The Superintendent of Police, Special Branch, Patna v. Dinesh Sharma, S
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.562 of 2013 In Civil Writ Jurisdiction Case No. 10555 of 2005 ====================================================== 1. The State of Bihar. 2. The Director General and Inspector General of Police, Bihar, Patna. 3. The Inspector General of Police, Special Branch, Bihar, Patna 4. The Deputy Inspector General of Police, Special Branch, Bihar, Patna. 5. The Superintendent of Police, Special Branch, Patna. Versus Dinesh Sharma, S/O Late Saudagar Sharma, resident of Village- Bhaismara, P.S.- Tekari in the District of Gaya. .... .... Appellants .... .... Respondent ====================================================== Appearance : For the Appellants : Mr. Rabindra Kumar Priyadarshi, Advocate. For the Respondent : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA and HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 4 21-11-2013 I.A. No. 3300 of 2013 has been filed to condone delay of approximately 333 days in filing of the Appeal. Learned counsel for the Appellant submits that the reasons have been explained in the application. The decision to file the Appeal had been considered and needed approval at different levels. These procedures took sometime. In the larger interest of justice, the delay may be condoned. Counsel for the respondent has opposed condonation of delay. He submits that official delay caused by compliance with procedures cannot be sufficient justification Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 2 simpliciter to condone delay. In our opinion, condoning delay in filing of an Appeal is primarily a discretionary matter to be exercised in accordance with law. The exercise of discretion has to be pragmatic and justice oriented especially if it relates to appointment in public service, extension of service and consequential monetary obligations upon the State. A relevant factor would also be the validity of the order examined in the
Legal Reasoning
background of settled judicial precedents. The bar of limitation cannot justify an order legally unsustainable. There can be no absolute yardstick that under all circumstances official procedures can never be sufficient explanation for condoning delay. The exercise of this discretion shall therefore be dependent on the facts and circumstances of each case. In the present case, considering that it raises serious questions of law and fact, and in view of the precedents laid down by the Supreme Court to which we shall be adverting also, we are satisfied that the present is a fit case to condone the delay. The I.A application is allowed. The present Appeal arises from order dated 08.02.2012 allowing C.W.J.C. No. 10555 of 2005. The learned Single Judge directed the date of birth of the respondent to be corrected to read as 01.01.1945 in place of 07.10.1942. Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 3 Consequently, the date of birth of superannuation also changes.
Legal Reasoning
Learned counsel for the Appellant submits that the respondent was appointed as a Police Constable on 07.10.1965. The date of birth entered in the Service Book at the time of joining was recorded as 07.10.1942. The specific date was furnished to the Appellant by the Respondent himself and in confirmation of which the respondent also signed the Service Book. If the respondent was a Matriculate in 1961 as claimed by him subsequently, there is no explanation forthcoming why he did not produce his Matriculation certificate at the time of appointment and furnished an imaginary date of birth to his own prejudice. The application submitted by him in 1968 was for appropriate entry with regard to his educational qualification and there was no request for change of date of birth as entered in the Service Book. The authorities had therefore rightly held on 05.05.2005 that the request for correction of date of birth having been made after more than 10 years of entry into service was barred under Rule 96 of the Bihar Financial Rules. Learned counsel for the respondent contended that the requests for correction in date of birth was made on 04.06.1968 within a period of 10 years from the entry in service in 1965. Any omission or error of language in the letter cannot be Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 4 interpreted to his prejudice. The representation has to be read in its entirety and not by culling out a line from the representation. It was next submitted that the learned Single Judge has rightly relied on 1995 (1) PLJR 691 (Siyaram Singh v. State of Bihar ) that the provisions of Rule 96 were not mandatory. The entry regarding age at the time of appointment was speculative as it was based on medical assessment. It was lastly submitted that the respondents themselves at the time of preparation of gradation list in May 1978 had also invited requests for correction of date of birth in case of errors in the gradation list. The respondent had filed his request in response to the same also. Another representation had been given in 1975. We have considered the submissions on behalf of the parties. The appointment roll as also the Service Book has been brought on record in the Appeal. The former states the respondent had been found medically fit for duty by the Civil Surgeon and he was liable to discharge without any notice or reason. The date of birth is specifically mentioned as 07.10.1942 along with his height of 5 feet 6 ½ inches and the date of appointment 07.10.1965. It is not the case of the respondent that this date of birth was an imaginary entry made by the respondents arbitrarily at their whim and fancy contrary to the date 01.01.1945 Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 5 revealed by him at the time of appointment. The Service Book also mentions his date of birth as 07.10.1942. The entry is confirmed by the respondent who has signed the Service Book. It is not the case of the respondent that the entry for 07.10.1942 in the Service Book was a forgery or interpolation done later by the Appellants without his knowledge. According to the respondent he was a Matriculate in 1961. The appointment was made four years later. If the Appellant had given his date of birth as 01.01.1945 in his Matriculation records, it is first for him to explain how he permitted a higher age to be entered in the Service Book and signed the same without protest. Furthermore, if he was a Matriculate there has to be some plausible explanation from him why he did not produce the certificate at the time of appointment four years later. There is no explanation forthcoming even in the writ petition. Learned counsel for the respondent sought to persuade us that at times grant of the Matriculation certificate is delayed. Be that as it may, surely the respondent must have obtained the marksheet within a period of four years or could have procured other reasonable reliable documentary evidence and not furnished a higher age himself to his detriment if he was so sanguine of his date of birth at the time of entry in service. Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 6 Rule 96 of the Bihar Finance Rules provides that every person appointed under the Government must declare the date of birth with confirmatory documentary evidence such as Matriculation certificate, Municipal Birth Certificate etc. If the exact date is not known an approximate date may be given. According to the respondent he was in possession of his Matriculation Certificate on the date of appointment but furnishes no explanation for not placing it before the authorities. Furthermore, it is not the case of the respondent that he furnished an approximate date of birth. He mentioned a specific date i.e. 07.10.1942. Rule 96 itself provides that once this entry is recorded in the Service Book it cannot be altered except in case of a clerical error. Rule 1041 (B) of the Bihar Police Manual following Rule 96 of the Bihar Financial Rules explicitly states that no representation for correction of date of birth shall be entertained after 10 years. The respondent submitted an application on 04.06.1968. It states that his date of birth is 01.01.1945. He passed the Matriculation examination in 1961. At the time of entry in service his educational qualifications were not recorded in the Service Book. He was enclosing proof of his educational qualifications which may be entered in his service book. On the Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 7 face of it, it is apparent that it was not a request for correction of date of birth in the Service Book but only of the educational qualifications. It is again for the respondent to answer that if he was in possession of Matriculation certificate before his appointment why he did not produce the same when the date 07.10.1942 is not a figment of imagination by the Appellant but is based on that furnished by the respondent himself as recorded in the appointment roll. The submission on behalf of the respondent without prejudice to his other contentions that the period of 10 years mentioned in the Finance Rules was not mandatory is best answered by (2010) 9 SCC 337 (State of Haryana v. Satish Kumar Mittal). The Service Rules provided that any requests for change in date of birth was required to be made within two years. It was observed at paragraphs 14, 15, 17 and 18 as follows : ``14. The import of such a provision has been clarified by this Court from time to time. Thus, in para 7 of Home Deptt. V. R. Kirubakaran this Court held as follows: “ 7. 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 Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 8 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 their promotions forever. Cases are not unknown when a person accepts appointment keeping in view the date of 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 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 Court has, thereafter stated that the 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 U.P. v. Gulaichi, State of Punjab v. S.C. Chadha and State of Gujarat v. Vali Mohd, Dosabhai Sindhi. 15. As recorded above, it has been held time and again Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 9 that the application for correction of date of birth is also to be looked into from the point of view of the department concerned 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 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. 17. In the circumstances, in our view, the High Court as well as the courts below clearly erred in entertaining the claim of Respondent 1 for correction in his date of birth at a belated stage. In such a matter, we are concerned with the correction in the date of birth for the purpose of service record and not for any other purpose. The observations of this Court in para 7 of Union of India v. Harnam Singh in this behalf are quite apt: “7. A government servant, after entry into service, acquires 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 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, 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 Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 10 prescribed for seeking correction of date of birth, the government servant must do so without any unreasonable 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 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 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 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.” 18. 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 through out 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 13-08-2001 retrospectively which was not the case over here.” In conclusion, we find it difficult to sustain the order under Appeal. It is accordingly set aside. Patna High Court LPA No.562 of 2013 (4) dt.21-11-2013 11
Decision
The Appeal is allowed. (Navin Sinha, J) Md. Ibrarul/- (Shailesh Kumar Sinha, J)