# Mohammad Ayub v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-27
- **Case number:** Civil Misc. Writ Petition No. 20219 of 1998
- **Bench:** R.B. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ayub-v-state-of-u-p-and-others-40231
- **Pages:** 14

## Headnote

(A) Constitution of India Article 226
readwith
U.P.
Recruitment
(Determination date of birth) Rules
1974-Date of Birth in absence of High
School certificate-Date of birth recorded
in service book duly acknowledged by
the
concerned
employee-Alteration
claimed
on
the
basis
of
medical
certificate-Disputed question relating to
date of birth can not be decided in writ
jurisdiction-Petition Dismissed.

Held- Para 47

Date of birth entered into service book,
duly verified by the petitioner and
competent authority, is taken as correct
date of birth of the petitioner.

Dispute regarding date of birth-being a
disputed question of fact cannot be
adjudicated in writ petition.

(B) U.P. Recruitment (Determination of
Date of Birth) Rules 1974-Correction of
Date of Birth-date of Birth once entered
in service book remain untouched for a
long period can not be questioned.
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3 All] Mohammad Ayub V. State of U.P. and others
909
Held-Para 41

It is settled proposition of law that the
date of birth entered in the Service Book
cannot be corrected at a belated stage.
Where the date of birth entry remains in
existence for a long time, the same does
not require to be disturbed.
Case law referred:
(2003) 1 UPLBEC-280, S.A. No. 383 OF 1989,
AIR 1995 SC 1499, (1995) Vol. 4 SCC 172,
2001 (2) ESC 338 (SC), AIR 2001 SC 1665,
AIR 1997 SC 2452, (200) 8 SCC 696, AIR 1967
SC 1269, AIR 1977 SC 746, AIR 1993 SC 2647,
1994 Supp. (1) SCC 155, (1995) Vol. 3 SCC
17, AIR 1995 SC 1349, AIR 1995 SC 850, 1995
(2) SCC 82, (1996) 7 SCC 421, AIR 1997 SC
1986, AIR 1991 SC 308, 1991 Supp. Vol. 2
SCC 387, (1994) Vol. 6 SCC 302, (1995) 2 SCC
98, 1996 (1) SCC 593, AIR 1997 SC 2452,
1997 Vol. 5 SCC 181, (2003) 2 UPLBEC 1602,
1991 (63) FLR 76, (1996) 72 FLR 562, (1995)
71 FLR 950, JT (2002) 10 SCC 207, AIR 1965
Raj. 86, AIR 1978 A.P. 420, AIR 1973 Alld. 23,
AIR 1964 SC 370, AIR 1966 SC 1931, AIR
1967 SC 856, AIR 1969 SC 903, AIR 1978 SC
1142, AIR 1999 SC 264, (1999) 7 SCC 510,
AIR 1999 SC 264, (200) 7 SCC 719, (2000) 9
SCC 549, (2000) 1 SCC 652, AIR 1981 SC 361,
AIR 1965 SC 282, AIR (1970) SC 326, AIR
1964 SC 1625, AIR (2001) SC 703, AIR 1970
SC 1029, AIR 2001 S.C. 2231, AIR 1988 SC
1796, AIR 1998 Raj. 54 DB, AIR 1988 SC
2981, (1999) SCC 141, AIR (2001) SC 1684,
(2003) 1 SCC 18, AIR 2003 SCW 3775, 2003
(2) UPLBEC 1780, (1970) 3 SCC 624, 1990 (2)
SCC 682, 1993 Supp. 1 SCC 763, 1993 (2) SCC
162, 1993 Supp. 1 SCC 306, 1990 (1) SCJ 59,
(1993) Supp. 1 SCC 192, (1991) 2 SCC 716.

## Text

_Characters 0–39,908 of 47,092. This is a partial read: ask again with offset=39908 for what follows._

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908 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
considering the overall performance of
the employee during whole of his tenure
of service whether it is in public interest
to retain him in the service. The whole
record of service of the employee will
include any uncommunicated adverse
entries as well."

26. In the present case the relevant
records, character roll, confidential report
and service book have been seen and the
order in question is not passed arbitrarily
and is made in public interest in
compliance to the fundamental Rules 56
as such judicial review is not possible in
view Vijay Kumar (supra). The present
compulsory retirement have been passed
fairly, bonafidely free from arbitrariness,
in the public interest and in the interest of
the administration and in consonance to
the fundamental rules by way of order of
simplicitor, therefore, is in consonance to
the decision of Supreme Court (1992 ) 2
SCC 317 P & T. Board v. C.S.N. Murthy
and on the material available in the
service record of the petitioner and in the
light of judgment of Baikuntha Nath
(supra) and AIR 1994 SC 1261 Union of
India v. N.P. Seth, (1998) 4 SCC 92 State
of Punjab v. Gurudas Singh 1998 (9) SCC
220; U.P.S.R.T.C. v. Hari Nath Singh
(1997) 7 SCC 483; Union of India v. G.
Ganayuthan and 1997 (6) SCC 381 State
of Punjab v. Bakshi Singh.

27. In view of the above decisions
compulsory retirement order has been
passed against the petitioner in the public
interest did not indicate any stigma and
the principle of natural justice is not
attracted. Therefore, no scope of any
interference is made out.

Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.08.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 20219 of
1998

Mohammad Ayub

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.S. Shukla
Sri Surendra Prasad
Sri B.C. Naik

Counsel for the Respondents:
Sri S.S. Sharma
S.C.

(A) Constitution of India Article 226
readwith
U.P.
Recruitment
(Determination date of birth) Rules
1974-Date of Birth in absence of High
School certificate-Date of birth recorded
in service book duly acknowledged by
the
concerned
employee-Alteration
claimed
on
the
basis
of
medical
certificate-Disputed question relating to
date of birth can not be decided in writ
jurisdiction-Petition Dismissed.

Held- Para 47

Date of birth entered into service book,
duly verified by the petitioner and
competent authority, is taken as correct
date of birth of the petitioner.

Dispute regarding date of birth-being a
disputed question of fact cannot be
adjudicated in writ petition.

(B) U.P. Recruitment (Determination of
Date of Birth) Rules 1974-Correction of
Date of Birth-date of Birth once entered
in service book remain untouched for a
long period can not be questioned.
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3 All] Mohammad Ayub V. State of U.P. and others
909
Held-Para 41

It is settled proposition of law that the
date of birth entered in the Service Book
cannot be corrected at a belated stage.
Where the date of birth entry remains in
existence for a long time, the same does
not require to be disturbed.
Case law referred:
(2003) 1 UPLBEC-280, S.A. No. 383 OF 1989,
AIR 1995 SC 1499, (1995) Vol. 4 SCC 172,
2001 (2) ESC 338 (SC), AIR 2001 SC 1665,
AIR 1997 SC 2452, (200) 8 SCC 696, AIR 1967
SC 1269, AIR 1977 SC 746, AIR 1993 SC 2647,
1994 Supp. (1) SCC 155, (1995) Vol. 3 SCC
17, AIR 1995 SC 1349, AIR 1995 SC 850, 1995
(2) SCC 82, (1996) 7 SCC 421, AIR 1997 SC
1986, AIR 1991 SC 308, 1991 Supp. Vol. 2
SCC 387, (1994) Vol. 6 SCC 302, (1995) 2 SCC
98, 1996 (1) SCC 593, AIR 1997 SC 2452,
1997 Vol. 5 SCC 181, (2003) 2 UPLBEC 1602,
1991 (63) FLR 76, (1996) 72 FLR 562, (1995)
71 FLR 950, JT (2002) 10 SCC 207, AIR 1965
Raj. 86, AIR 1978 A.P. 420, AIR 1973 Alld. 23,
AIR 1964 SC 370, AIR 1966 SC 1931, AIR
1967 SC 856, AIR 1969 SC 903, AIR 1978 SC
1142, AIR 1999 SC 264, (1999) 7 SCC 510,
AIR 1999 SC 264, (200) 7 SCC 719, (2000) 9
SCC 549, (2000) 1 SCC 652, AIR 1981 SC 361,
AIR 1965 SC 282, AIR (1970) SC 326, AIR
1964 SC 1625, AIR (2001) SC 703, AIR 1970
SC 1029, AIR 2001 S.C. 2231, AIR 1988 SC
1796, AIR 1998 Raj. 54 DB, AIR 1988 SC
2981, (1999) SCC 141, AIR (2001) SC 1684,
(2003) 1 SCC 18, AIR 2003 SCW 3775, 2003
(2) UPLBEC 1780, (1970) 3 SCC 624, 1990 (2)
SCC 682, 1993 Supp. 1 SCC 763, 1993 (2) SCC
162, 1993 Supp. 1 SCC 306, 1990 (1) SCJ 59,
(1993) Supp. 1 SCC 192, (1991) 2 SCC 716.

(Delivered by Hon'ble R.B. Misra, J.)

Heard Sri Brijesh Chandra Naik,
learned Counsel for the petitioner and Sri
S. S. Sharma, learned Standing Counsel.

1. Listing application is being
disposed of and with the consent of the
parties the present writ petition is
disposed of in view of Second proviso to
Rule 2 of Chapter XXII of the High Court
Rules, 1952.

2. In this petition the petitioner has
prayed for quashing the order dated
2.2.1998
(Annexure-4
to
the
writ
petition), whereby the petitioner was
directed to be retired on 30.6.1998, with a
further prayer to direct the respondents to
continue the petitioner in service till
30.6.2001.

3. According to the petitioner he was
appointed as a temporary Bearer in
Circuit House w.e.f. 29.1.1962. The
petitioner is not High School pass, and
while entering into service the date of
birth of the petitioner was entered as
05.06.1940 in the service book, which
was duly attested by the petitioner as well
as by the competent authority the
Assistant Engineer. The petitioner in due
course was promoted as Work Supervisor
w.e.f. 26.5.1979 and had carried on the
service satisfactorily and taking the date
of birth as 5.6.1940, an order dated
2.2.1998 (Annexure-IV) was issued to
petitioner to retire him on 30.6.1998.

4. In the supplementary affidavit
filed on behalf of the petitioner on
11.4.2000 the petitioner relied upon the
returns given by the office of the
Executive Engineer of Public Works
Department, where the date of birth of the
petitioner was written as 5.6.1943. At the
fag end of career the petitioner presented
the registration and transfer certificates
issued on 15.7.1969 by Jai Narain Pratap
Narayan
Higher
Secondary
School
Kanpur showing the dispute in the date of
birth shown as 5.6.1940 in place of
5.6.1943. According to the petitioner he
has been given a certificate by the Chief
Medical Officer, Kanpur Nagar dated 25th
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910 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
May, 1998 (enclosed as Annexure-7 to
the writ petition) according to which by
physical appearance the age of the
petitioner was estimated fifty five years
on 25.5.1998. On the basis of this medical
certificate, transfer certificate and returns
issued by the Executive Engineer, the
petitioner has claimed and disputed at the
fag end of his service his date of birth as
5.6.1943 and not the date of birth entered
into the service book, which was duly
attested by the petitioner and verified by
the competent authority.

5. Though counter affidavit has not
been filed, however, the learned Standing
Counsel had submitted that the date of
birth entered into the service book and
duly verified by the petitioner and
endorsed by the competent authority is to
be taken as correct date of birth. The
petitioner has acknowledged the same and
has not agitated or claimed for correction
of his date of birth after entering in
service. As the dispute of the date of birth
is a question of fact and that could only be
rectified by Civil Court by way of suit the
petitioner
might
have
relied
upon
evidences and documents of his choice to
prove his controvertial date of birth at
appropriate forum and the disputed
question of fact can not be gone into in
the writ petition.

6. In {(2003) 1 UPLBEC-280
Bimlesh Sharma vs. Electricity Board,
Office of Chief Engineer, U.P. Rajya
Vidyut Parishad, Moradabad and others
where date of birth entered in the service
book was to be changed by the wife of the
deceased employee when the husband of
the
writ
petitioner
had
died
after
retirement by disputing the change of date
of birth. This court has held disputed
question of fact cannot be investigated in
the writ petition and the date of birth once
entered in the service book of the
petitioner under U.P. Recruitment to
service (Determination of Date of Birth)
Rules,1974, was treated to be correct
supported by the relevant documents and
supporting entries in the service book and
the change of the date of birth disputing
the same on the basis of fitness certificate
were not treated to be relevant proof of
age and such controversy and disputed
question of fact could not be resolved by
investigating the authenticity of the
documents relied upon by the parties
concerned in the writ proceedings.

7. In the case of Adhishashi
Abhiyanta, Electricity Board, Rihand and
Hydel Civil Div. U.P. State Electricity
Board, Allahabad and another v. Shitla
Prasad and another, Special Appeal No.
383 of 1989, decided on 17.9.1993, a
Division Bench of this Court has held
that:-
..... in our opinion, the medical fitness
certificate dated 25.7.1974 could not be
treated an opinion of the Doctor regarding
the age of the petitioner. The certificate
has been given in the proforma prescribed
under Fundamental Rules 10. The Doctor
had examined the petitioner in order to
ascertain as to whether he suffered from
any communicable disease or otherwise
and whether he had any constitutional
weakness or bodily infirmity which would
constitute
disqualification
for
employment in the Hydel department. The
Doctor was not asked or required to give
an opinion regarding the age of the
petitioner. There are well known scientific
methods to ascertain the age of a person
and ossification of bone gives a fairly
accurate idea regarding the age. However,
for this purpose X-ray examination has to
be performed in case of Doctor had been
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3 All] Mohammad Ayub V. State of U.P. and others
911
asked to give his opinion regarding the
age of the petitioner he would have
performed necessary tests including X-ray
examination etc. and would have also
given the scientific date on the basis of
which he would have formed his opinion
about the age. The Doctor while giving
opinion about the age of a person is if
the.... Nature of the an expert and in
absence
of
necessary
scientific
date...weight in view of Section 45 of
Evidence Court. We are clearly of the
opinion that the medical fitness certificate
dated 25.7.1994, could not at all be
treated as an opinion of the Doctor
regarding the age of the petitioner. As a
consequence the said document could not
be used for the purpose of determining his
age.

8. In the case of Burn Standard Co.
Ltd. v. Dinabandhu Majumdar, AIR 1995
Supreme Court 1499, 1995 (4) SCC 172 it
was held that the employee of a public
sector undertaking whose date of birth
was entered in service book and leave
record on the basis of the voluntary
declaration made by the employee at the
time of appointment and authenticated by
him was never objected to up to the fag
end of service, thereafter he sought for
correction of date of birth about two years
before his superannuation, when his
prayer was refused, he moved the High
Court in the writ petition, where relief
was granted in his favour, however, the
Supreme Court in appeal by special leave
has held that ordinarily the High Court
should not exercise its discretion in writ
jurisdiction and entertain a writ petition
filed by an employee of the Government
or any instrumentality of State towards
the fag end of his service seeking
correction of his date of birth entered in
his service record or service register with
the avowed object of continuing in service
beyond the consequential period of
retirement.

The Supreme Court has pointed out
when an employee of the Government or
its instrumentality who remained in
service for over decades, with no
objection whatsoever raised as to his date
of birth accepted by the employer as
correct all of a sudden comes forward
towards the fag-end of his service career
with writ petition before the High Court
seeking correction of date of birth in his
service record, the very conduct of not
raising any objection in the matter by the
employee for long should be a sufficient
reason for the High Court not to entertain
such application on the ground of
acquiescence, undue delay and laches.

9. In the case of State of Orissa and
others 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".

10. In the case of Hindustan Lever
Limited v. S.M.Jadhav and another, 2001
(2) E.S.C. 338 (S.C.)=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."
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912 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
11. In the case of General Manager,
Bhawani Cooking Coal Limited, West
Bengal v. Shib Kumar Dushad and others,
(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."

12. In the matter of dispute
regarding date of birth, the Government
may choose one of the suggested date of
birth given by the employee if some
preliminary inquiry is made to resolve the
controversy of the date of birth and
Inquiry Officer holds the preliminary
inquiry does not disclose to the person
concerned and the decision arrived
thereunder was treated to be contrary to
the basis of justice and can have no value
and shall be treated against the rules of
natural justice has to accept one date of
birth out of the claims by the employee on
the basis of the inquiry report, such
inquiry report should be passed on after
informing the person concerned and after
taking into the evidence in support thereof
and after providing opportunity to the
persons concerned as held in the State of
Orissa v. Dr. Miss Binapani Dei AIR
1967 SC 1269.

13. 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.

14. In the matter of correction of
date of birth. an application for that
purpose is to be filed, according to the
procedure prescribed within the time
under rules or if no rule is prescribed,
such application should be made within
reasonable time. The Supreme Court has
held that no interim order on application
for correction of the date of birth should
be passed by the Tribunal or the High
Court keeping in view only the public
service, directing the employee to be
continuing in service unless there are
cogent and conclusive materials produced
by the employee that the date of birth
recorded in the service record was not
correct. The onus is heavy on the
employee to prove the authenticity of the
date of birth claimed for, it was therefore,
held that the Court or Tribunal shall be
slow in granting such interim relief unless
the claim is supported by prima facie
evidence of unimpeachable character, as
observed in Secretary cum Commissioner,
Home Department v. R. Kirubakaram
AIR 1993 SC 2647: 1994 Supp. (1) SCC
155.

15. 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. The Supreme Court
considered this issue in Union of India v.
Kantilal Hemantram Pandya (supra) and
held that court may not place any 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. In Union of India v.
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3 All] Mohammad Ayub V. State of U.P. and others
913
Kantilal Hematram Pandya (supra), the
Supreme Court reiterated a similar view
observing as under:-

"He allowed the matter to rest till he
neared the age of superannuation. The
respondent slept over his rights to get the
date of birth altered for more than thirty
years and woke up from his deep slumber
on the eve of his retirement only..... State
claims and belated applications for
alteration of the date of birth recorded in
the Service Book at the time of initial
entry,
made
after
unexplained
and
inordinate delay, on the eve of retirement
need to be scrutinized carefully and
interference made sparingly and with
circumspection. The approach has to be
cautious and not casual. On facts, the
respondent was not entitled to the relief
which the Tribunal granted to him."

16. In another case when long delay
was made in seeking the correction of
date of birth and the application having
been filed beyond the statutory time limit
(three years) it was held by the Supreme
Court that competent authority may reject
such application and the plea of the
employee that the alleged mistake was
discovered at about the time when he filed
the application for date of birth which was
about 40 years of the date of joining the
service cannot be accepted as correct.
{Chief Medical Officer v. Khadeer
Khadri AIR 1995 SC 850; (1995) 2 SCC
82;

17. In Union of India v. Ram Suia
Sharma 16 {(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 is per se illegal and
that due to long delay and latches, such a
claim should not have been entertained by
the Tribunal.

18. In respect of condition precedent
for correction of date of birth the Supreme
Court held the employee seeking the
correction of the date of birth must show
that the recorded date of birth was made
due to negligence of some other person or
that the same was an obvious clerical
error and that where the employee fails to
do so, such relief for correction of date of
birth should not be granted by the
Administrative Tribunal. In that case, the
extract from the Birth Register was
produced, subsequently to the recording
of date of birth on the basis of the school
leaving certificate. The authority refused
to correct the date of birth in the service
on the basis of such extract. It is held by
Supreme Court that in the absence of any
material to show that the entry in the
school leaving certificate was incorrect,
the authority rightly refused to correct the
date of birth, more so when the extract
from the Birth Register even otherwise
was found to be doubtful. {Commissioner
of Police, Bombay v. Bhagaban V.
Lahane AIR 1997 SC 1986;}

19. The respondent applied for
correction of date of birth before the
appointing authority on obtaining a decree
from civil court in a civil suit filed by the
respondent against the Board/University
for correction of his date of birth in the
matriculation certificate issued by the
Board/University. In that suit Government
was not made a party. The question arose
if the Government was bound to correct
the date of birth in the service record on
the basis of the said decree obtained
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914 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
against the Board/University in which the
Government was not a party. The
Supreme Court has held that as in the suit
the Government was not a party, such
decree
is
not
binding
upon
the
Government and the Government is not
obliged to correct the date of birth on the
basis of the said decree. It is also held that
at best it is a piece of evidence and the
Government has to look into all kinds of
evidence for determination in order to
decide whether the date of birth should be
correct. It is observed that what is the
date of birth is undoubtedly a question of
fact and so all kinds of evidence can be
looked into for such determination and if
the Government on consideration of all
these facts refused to correct the date of
birth, then the order cannot be interfered
with by the Court or Tribunal. {Director
of Technical Education v. Smt. K.
Sitadevi AIR 1991 SC308; 1991 Supp (2)
SCC 387;}

20. The object of the rule or
statutory instructions issued under the
provision to Art. 309 or orders issued by
the Government under Art.162 of the
Constitution for the correction of date of
birth entered in the service record, is that
the Government employee, if he has any
grievance, in respect of any error or entry
in the date of birth, will have an
opportunity, at the earliest to have it
corrected. Its object also is that the
correction of the date of birth beyond a
reasonable
time
should
not
be
encouraged.
Permission
to
reopen
accepted date of birth of an employee,
specially on the eve of or shortly before
the superannuation of the Government
employee would be an impetus to produce
fabricated records. {State of T.N. v. T.V.
Venugopalan (1994) 6 SCC 302;}

21. In reference to the decision of
Supreme Court in Burn Standard Co.
Ltd.(supra) where entry of date of birth
noted in the Admit Card of matriculation
Examination could not be relied upon by
the employer to correct the date of birth
recorded in the service and Leave
Register
of
the
employee
and
authenticated by the employee himself it
was the date of birth recorded at the time
of joining service on the basis of the
S.S.L.C. register was challenged by the
employee 35 years later and his previous
application for correction seven years
earlier had already been rejected by the
authority and at the belated stage, the only
evidence was his oral evidence and the
horoscope
evidence.
Therefore,
the
Supreme Court held that at the belated
stage the horoscope evidence or oral
statements cannot be believed. {Collector
of Madras v. Rajamanickram (1995) 2
SCC 98;}

22. The date of birth recorded in
periodical medical inspection reports- can
be
relied
up
when
the
employee
challenged the declared date of birth as
mentioned in the notice of superannuation
as incorrect as the service records were
missing. The Department pleaded before
the Court below that the service record
was manipulated and that the service
register was removed by the employee in
connivance
with
the
Office
Superintendent. The employee sought to
rely upon the periodical medical reports
noting date of birth to uphold his
contention
that
the
date
of
birth
mentioned in the notice of superannuation
was not correct. It was held that the date
of birth recorded in the periodical medical
inspection reports are not such reliable
piece of evidence to uphold the contention
of the employee that the date of birth
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3 All] Mohammad Ayub V. State of U.P. and others
915
mentioned in the superannuation notice is
incorrect. {Sheo Nandan Singh v. Union
of India (1996) 1 SCC 593;}

23. In respect of correction of date
of birth after retirement- when claimant
retired from the service on 31st December
1978 and in 1981 he filed a suit against
the rejection of his representation for
correction of his date of birth for
declaration that his correct date of birth is
1st January 1925 and not 1stJanuary, 1921.
The Trial Court dismissed the suit but the
First Appellate Court decreed the suit and
the Orissa High Court has dismissed the
second appeal in limine. The Supreme
Court set aside the order of the High
Court and allowed the appeal and also the
judgment
and
decree
of
the
First
Appellate Court and restored that the Trial
Court. It was held that when entry was
made in the service record and when he
was in service, he did not make any
attempt to have the service record
corrected
any
amount
of
evidence
produced subsequently would be of no
avail and that the High Court has
therefore committed the manifest error in
refusing to entertain the second appeal.
{State of Orrisa v. Ramnath Patnaik AIR
1997 SC 2452. (1997) 5 SCC 181;}

24. In (2003) 2 UPLBEC 1602
(Ehtesham
Ullah
Khan
v.
Central
Administrative Tribunal, Allahabad and
others) this court (D.B.) (Hon'ble Dr.
B.S.Chauhan and Ghanshyam Dass JJ)
has held that once the date of birth is
recorded in service record, at time of
entrance in service, it can be changed only
by production of strong documentary
evidence showing that it was incorrect.
Any document coming into existence
subsequent to entrance in service in
correctness or genuineness of entry
therein is said not free from doubt. In the
instant case, petitioner joined service in
1963 and got his date of birth recorded as
17.5.1934, thereafter, he had passed High
School Examination in 1965, wherein
date of birth was recorded as 17.2.1943.
He filed application for change in his date
of birth in 1987, i.e., after 19 years of his
service on the strength of this High
School Certificate, a documentary proof,
which by itself was rightly not found
reliable, in view of settled law, besides it
the fact about its genuineness also became
doubtful as parentage of petitioner was
found
recorded
different
than
that
recorded in service record as such the
Tribunal, therefore, rightly held to have
rejected application.

25. Similarly as held in Rajasthan
High Court in R.S. Mehrotra v. Central
Government Industrial Tribunal, 1991
(63) FLR 76, the documents obtained
subsequent to the date of joining the
service cannot be relief upon for the
purpose of correcting the date of birth as
it might be very easy for the employee to
mention another date in the papers while
preparing the other documents, which
came into existence subsequently and the
Industrial Tribunal should not have
accepted the claim of the workman
placing reliance on such documents.

26. In Maharashtra State Electricity
Board v. Sakharam Sitaram Shinde, 1996
(72) FLR 562, the Bombay High Court
has taken a similar view observing that
the
possibilities
of
fabricating
the
documents just to support bogus claim of
an employee cannot be ruled out in such
circumstances.

27. The Rajasthan High Court in
Nagar Mahapalika, Bareilly v. Labour
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916 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Court, Bareilly and Anr., 1995 (71) FLR
950, held that the Industrial Tribunal
committed an error in placing reliance on
the documents prepared by the employee
subsequently.

28. In State of Madhya Pradesh and
Ors. V. Mohan Lal Sharma, JT (2002) 10
SC 207, the 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
application for correcting the date of birth
was rejected observing, that if it was
allowed the applicant had joined the
service, when he was below 18 years of
age,
and
therefore,
accepting
such
application would amount to sanctifying
the illegal entrance in service.

29. There is a presumption that
official acts are regularly performed
though such a presumption can be
rebutted by adducing evidence. (Vide
Jhaman Lal v. State of Rajasthan and ors.,
AIR 1965 Raj. 86; Somasusudarshan
Goud
v.
The
District
Collector,
Hyderabad and Anr., AIR 1978 AP 420;
Ganga Ram v. Smt. Phulwati, AIR 1970
All. 446; Saheed Ahmed v. Syed Qumar
Ali and Anr., AIR 1973 All. 23; Gopal
Narain v. State of U.P. and ors., AIR 1964
SC 370; Maharaja Pratap Bahadur Singh
v. Thakur Man Mohan Dey and ors., AIR
1966 SC 1931; Ajit Singh v. State of
Punjab and Ors., AIR 1967 SC 856; State
of Punjab v. Satya Pal Dang and ors., AIR
1969 SC 903; Sone Lal and ors. V. State
of U.P. and ors., AIR 1978 SC 1142;
Municipal Board, Saharanpur v. Imperial
Tobacco of India Ltd., and ors., AIR 1999
SC 264; K. Bhaskaran v. Sankaran
Vaidhyan Balan and Anr., (1999) 7 SCC
510; Kiran Gupta v. State of U.P. and
ors., AIR 1978 SC 1142; Municipal
Board, Saharanpur v. Imperial Tobacco of
India Ltd., and ors., AIR 1999 SC 264; K.
Bhaskaran v. Sankaran Vaidhyan Balan
and Anr., (1999) 7 SCC 510; Kiran Gupta
v. State of U.P. and Ors., (2000) 7 SCC
719; Superintendent, Narcotics Control
Bureau v. R. Paulsamy, (2000) 9 SCC 549
and the State Government of NCT of
Delhi v. Sunil and Anr., ( 2000 ) 1 SCC
652.

30. In Narayan Govind Gavate v.
State of Maharashtra and ors., AIR 1977
SC 183, the Hon'ble Supreme Court
observed that presumption provided in
Illustration (e) of Section 114 of the
Evidence Act is based on well-known
maxim of law "omnia praesumuntur rite
esse acta" (i.e., all acts are presumed to
have been rightly and regularly done).
The
Court
further
held
that
this
presumption is, however, one of the fact.
It is an optional presumption and can be
displaced by the circumstances, indicating
that the power lodged in an authority or
official has not been exercised in
accordance with law.

For rebutting the long standing entry
regarding the date of birth of an employee
in his service record is a difficult task for
the reason that the case of applicant has to
be considered in view of the provisions of
Section 35 and 114 of the Evidence Act.

31. 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
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3 All] Mohammad Ayub V. State of U.P. and others
917
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.

32. 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.

33. 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.

34. School should be a Government
one only then it can be held that date of
birth had been recorded by a public
servant in exercise of his official duty. No
such presumption would be there in
respect of Admission Register of the
private school. Entries therein shall
require corroboration. (Vide Rammmurti
v. State of Haryana, AIR 1970 SC 1029;
Brij Mohan Singh (supra).

35. 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.

36. Date of Birth, the Secondary
School Certificate is not to be taken to be
correct unless corroborated by parents-
who got the same entries made. (Vide
Biradmal Singhvi v. Anand Purohit, AIR
1988 SC 1796 and Tora Devi v. Sudesh
Choudhary, AIR 1998 Raj. 54 (D.B.).

37. It is settled proposition of law
that a party has to plead the case and
produce/adduced sufficient evidence to
substantiate his submissions made in the
petition and in case the pleadings are not
complete, the Court is under no obligation
to entertain the pleas. (Vide Bharat Singh
v. State of Haryana, AIR 1988 SC 2181;
M/s Larsen and Toubro Ltd. v. State of
Gujarat and ors., AIR 1998 SC 1608;
National
Building
Construction
Corporation v. S. Raghunathan and ors.,
AIR 1998 SC 2779; Ram Narain Arora v.
Asha Rani and ors., (1999) SCC 141;
Chitra Kumari v. Union of India and ors.,
AIR 2001 SC 1684, the Supreme Court
observed as under:-

"The findings, in the absence of
necessary
pleadings
and
supporting
evidence cannot be sustained in law."

38. Similar view has been reiterated
in Vithal N. Shetti and Anr. V. Prakash N.
Rudrakar and ors., (2003) 1 SCC 18.
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918 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
39. In 2003 AIR SCW 3775 =(2003)
2 UPLBEC -1780 (State of U.P. and
others Vs Smt. Gulaichi) the Supreme
Court has held in paras 8 and 9 as below:-

"8. 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, 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 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."

"9. 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. 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 fist corrected
consistently
with
the
appropriate
procedure." In the case of Government of
Andhra 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 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 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."

40. In Executive Engineer, Bhadrak
(R & B) Division, Orissa and Ors v.
Rangadhar Mallik (1993 Supp (1) SCC
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3 All] Mohammad Ayub V. State of U.P. and others
919
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, 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,
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.

41. It is settled proposition of law
that the date of birth entered in the
Service Book cannot be corrected at a
belated stage. Where the date of birth
entry remains in existence for a long time,
the same does not require to be disturbed.

42. In case of Union of India v.
Harnam Singh (1993 (2) SCC 162) the
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."

"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 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.