILR 97 Cal 849.

In Union of India v. Kantilal Hemantram Pandiya , 1995 AIR 1349, 1995 SCC (3) 17 the Hon'ble Supreme Court held that the Court must be very vigilant in placing reliance on a document or certificate of date of birth which had been brought into existence for the benefit of the pending proceedings as the correctness and genuineness of such a certificate is not free from doubt and the same might have been obrained for getting the relief by such an applicant.

The application submitted for correction of date of birth on the verge of retirement shall be summarily rejected is the view taken by the Supreme Court in the following decisions;
(i) (1994) 2 SCC 491 (State of Orissa v. Brahamarbar Senapathi)
(ii) (1996) 7 SCC 421 (Union of India v. Ram Suia Sharma)
(iii) (2000) 8 SCC 696 (G.M.,Bharat Coking Coal Ltd., v. Shib KUmar Dushad)
(iv) (2004) 3 SCC 394 (State of Punjab v. S.C.Chadha)
(v) (2005) 6 SCC 49 (State of U.P. v. Shiv Narain Upadhyaya)
(vi) (2005) 11 SCC 465 (U.P.Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri)
(vii) (2005) 11 SCC 477 (State of Uttaranchal v. Pitamber Dutt Semwal)
(viii) (2005) 12 SCC 201 (Coal India Ltd. v. Ardhendu Bikas Bhattacharjee)
(ix) (2006) 6 SCC 537 (State of Gujarat v. Vali Mohd. Dosabhai Sindhi)

The evidenciary value of the entry made in the SSLC book with regard to the date of birth is also considered by the Supreme Court in the decision reported in (2002) 7 SCC 719 (State of M.P. v. Mohanlal Sharma). In paragraph 2 the Supreme Court held as follows: "2. .............. The date of birth, as recorded in the matriculation examination, carries a greater evidential value than the evidential value attached to the certificate given by the retired headmaster showing the date of birth of the respondent.

Supreme Court reported in (2005) 3 SCC 702 (State of Punjab v. Mohinder Singh). Inparagraphs 11 to 13, the evidentiary value of the horescope and the entries made in the school records are considered and held as follows: "11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age.

Umesh Chandra v. State of Rajasthan 1982 AIR 1057, 1982 SCR (3) 583 ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.

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CASE LAW ON LAND LAWS