# Mohan Singh v. U.P. Rajya Vidyut Utpadan Ltd. and others

- **Citation:** (2012) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-05
- **Case number:** Special Appeal (Defective) No. 1 of 2012
- **Bench:** Syed Rafat Alam, C. J. Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-singh-v-u-p-rajya-vidyut-utpadan-ltd-and-others-42133
- **Pages:** 6

## Headnote

Shri P.K. Tripathi, Advocate

U.P.
Recruitment
of
Services
(Determination of Birth) Rules 1974Rule-2-correction
of
date
of
birthadmittedly the appellant is class 6th
passed-at
the
time
of
entering
in
services-date of birth recorded in Service
Book
as
05.11.1951
in
1980-on
06.09.2011 C.M.O. reported his age 45
years,
petitioner
appellant
never
objected the entry-for first time filed
Writ Petition-after a considerable periodsubsequent certificate issued by C.M.O.-
can not help in any manner-held at the
fag end of service carrier-can not be
allowed to question the entry made in
Service book.

Held: Para 18

In view of above, the law can be
summarized that normally the date of
birth entered in the service book is
sacrosanct and cannot be altered or
changed at the fag end of service or after
long lapse of time. However, in a very
exceptional circumstances, where it is
found
that
the
claim
is
irrefutable/incontrovertible
and
the
same
has
been
raised
within
the
limitation provided under the relevant
Rules
and
in
the
absence
of
any
limitation, within a reasonable time,
then the application for correction of
date of birth may be made. In the case in
hand, the appellant entered in service in
February, 1980 and as per service book,
his date of birth was entered as 5th
February, 1951 at the time of entry in
service. However, for the first time, the
appellant
filed
the
application
for
correction of date of birth in the month
of February, 1991. Thereafter, it appears,
he did not pursue the same and slept
over the matter. However, only when he
was served with the notice dated 6th
September, 2011 intimating that as per
the date of birth recorded in the service
book, he shall retire on 30th November,
2011 on attaining the age of 60 years, he
approached this Court by filing the writ
petition. No convincing explanation is
coming forth as to why he did not
approach the Court when his alleged
representation filed in the year 1991 was
not decided within a reasonable period
or time. If his application seeking
correction was not decided, then what
prevented him to approach the Court
within a reasonable time. Thus, in view
of the settled law that correction in the
date of birth cannot be made at the time
of retirement from service and also in
the absence of any clinching evidence
whereupon it could be held that his date
of birth is 1962 and further in view of
Rule 2 of the Rules of 1974 which
prohibits entertaining an application for
correction of date of birth where the
employee, at the time of entry in service,
was not high school passed and in that
event the date of birth mentioned in the
service record shall be deemed to be
correct date of birth of such employee,
the relief sought in the writ petition and
in this appeal cannot be granted.

## Text

1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others
1
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2012

BEFORE
THE HON'BLE SYED RAFAT ALAM, C. J.
THE HON'BLE RAN VIJAI SINGH, J

Special Appeal (Defective) No. 1 of 2012

Mohan Singh

 ...Appellant
Versus
U.P. Rajya Vidyut Utpadan Ltd. and
others

 ...Respondents

Counsel for the Appellant:
Shri Pranav Dubey, Advocate

Counsel for the Respondents:
Shri P.K. Tripathi, Advocate

U.P.
Recruitment
of
Services
(Determination of Birth) Rules 1974Rule-2-correction
of
date
of
birthadmittedly the appellant is class 6th
passed-at
the
time
of
entering
in
services-date of birth recorded in Service
Book
as
05.11.1951
in
1980-on
06.09.2011 C.M.O. reported his age 45
years,
petitioner
appellant
never
objected the entry-for first time filed
Writ Petition-after a considerable periodsubsequent certificate issued by C.M.O.-
can not help in any manner-held at the
fag end of service carrier-can not be
allowed to question the entry made in
Service book.

Held: Para 18

In view of above, the law can be
summarized that normally the date of
birth entered in the service book is
sacrosanct and cannot be altered or
changed at the fag end of service or after
long lapse of time. However, in a very
exceptional circumstances, where it is
found
that
the
claim
is
irrefutable/incontrovertible
and
the
same
has
been
raised
within
the
limitation provided under the relevant
Rules
and
in
the
absence
of
any
limitation, within a reasonable time,
then the application for correction of
date of birth may be made. In the case in
hand, the appellant entered in service in
February, 1980 and as per service book,
his date of birth was entered as 5th
February, 1951 at the time of entry in
service. However, for the first time, the
appellant
filed
the
application
for
correction of date of birth in the month
of February, 1991. Thereafter, it appears,
he did not pursue the same and slept
over the matter. However, only when he
was served with the notice dated 6th
September, 2011 intimating that as per
the date of birth recorded in the service
book, he shall retire on 30th November,
2011 on attaining the age of 60 years, he
approached this Court by filing the writ
petition. No convincing explanation is
coming forth as to why he did not
approach the Court when his alleged
representation filed in the year 1991 was
not decided within a reasonable period
or time. If his application seeking
correction was not decided, then what
prevented him to approach the Court
within a reasonable time. Thus, in view
of the settled law that correction in the
date of birth cannot be made at the time
of retirement from service and also in
the absence of any clinching evidence
whereupon it could be held that his date
of birth is 1962 and further in view of
Rule 2 of the Rules of 1974 which
prohibits entertaining an application for
correction of date of birth where the
employee, at the time of entry in service,
was not high school passed and in that
event the date of birth mentioned in the
service record shall be deemed to be
correct date of birth of such employee,
the relief sought in the writ petition and
in this appeal cannot be granted.

(Delivered by Hon'ble Syed Rafat Alam, C.J.)

1. This intra-court appeal, under the
Rules of the Court, arises from the order
of the learned Single Judge dated 3rd
2 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
November,
2011
dismissing
the
appellant's Writ Petition No. 62099 of
2011.

2. We have heard learned counsel
for the appellant.

3. The short question involved in
this appeal is as to whether the date of
birth recorded in the service book of an
employee can be modified or changed at
his instance after long lapse of time or at
the fag end of his service.?

4. It appears that the appellant was
appointed as a Contract Labour in the
month of February, 1980 in the Central
Store Division of Parkisha Thermal
Power Corporation at Pariksha in the
district of Jhansi (hereinafter referred to
as the 'Corporation'). His date of birth in
the service book was recorded as 5th
November, 1951. However, in the Identity
Card, his date of birth was mentioned as
6th November, 1962. The appellant
claims that when he came to know in
January 1991 that his date of birth in the
service record is wrongly recorded as 5th
November
1951
in
place
of
6th
September,
1962,
he
moved
an
application on 15.02.1991 for correction
of his date of birth. He further claims that
pursuant to the said application, the
authority
concerned
assured
that
necessary correction would be made in
the service record, however, nothing was
done. Thereafter, the appellant submitted
various representations/reminders but all
went in vain. The appellant, however, did
not pursue the matter. Thereafter, the
appellant was served with the notice dated
6th September, 2011 intimating him that
as per service record, wherein his date of
birth is mentioned as 5th November,
1951, he shall retire on 30th November,
2011 on completion of 60 years of age.
The aggrieved appellant, therefore, filed
the aforesaid writ petition for quashing
the notice dated 6th September, 2011 on
the ground, inter-alia, that his real date of
birth is 6th September, 1962 and as far
back as in 1991, he made a request for
correction of his date of birth but without
correcting the same or disposing of his
application, he has been served with the
notice, impugned in the writ petition. The
learned Single Judge, in the order has
taken note of the fact that there is no
denial by the appellant that his date of
birth in the service book is recorded as 5th
November, 1951, hence, he will attain the
age of superannuation on 30th November,
2009 and his claim for continuance in
service on the basis of the date of birth
recorded in his Identity Card cannot be
allowed. The learned Single Judge,
therefore, relying on a judgment of Apex
Court in the case of Burn Standard Co.
Ltd. & Ors. Vs. Shri Dinabandhu
Majumdar & Anr., JT 1995 (4) SC 23,
wherein it has been held that the date of
birth cannot be allowed to be changed at
the verge of retirement, dismissed the writ
petition. Hence, this appeal.

5. Learned counsel for the appellant
vehemently contended that the learned
Single Judge did not appreciate the
submissions and the necessary facts for
adjudication of the case and, therefore,
fell in error in dismissing the writ petition.
The contention is that the appellant, when
came to know that his date of birth is
wrongly recorded as 5th November, 1951,
immediately filed the representation for
its correction on 15.02.1991, which
remained un-disposed by the authorities
concerned despite several reminders.
Learned
counsel
submits
that
the
certificate issued by the Chief Medical
1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others
3
Officer, Jhansi, wherein his age has been
determined as 45 years on the date of
issuance
of
such
certificate,
i.e.
06.09.2011, has also not been taken into
account by the learned Single Judge. He
further submits that the appellant, in the
representation, has claimed that in the
school certificate as well as the medical
certificate, his date of birth is recorded as
6th September, 1962 and, therefore, his
date of birth entered in his service record
is required to be corrected.

6.

We
have
considered
the
submissions.

7. The appellant has asserted his
claim mainly on the basis of the
certificate issued by the Chief Medical
Officer, Jhansi and also on the basis of the
date of birth mentioned in the mark sheet
of class six. Though, in paragraph 7 of the
writ petition, it has been stated that the
appellant was asked to be examined by
the Chief Medical Officer, Jhansi but the
certificate issued by him on 06.09.2007
does not indicate that he was sent for
medical examination for determination of
his age by the Department/Corporation.
The mark sheet of class six has also not
been enclosed with the writ petition,
though it has been stated that it is
enclosed as Annexure-1 to the writ
petition. It further transpires that after
making representation in the year 1991,
the appellant though claims to have
submitted various reminders but sat over
the matter and did not pursue further and
it was only when the impugned notice
informing him his date of retirement, he
filed the writ petition.

8. The Apex Court has repeatedly
held that on the strength of representation,
stale claim should not be revived by the
Courts by way of passing an order to
decide the representation. In C. Jacob Vs.
Director of Geology & Mining & Anr.,
AIR 2009 SC 264, the Apex Court has
observed as under:-

"8. When a direction is issued by a
court/tribunal to consider or deal with the
representation,
usually
the
directee
(person directed) examines the matter on
merits, being under the impression that
failure to do may amount to disobedience.
When an order is passed considering and
rejecting the claim or representation, in
compliance with direction of the court or
tribunal, such an order does not revive the
stale claim, nor amount to some kind of
`acknowledgment of a jural relationship'
to give rise to a fresh cause of action.

10. We are constrained to refer to the
several facets of the issue only to
emphasize the need for circumspection
and care in issuing directions for
`consideration'. If the representation is on
the face of it is stale, or does not contain
particulars to show that it is regarding a
live claim, courts should desist from
directing `consideration' of such claims."

9. In the instant case, the petitionerappellant even did not bother to approach
this Court for deciding his representation
for correction of his date of birth prior to
the notice of retirement given in the year
2011.

10. Learned counsel for the
respondent-Corporation submitted that the
provisions of the U.P. Recruitment of
Service (Determination of Date of Birth)
Rules, 1974 (hereinafter referred to as the
'Rules of 1974') applies to the Corporation
and its employees and the date of birth for
4 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the purposes of retirement would be
determined as per Rules of 1974.

11. To appreciate the controversy, it
would be useful to refer to the relevant
Rule. Rule 2 of the Rules of 1974, which
was amended by first amendment in the
year 1980 and is relevant for the present
controversy, reads as under:-

"2. Determination of correct date
of birth or age.- The date of birth of a
Government servant as recorded in the
certificate of his having passed the High
School or equivalent examination at the
time of his entry into the Government
service, or where a Government servant
has not passed any such examination as
aforesaid or has passed such examination
after joining the service, the date of birth
or the age recorded in his service book at
the time of his entry into the Government
service shall be deemed to be his
correct date of birth or age, as the case
may be, for all purposes in relation of
his service, including eligibility for
promotion, superannuation, premature
retirement benefits, and no application
or representation shall be entertained for
correction of such date or age in any
circumstances whatsoever."

12. From a perusal of the above
Rule, it transpires that if a person enters
into service after passing the High School
examination, then the date of birth
recorded in the High School certificate
shall be deemed to be his correct date of
birth. However, in case, the employee has
entered into service before passing the
High School examination, then the date of
birth recorded in the service book shall be
deemed to be his correct date of birth. The
said Rule also provides that no application
or representation shall be entertained for
correction of such date or age in any
circumstances
whatsoever.
Thus,
in
relation to correction of date of birth, a
legal fiction has been made which means
that the date of birth recorded in either of
the circumstances referred to under Rule 2
of the Rules of 1974 shall be deemed to
be correct for all purposes particularly for
the purpose of determining the age of
retirement.
The
effect
of
deeming
provision/legal
fiction
has
been
considered time and again. The Apex
Court in the case of Sant Lal Gupta &
Ors. Vs. Modern Cooperative Group
Housing Society Ltd. & Ors., (2010) 13
SCC 336, has observed as under:-

"... It is the exclusive prerogative of
the legislature to create a legal fiction
meaning thereby to enact a deeming
provision for the purpose of assuming
the existence of a fact which does not
really exist. ..."

13. Further reference may be made
to the decision of the Apex Court in
Manorey alias Manohar Vs. Board of
Revenue (U.P.) & Ors., (2003) 5 SCC
521.

14. Taking note of the dictum of the
Apex Court as well as Rule 2 of the Rules
of 1974, it is abundantly clear that if a
person has entered into service without
passing the High School examination,
then the date of birth recorded in his
service book shall be deemed to be
correct and in case the employee has
entered into service after passing the High
School examination, the date of birth
recorded in the High School certificate
shall be deemed to be correct.

15. In the case in hand, admittedly,
the appellant entered in service without
1 All] Mohan Singh V. U.P. Rajya Vidyut Utpadan Ltd. and others
5
passing the High School examination,
therefore, the date of birth recorded in the
service book shall be deemed to be
correct and in view of the legal fiction
created under Rule 2, no application or
representation for its correction could be
entertained.

16. That apart, the appellant
approached this Court seeking correction
in the date of birth at the fag end of his
service and filed the writ petition in the
month of October, 2011, just a month
prior to the date of his superannuation, as
he was due to retire in the month of
November, 2011. It is settled legal
position that the date of birth cannot be
allowed to be corrected at the fag end of
service of an employee. Reference may be
made to the judgment of the Apex Court
in Burn Standard Co. Ltd. (supra), and
State of Madhya Pradesh & Ors. Vs.
Premlal Shrivas, (2011) 9 SCC 664.

17. However, it is true that in certain
extraordinary circumstances, an employee
can claim correction in the date of birth
provided he has got some irrefutable
proof relating to his date of birth as
different to that recorded earlier in his
service book and satisfies that there has
been real injustice to him and the
correction sought in the date of birth is as
per the procedure prescribed and within a
reasonable time fixed by any rule or
order. However, if there is no rule or
order prescribing the period within which
such application is to be filed, then such
application must be filed within a
reasonable period or time. Reference may
be made to the judgments of the Apex
Court in Union of India Vs. Harnam
Singh, (1993) 2 SCC 162; State of
Gujarat & Ors. Vs. Vali Mohd.
Dosabhai Sindhi, (2006) 6 SCC 537,
and Punjab and Haryana High Court
at Chandigarh Vs. Megh Raj Garg &
Anr., AIR 2010 SC 2295.

18. In view of above, the law can be
summarized that normally the date of
birth entered in the service book is
sacrosanct and cannot be altered or
changed at the fag end of service or after
long lapse of time. However, in a very
exceptional circumstances, where it is
found
that
the
claim
is
irrefutable/incontrovertible and the same
has been raised within the limitation
provided under the relevant Rules and in
the absence of any limitation, within a
reasonable time, then the application for
correction of date of birth may be made.
In the case in hand, the appellant entered
in service in February, 1980 and as per
service book, his date of birth was entered
as 5th February, 1951 at the time of entry
in service. However, for the first time, the
appellant
filed
the
application
for
correction of date of birth in the month of
February, 1991. Thereafter, it appears, he
did not pursue the same and slept over the
matter. However, only when he was
served
with
the
notice
dated
6th
September, 2011 intimating that as per the
date of birth recorded in the service book,
he shall retire on 30th November, 2011 on
attaining the age of 60 years, he
approached this Court by filing the writ
petition. No convincing explanation is
coming forth as to why he did not
approach the Court when his alleged
representation filed in the year 1991 was
not decided within a reasonable period or
time. If his application seeking correction
was not decided, then what prevented him
to approach the Court within a reasonable
time. Thus, in view of the settled law that
correction in the date of birth cannot be
made at the time of retirement from
6 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
service and also in the absence of any
clinching evidence whereupon it could be
held that his date of birth is 1962 and
further in view of Rule 2 of the Rules of
1974 which prohibits entertaining an
application for correction of date of birth
where the employee, at the time of entry
in service, was not high school passed and
in that event the date of birth mentioned
in the service record shall be deemed to
be correct date of birth of such employee,
the relief sought in the writ petition and in
this appeal cannot be granted.

19. In view of above, we do not find
any fault in the order of the learned Single
Judge.

20. The appeal, being without merit,
stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.01.2012

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Misc. Single No. - 4 of 1994

Abdul Atiq and another
 ...Petitioner
Versus
Sub Divisional Magistrate and others

 ...Respondents

Counsel for the Petitioner:
Sri S.C.Sitapuri
Sri V.Bhatia

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226Demand of additional stamp duty-no
allegation of concealment or fraud by
petitioner-petition pending since 1994No counter affidavit filed-facts remained
un-contradicted-held-mere assumptionsstamp duty can not be imposed.

Held: Para 5

It is not the case of the respondents that
the land in question was under valued.
For imposing liability for payment of
additional stamp duty, it would be the
duty of the respondents to categorically
show that there was some concealment
made by the petitioner at the time of
execution of the sale deed. On mere
presumption, stamp duty cannot be
imposed after valuing the constructions.
Case law discussed:
[2007 All.C.J. 718]

(Delivered by Hon'ble Rajiv Sharma,J. )

1. Heard.

2. Counsel for the petitioner says
that the petitioner had purchased a
house,which consists of room and a
Verandahs in district Biswan Sitapur of
which sale deed was executed on 3.2.1992
and had also paid a total sum of Rs.
5380/- as stamp duty. Thereafter all of a
sudden, the opposite party no.1-Sub
Divisional
Officer,
Stamp
Collector,
Biswan passed an order requiring the
petitioner to make good the deficiency in
the stamp duty and also imposed ten times
penalty.

3. It has been vehemently contended
that neither any notice before passing of
the impugned order was given or actually
served upon by the petitioner either by the
opposite party no.1 or by the Tehsildar,
who is said to have conducted inquiry in
the matter. Therefore, the impugned order
is in breach of the provisions of natural
justice apart from being bad in law as the
penalty is excess than the prescribed
under
the
relevant
provisions.