- Statutory provision governing Correction
- Secretary and Commissioner, Home Department v. R. Kirubakaran [1994 Supp (1) SCC 155]
- Article 226 of the Constitution
- Date of retirement
- Burn Standard Co. Ltd. v. Dinabandhu Majumdar [(1995) 4 SCC 172]
- Service Record of the employee
- Service and Leave Record
- Writ applications made by employees
- Guidelines as regards the grant of interim orders
- General Principle
The issue regarding permissibility of correction of date of birth in one’s service records is one that has been considered by High Courts and the Supreme Court on many occasions. Although it is now well settled that in any service, an employee ought not, without valid justification, to be permitted to correct the date of birth in his service records at the fag end of his service in the establishment, the case law on the point covers a myriad of factual situations that it cannot be stated as a general proposition that such a correction in the service records can never be done.
# Statutory provision governing Correction
There is no statutory provision governing correction of date of birth in service records. In the absence of statutory provisions, the subject should be governed either by executive orders of the Government or by the principles laid down in decided cases. In the absence of an executive order prescribing a time limit for the preferring of applications, available legal literature suggests that the employer can consider a claim for correction of date of birth in the service records if an application is preferred within a reasonable time.
As to what would constitute reasonable time, decided case law suggests that it is a decision that has to be taken on a case to case basis, taking into account various factors such as the bona fides of the claimant, his/her conduct, whether he/she would have obtained an unintended advantage while securing employment were the corrected date of birth taken as the actual date of birth, whether the employee is estopped from claiming a different date as his date of birth and the prejudice that would be caused to his juniors in service through an acceptance of the claim.
The aforesaid legal position has been quite eloquently stated in the decisions of the Supreme Court in Secretary and Commissioner, Home Department and Others v. R. Kirubakaran [1994 Supp (1) SCC 155] and Burn Standard Co. Ltd. and Others v. Dinabandhu Majumdar and Another [(1995) 4 SCC 172]. Both the aforementioned cases dealt with employees who had preferred applications for correction of date of birth in their service records at the fag end of their service.
# Secretary and Commissioner, Home Department v. R. Kirubakaran [1994 Supp (1) SCC 155]
In Kirubakaran’s case (Supra), taking note of the fact that the applicant had joined service in 1958 and had filed the application seeking correction of date of birth in his service records in 1991, when he was due to retire from service in 1992, the court observed as follows:-
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. 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 and for calculating the date of retirement, it is necessary to maintain the date of birth in the service records.
# Article 226 of the Constitution
But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their dates of birth recorded in the service records, by either invoking the jurisdiction of the High Courts under Article 226 of the Constitution or by filing applications before the concerned Administrative Tribunals, 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 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 claim regarding correction, of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant.
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 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 for ever.
# Date of retirement
Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. 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 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 claim for correction of date of birth has been made in accordance with the procedure prescribed, 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 filed within the time, which can be held to be reasonable.
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 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 it is a part 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 respect of their dates of birth in the service books. By this process, it has come to the notice of the Courts that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation.
The Court or the Tribunal must, therefore, be slow in granting an interim relief for 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 merely caused injustice to his immediate junior.
# Burn Standard Co. Ltd. v. Dinabandhu Majumdar [(1995) 4 SCC 172]
Similarly, in Burn Standard Company’s case (Supra), the Court considered the case of an employee who had joined service in 1953 and preferred an application for correction of date of birth in his service records in 1989, two years prior to his retirement that was due in 1991. While discussing the rationale behind permitting a correction of date of birth in the service records and the role of courts in such matters, the Court observed as follows:-
The importance of the date of birth of an employee given to his employee and accepted as correct by the latter and entered in the ‘Service and Leave Record’ of the former, cannot be underestimated. That is so for the reason that the employee’s service with the employer has to be necessarily regulated according to such date of birth. Therefore, when a person is taken into service on appointment, he would be required by his employer to declare his correct date of birth and support the same by production of appropriate certificates or documents, if any.
Even where the persons so appointed fail to produce the certificates or documents in proof of their date of birth, they would be required to affix their thumb impression or signature in authentication of their declared ages or dates of birth. When, on the basis of such declaration made or certificates produced by the employee an entry is made of his date of birth in his ‘Service and Leave Record’ to be opened, that will amount to acceptance by the employer of such date of birth, as correct, be it the Government or its instrumentality.
# Service Record of the employee
When such entry is made in Service Record of the employee the only way in which the employer, Government or its instrumentality can get over such entry, because of subsequent disclosures as to its incorrectness, is to hold an inquiry into the matter by affording an opportunity to the employee concerned to have his say in the matter. But when once the employer, the Government or the instrumentality concerned accepts the date of birth of an employee as declared by him and supported by certificates or documents produced by him and allows him to enter into its service and continue on such basis, is it open to such employee to claim that the date of birth declared and authenticated by him was incorrect and, therefore, the employer, be it the Government or its instrumentality, should correct his date of birth in his ‘Service and Leave Record’ according to what he claims to be true and if the Government or its instrumentality concerned refuses to accept such claim, can the High Court in exercise of its discretionary extraordinary writ jurisdiction entertain a writ application, to consider the merit of such claim?
No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee, becomes impermissible.
However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, could be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction.
# Service and Leave Record
If that be the legal position, can it be said that it is open to a High Court in exercise of its extraordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his ‘Service and Leave Record’ at the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his ‘Service and Leave Record’ and continue him in service beyond the date of his normal retirement, is the question.
It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed question of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the concerned party. But, the question is that if an employee of the Government or its instrumentality, who is at the fag end of his service and due for retirement from his service shortly, accordingly to his date of birth found in his ‘Service and Leave Record’ files a writ application before the High Court and invokes its writ jurisdiction for correction of such date of birth with a view to continue in service beyond the normal period of his retirement, will it be appropriate for the High Court to entertain such application to enquire into disputed facts pertaining to his date of birth for correcting it and extend his period of service?
# Writ applications made by employees
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 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 employer 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.
Therefore, ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his ‘Service and Leave Record’ or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.
# Guidelines as regards the grant of interim orders
Thereafter, the Court proceeded to lay down guidelines as regards the grant of interim orders in matters where an employee had approached for correction of date of birth at the fag end of his service, and sounded the following caveat:-
Prudence on the part of every High Court should prevent it from granting interim relief in a petition for correction of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employment, because of the well settled legal position governing such correction of date of birth, which precisely stated, is the following :-
When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements for the post. In order to verify that the person concerned is not below that prescribed age he is required to disclose his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. This entry in the service record made on the basis of the employee’s statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules.
Here again considerations for a change in the date of birth may be diverse and the employer would be entitled to view it not merely from the angle of there being a genuine mistake but also from the point of its impact on the service in the establishment. It is common knowledge that every establishment has its own set of service conditions governed by rules. It is equally known that practically every establishment prescribes a minimum age for entry into service at different levels in the establishment.
The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth.
Secondly, would revision of his date of birth after a long lapse of time upset the promotional chances of others in the establishment who may have joined on the basis that the incumbent would retire on a given date opening up promotional avenues for others.
If that be so and if permitting a change in the date of birth is likely to cause frustration down the line resulting in causing an adverse effect on efficiency in functioning, the employer may refuse to permit correction in the date at a belated stage. It must be remembered that such sudden and belated change may upset the legitimate expectation of others who may have joined service hoping that on the retirement of the senior on the due date there would be an upward movement in the hierarchy.
In any case in such cases interim injunction for continuance in service should not be granted as it visits the junior with irreparable injury, in that, they would be denied promotions, a damage which cannot be repaired if the claim is ultimately found to be unacceptable. On the other hand, if no interim relief for continuance in service is granted and ultimately his claim for correction of birth date is found to be acceptable, the damage can be repaired by granting him all those monetary benefits which he would have received had he continued in service. In such cases it would be imprudent to grant interim relief.
The same view has been consistently taken by the Supreme Court in subsequent years as well, as is evident from a reading of the judgments in State of U.P. And Others v. Gulaichi (Smt) [(2003) 6 SCC 483]; State of Punjab And Others v. S.C. Chadha [(2004) 3 SCC 394] and State of Maharashtra and another v. Gorakhnath Sitaram Kamble and Others [(2010) 14 SCC 423].
# General Principle
The general principle that can be culled out from the said decisions is that ordinarily, an application for correction of date of birth in service records should not be entertained, if preferred by an employee at the fag end of his service. The said rule, however, is not without exceptions, and in cases where there is clear, clinching and unimpeachable evidence to show that the date of birth of an employee has been wrongly entered in his service record, and a denial of permission to correct the said record would tantamount to a denial of justice to the employee, courts have permitted such correction of the service record.
[See:- State of U.P. and Another v. Shiv Narain Upadhyaya [(2005) 6 SCC 49]; State of Gujarat and Others v. Vali Mohd. Dosabhai Sindhi [(2006) 6 SCC 537]; State of Madhya Pradesh and Others v. Premlal Shrivas [(2011) 9 SCC 664] and Bharat Coking Coal Limited And Others v. Chhota Birsa Uranw [(2014) 12 SCC 570]].
[The above discussion on “Correction of Date of Birth in Service Records” extracted from a recent judgment of the Kerala High Court in T.V. Achumma Vs. State of Kerala dated 21 July 2015 authored by Justice A.K. Jayasankaran Nambiar]