Holding

The service book entry of 1‑Sept‑1930 is conclusive, the High Court erred, and the employee need not refund salary beyond superannuation, though that period will not be reckoned towards his retiral benefits.

Summary

The State of Uttar Pradesh appealed a High Court order that held the employee Shivnarain Upadhyaya's date of birth to be 1‑Sept‑1939, based on school records, and ordered him to refund salary paid after his superannuation. The Supreme Court examined the service book, which showed the date of birth as 1‑Sept‑1930, a record the employee had signed in 1977 and which was never contested during his service. The Court held that the service book entry is conclusive, the High Court erred in saying it was not produced, and the employee is not required to refund the salary received beyond the actual superannuation date, though that period will not be counted towards his retirement benefits. The Court emphasized that correction of date of birth must be sought within a reasonable time and with irrefutable proof, to avoid injustice to junior employees awaiting promotion. The appeal was allowed.

Issues considered

The correctness of the date of birth recorded in the service book versus the employee's claim of a later birth date.
Whether the High Court correctly held that the service book was not produced.
Whether a public servant can seek correction of date of birth after retirement and after a delay.
Whether the employee must refund salary received beyond the actual superannuation date and whether that period counts towards retirement benefits.

Legislation cited

Subjects

service lawdate of birth correctionservice recordsuperannuationpublic servantretirement benefitsadministrative law

Judgment

STATE OF UTTAR PRADESH AND ANR. A
v.
SHIVNARAINUPADHYAYA

JULY 28, 2005

[ARIJITPASAYAT ANDH.K. SEMA,JJ.] B

Service Law:

Date of Birth of Public Servant in service record-Correction-claim
of-Held: For such a claim public servant has to make out a clear case on C
the basis of clinching materials within reasonable time as provided in the
Rules-Court must be satisfied that there has been real injustice to the public
servant-It has to also keep in mind the case of junior persons waiting for
promotions-On facts, on basis ofservice book produced and other documents,
date of birth of the employee is as recorded in service book, hence High D
Cour~ erred in holding to the contrary-Furthermore, salary received by ·
employee for the period beyond the actual date of superannuation not to be
refunded-However, it will not be reckoned towards his retrial benefit.

In the service records the respondent-employee's date of birth was given
as 1.9.1930. Respondent attained superannuation on 30.9.1990 having E
completed 60 years of age. However, by mistake the respondent worked for
three months more and was paid for it. Thereafter, order was passed and the
respondent was directed to refund the a~10unt. Respon_dent challenged the
order on the ground that his date' of birth-was 1.9.1939 as per the school
records and was prematurely retired. High Court allowed the writ petition
holding that date of birth was 1.9.1939 as the State failed to produce service F
records. Hence the present appeal.

Allowing the appeal, the Court

. HELD: 1.1. In public service with entering into the service, the date of
superannuation or retirement, is also fixed. That is why the date of birth of G
the employee is recorded in the relevant register or service book. This is the
practice prevalent in all services, because every service has fixed the age of
retirement, and it is necessary to maintain the date of birth in the service
records. Many public servants on the eve of their retirement are challenging
847 H
848 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A their date of birth in their service records. 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
application for correcting date of birth can be entertained. The sole object of
B such rules is that such application should not be made or entertained after
decades, especially on the eve of superannuation of such public servant.
[851-A-E)

1.2. An application for correction of the date of birth should not be dealt
C with by the Courts, Tribunal or the High Court keeping in view only the public
servant concerned. 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. This is certainly an important and relevant aspect, which cannot be
lost sight of by the Court or the Tribunal while examining the grievance of a
D public servant in respect of correction of his date of birth. As such, unless a
clear case on the basis of clinching materials which can be held to be
conclusive in nature, is made out by the public servant and that too within a
reasonable time as provided in the rules governing the service, the Court or
the Tribunal should not issue a direction or make a declaration on the basis
E of materials which make such claim only plausible. 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 <!r order, otherwise within a reasonable time. Whenever any such question
arises the onus is on the applicant to produce the evidence in support of such
F claim, which may amount to irrefutable proof relating to his date of birth. 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 date of birth in the service
books. By this process, even if ultimately their applications are dismissed, by
virtue of interim orders, they continue for months, after the date of
G superannuation. Therefore, the court or the tribunal must be slow in granting
an interim relief or continuation in service, unless primafacie evidence of
unimpeachable character is produced because if the public servant succeeds,
he can always be comp~nsated, but if he fails, he would have enjoyed
undeserved benefit of extended service and thereby caused injustice to his
H immediate junior. [852-G, H; 853-A-G]
STATEOFU.P. v. SHIVNARAINUPADHYAYA[PASAYAT,J.) 849
1.3. High Court has clearly erred in holding that the service book was A
not produced. Along with the affidavit a copy of original service book was filed.
As is clearly evident from the copy of the service book, more particularly the
respondent-employee had on 27.4.1977, signed the service book which
contained his date of birth as per Christian era. Additionally, the documents
referred to indicated the date of birth to be 1.9.1930 which were also not
challenged at any time. Therefore, High Court e~red in holding that the date B
of birth of the respondent-employee was 1.9.1939, contrary to what has been
recorded in the service book. Since the respondent-employee had rendered
service till the order dated 31.1.1991 was passed, it would not be equitable to
direct refund of salary received by him beyond the actual date of
superannuation. However, the period beyond the actual date of superannuation C
should not be reckoned towards his retiral benefits. [854-C, D, E, F)

State ofAssam v. Daksha Prasad Deka, [1970) 3 SCC 624; Government
of Adhra Pradesh v. M Hayagreev Sarma, [1990) 2 SCC 682; Executive
Engineer, Bhadrak (R&B) Division, Orissa and Ors. v. Rangadhar Mallik,
[1993) Supp. 1 SCC 763; Union of India v. Harnam Singh, [1993) 2 SCC D
162; The Secretary and Commissioner Home Department and Ors. v. R.
Kirubakran, JT (1993) 5 SC 404; State of Tamil Nadu v. T. V. Venugopalan,
[1994) 6 SCC 302; State of Orissa and Ors. v. Ramanath Patnaik, [1997) 5
SCC 181; State of UP. and Ors. v. Gulaichi (Sm!), (2003) 6 SCC 483 and
State of Punjab and Ors. v. S.C. Chadha, (2004) 4 SCC 394, referred to.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5489 of2003.

From the Judgment and Order dated 11.10.2002 of the Allahabad High
Court in C.M.W.P. No. 7686of1991.

Pramod Swarup and Jatirider Kumar Bhatia for the Appellants. F

Varinder Kumar Sharma (NP) for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASA YAT, J. State of Uttar Pradesh and Executive Engineer, G
Sharda Sahayak Khand-36, Jaunpur, U.P. calls in question legality of the
judgment rendered by a Division Bench of the Allahabad High Court holding
that the respondent's. date of birth was 1.9.1939 and not I.9. J930 as claimed
by the appellant-State.

H
850 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.
~

A Factual background in a nutshell is as follows: .-...
The respondent-employee was engaged as Class IV employee on
2.1.1972. In the service records the date of birth was indicated to be 1.9.1930.
By order dated 31.1.1991 the Executive Engineer-appellant no. 2 intimated the
respondent-employee that he had superannuated on 30.9.1990 having
B completed 60 years of age. It was indicated that by mistake he was allowed
to work for three months more and paid, and, therefore, direction was given
to refund the amount. The said order dated 31.1.1991 was challenged by the
respondent in a writ petition. His stand was that according to the school
records his date of birth was 1.9.1939 and without any opportunity he had

c been pre-maturely retired nine years earlier. It appears that the High Court
directed production of the service records. By the impugned order dated
11.10.2002 the High Court allowed the writ petition holding that the State had
failed to produce the service record in spite of opportunities granted and,
therefore, the petitioner's stand that his date of birth was 1.9.1939 was accepted.

D In support of the appeal, learned counsel for the appellant submitted
that the High Court's view that service record was not produced is clearly
erroneous. On the contrary along with affidavit dated 19.9.2002, copy of the
service book of the respondent-employee was filed. The High Court did not
./ take note of the said record. The document on which the respondent-employee
placed reliance was issued on 27 .2.1991, after the order dated 31.1.1991 was ~
E issued. A copy thereof is annexed as Annexure P-4 to the present appeal.
According to learned counsel for the appellant the same makes very interesting
reading. Most of the columns requiring information have been indicated to
be nil. The respondent had himself signed in the service book on 27.4.1977
where his month and year of birth were recorded to be September, 1930. "
F Additionally, in the seniority list of Works Supervisor dated 2.9.1983 the
respondent-employee was shown as Chowkidar and his date of birth was
indicated to be 1.9.1930. In the group insurance scheme document dated
6.11.1985, and document relating to surplus staff (Letter No. 1153/Sh.S.Kh.36/
W-3 dated 10.6.1987 same is the position.

-G According to learned counsel for the appellant these clearly demolish
the respondent's claim about his birth. At no point of time the respondent-
employee had questioned the correctness of the entry made in the service
book. After the order was passed on 31. 9 .1991 for the first time he produced
a document, which was issued after the order dated 31.1.1991. All these
according to him render High Court's judgmeni unsustainable.
H
1
~
-
STATEOFU.P. v. SHIV NARAIN UPADHYAYA [PASAYAT, J.] 851
There is no appearance on behalf of the respondent in spite of the A
service of notice.

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 B
all services, because every service has fixed the age of retirement, and 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
waking up from their supine slumber raise a dispute about their service
records, by either invoking the jurisdiction of the High Court under Article C
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.

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 D
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 E
after decades, especially on the eve of superannuation of such public servant.
In the case of State ofAssam 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 first F
corrected consistently with the appropriate procedure." In the case of
Government ofAndhra Pradesh v. M Hayagreev Sarma, [ 1990] 2 SCC 687 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 G
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:
H
852 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

.A "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
underthe rules prior to the commencement of 1984 Rules, he will not
B be entitled for alteration of his date of birth."

In Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v
Rangadhar Mal/ik, (1993) Supp. I SCC 763, Rule 65 of the Orissa General
Finance Rules, was examined which provides that representation made for
C 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 regi~ter. 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
D 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
E respondent did· not take any step nor made any representation for correcting
his date of birth till September 9, 1986. In case of Union of India v. Harnam
.Singh, (1993] 2 SCC 162 the position in law was again re-iterated 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
F 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
G 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
H
STATEOFU.P. v. SHIVNARAINUPADHYAYA[PASAYAT,J.} 853

reaction, inasmuch as others waiting for years, below him for their respective A ·
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. B
This is certainly an important and relevant 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 clinching materials which can· be held to be conclusive
in nature, is made out by the respondent and that too within a reasonable time C
as provided in the rules governing the service, the Court or the Tribunal
should not issue a direction or make a declaration on the basis of materials
' which make such claim only plausible. Before any such direction is issued or
declaration made, 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, D
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 within at least a reasonable time. 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 E
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 date of birth in the service books. By this process,
it has come to the notice of this Court that in many cases, even if ultimately F
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 or 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, G
he would have enjoyed undeserved benefit of extended service and thereby
caused injustice to his immediate junior.

The position was succinctly stated by this Court in_the above terms in
The Secretary and Commissioner Home Departinenr and Ors. v. R.
Kirubakaran, JT (1993) 5 SC 404. H
854 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.

A As observed by this Court in State of Tamil Nadu v. TV. Venugopalan,
[1994] 6 SCC 302 and State ofOrissa and Ors. v. Ramanath Patnaik, [1997]
5 SCC 181 when the entry was made in the service record and when the
employee was in service he did not make any attempt to have the service
record corrected, any amount of evidence produced subsequently is of no
B consequence. The view expressed in R. Kirubakaran 's case (supra) was
adopted.

These aspects were also reiterated in State of UP. and Ors. v. Gulaichi
(Smt.), [2003] 6 SCC 483 and State of Punjab and Ors. v. S.C. Chadha, [2004]
3 sec 394.

c The High Court has clearly erred in holding that the service book was
not produced. As the records reveal along with the affidavit a copy of original
service book was filed. The documents have also been annexed in the present
appeal. As is clearly evident from the copy of the service book, more particularly
the respondent-employee had on 27.4.1977, signed the service book which
D contained his date of birth as per Christian era. Additionally, the documents
referred to above indicated the date of birth to be 1.9.1930. This was also not
challenged at any time.

Above being the position the High Court was clearly in error in holding
that the date of birth of the respondent-employee was 1.9.1939, contrary to
E what has been recorded in the service book. We find that the respondent-
employee had rendered service till the order dated 31.1.1991 was passed. It
would not be equitable to direct refund of salary received by him upto
31.1.1991 beyond the actual date of superannuation i.e. 30.9.1990. However,
the period beyond the actual date of superannuation i.e. from 30.9.1990 to
F 3 p .1991 shall not be reckoned towards his retiral benefits.

The appeal is allowed to the aforesaid extent with no order as to costs.

N.J. Appeal allowed.