STATE OF PUNJABversusMOHINDER SINGH

                    _,,,..,.                                                      1-




A                              ST A TE OF PUNJAB
                                        v.
                               MOHINDER SINGH

                               MARCH 14, 2-005

B              [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]


          Evidence Act, 1872-Section 32 Clause (5)-Date of birth-Proof of-
    Horoscope-Evidentiary value of-Held : Horoscope is a weak piece of
    evidence to prove age of a person and cannot be relied upon unless its
C   authenticity is proved by cogent evidence-Cannot be given primacy over the
    school leaving certificate-Service Law.

          At the time of appointment as Patwari, respondent disclosed his
    date of birth to be 1.10.34. On a complaint, an enquiry was conducted
    and it was found that his actual date of birth wa~ 25.11.31. Thereupon,
D   Deputy Commissioner dismissed him from service. He unsuccessfully
    preferred appeal before Commissioner. Thereafter, Respondent filed suit
    for declaration that the correct date of birth is the one recorded in
    service book i.e. 1.10.34 and in support submitted his horoscope. Trial
    Court dismissed the suit holding that there was .no ground to interfere
E   with the orders of Deputy Commissioner. First appellate court allowed
    the appeal accepting the date of birth as mentioned in the horoscope.
    High Court dismissed the Second appeal on the ground that no substantial
    question of law was involved.

          In appeal to this court, appellant contended that school register and
F   the connected records were produced which showed that the date of
    birth was 25.11.1931. The evidentiary value of these documents was
    discarded by the first appellate court primarily on the ground that a
    horoscope was produced according to which the date of birth was               •
    1.10.1934.
G        Allowing the appeal, the Court

         HELD : 1. The school records have more probative value than a
    horoscope. Where no other material is available, the horoscope may be
    considered but subject to its authenticity being established. These aspects
H                                      758
                   ST ATE OF PUNJAB v. M. SINGH                    759

were not considered by the first appellate court and the High Court. The A
High Court was, therefore, not justified in dismissing the Second Appea,I
by observing that there was no substantial question of law involved.
                                                               (764-D-E)

     2. Respondent claimed that both school leaving certificate and the
horoscope were produced and the date of birth was recorded by relying B
on the horoscope. It has not been explained as to how varying dates
remained and why no steps were taken to get the school records corrected.
On enquiry, the school leaving certificate was found to be forged one.
There was no effort to reconcile the discrepancy in the so-called horoscope
and the school record as taken note of by the Trial Court. The first C
Appellate Court took a different view without any plausible reason.
                                                          (762-G-H; 763-B)

      3. Horoscope is a very weak piece of material to prove age of a
person. In most cases, the maker of it may not be available to prove that
it was made immediately after the birth. A heavy onus lies on the person D
who wants to press it into service to prove its authenticity. In fact, a
horoscope to be treated as evidence in terms of Section 32 Clause (5),
Evidence Act, 1872, must be proved to have been made by a person
having special means of knowledge as regards authenticity of a date,
time etc. mentioned therein. No evidence was led by the respondent to
prove authenticity of the same. In any event the same was not to be given E
primacy over the school leaving certificate. It was not shown as to how
the entry therein was wrong. The onus was on the respondent to prove
that the same was not correct, which was not discharged. (763-E-F, C-D)
     Ram Narain Vallia v. Monee Bibi, ILR 9 Cal. 613; Mst. Biro v. Atma
Ram, AIR (1937) PC 101 and Salish Chandra Mukhopadhya v. Mohendra         F
Lal Pathak, ILR 97 Cal. 849, relied on.

      4. The statement contained in the admission register of the school
as to the age of an individual on information supplied to the school
authorities by the father, guardian or a close relative, is more authentic
evidence under Section 32 Clause (5) unless it is established that it is G
inherently improbable. The time of one's birth relates to the
commencement of one's relationship by blood and a statement therefore
of one' age made by a person having special means of knowledge, relates
to the existence of such relationship as that referred to in Section 32
Clause (5). Oral evidence may have utility if no documentary evidence is B
/.                          SUPREME COURT REPORTS                     (2005] 2 S.C.R.

A forthcoming. Even the horoscope cannot be reliable because. it can be
    prepared at any time to suit the need of a particular situation. Entires in
    the school register and admission form regarding date of birth constitute
    good proof of age. (763-G-H, 764-A, B-C)

            Uttam Chandra v. State of Rajasthan, (1982) 2 SCC 202, relied on.
B
            CIVIL APPELLATE JURISDICTION : ~ivil Appeal No. 1730 of
    2005.

         From the Judgment and Order dated 14.. 7.2003 of the Punjab and
    Haryana High Court in R.S.A. No. 1898 of 2003.
c        Atul Nanda, A.A.G. for the State of Punjab, Arun K. Sinha for the
    Appellant.

          Nidhesh Gupta, Vinod Shukla and Ms.S. Janani, for the Respondent.

            The Judgment of the Court was delivered by
D
            ARIJIT PASAYAT, J. Leave granted.

          Appellant-State calls in question legality of the judgment rendered by
    a learned Single Judge of the Punjab and Haryana High Court dismissing the
    Second Appeal filed by it under Section I 00 of the Code of Civil Procedure,
E   1908 (in short the 'Code') holding that no question of law was involved.

          The background facts are as under :

           The respondent (hereinafter referred to as the 'plaintiff) was appointed
    as a Patwari on 5.2:1958. At the time of appointment he disclosed his date
F   of birth to be I. I 0. I 934. Complaints were received and preliminary enquiry
    was conducted and it was held that his actual date of birth is 25.11.193 l. A
    suit was filed by the respondent for declaration to the effect that his date of
    birth as recorded in service book i.e. I. I 0.1934 is the correct date of birth and
    plaintiff is entitled to all benefits and privileges which would have accrued
    to him had he continued on that basis till the date of superannuation i.e.
G   30.9.1992 and for setting aside the punishment awarded for allegedly
    manipulating records and disclosing wrong date of birth.

          Following issues were raised before this Court :

             "I. Whether the High Court was justified in observing that no
H            substantial question of law arises in the second appeal, whereas the
             STATE OF PUNJAB v. M. SINGH (PASAYAT, .I.)                   761

       substantial question of law was/is whether interpretation of the A
       expression "Government" in Rule 2.5 Note I of Punjab Civil Service
       Rules is not competent/appointing authority, who is the Deputy
       Commissioner in this Case?

        2. Whether as per Rule 2.5 Note I of Punjab Civil Service Rules, the
        date of birth entered in the Service Book of an employee cannot be B
        changed by the Competent Authority after conducting a regular enquiry
      · and giving proper opportunity of hearing to the said employee?

       3. Whether submission of wrong date of birth at the time of joining
       service amounted to misconduct on the part of the said employee?

       4. Whether the date of birth entered in the matriculation certificate
                                                                                 c
       shall not prevail over the date of birth mentioned in the horoscope?

       5. Whether entering a correct date of birth in service book after valid
       enquiry qua the correct date of birth of the Respondent can be
       challenged, which was entered after affording proper opportunity of D
       hearing and which is final and never challenged as bad?

       6. Whether the respondent, who is literate and was qualified to be
       appointed as Patwari was supposed to know the admissibility of
       document in respect of date of birth, did not tamper with documents
       by submitting a wrong date of birth i.e. 1.10.1934 instead of E
       25. I 1.1931?

       7. Whether a long span of 33 years ought to be allowed to come in
       the way to correct a false entry regarding date of birth made on
       wrong and tampered documentation of an employee, which
       undoubtedly being the date of birth shall seriously affect the services   F
       of the colleagues of the said employees in the same cadre?"

       Learned Civil Judge (Senior Division) dismissed the suit holding that
there was no ground to interfere with the orders of the Deputy Commissioner
who, on the basis of the enquiry conducted, had observed that the date of
birth was 1931 and not 1934 and if he had given actual date of birth he would G
have been over age and would not have been eligible for the post of patwari.
The enquiry report of the Additional Deputy Commissioner was submitted on
21.5.1985. The Sub-Divisional officer, Sangrur who hold the enquiry held
that the charge regarding change of date of birth from 25.11.1931 to 1.10.1934
was proved. The Deputy Commissioner dismissed the respondent from service H
     762                   SUPREME COURT REPORTS                     [2005) 2 S.C.R.

A with effect from 27.7.1988 after granting opportunity of hearing. An appeal
    was filed before the Commissioner who by order dated 18.6.1990 dismissed
    the same. He, however, reduced the punishment by observing that ends of
    justice would be met if he is reduced by one stage in his running grade with
    effect from the date on which he was charge-sheeted till retirement and he
B   will not earn any increment during ~he period of this reduction till the date
    on which respondent was superannuated from service.

           Against the order passed by the trial court an appeal was preferred
     before the District Judge who held that the materials on record do not show
     that there was any change in the true date of birth and the clai~ed date of
C    birth i.e. I. I 0.1934 is the actual date of birth as recorded. Second Appeal
     filed by the appellant as noted above was dismissed on the ground that no
     substantial question of law was involved.

          Learned counsel for the appellant submitted that the approach of the
    fast Appellate Court is not proper. On the basis of materials on record and
D   after enquiry it was held that the date of birth was 25 .11. 1931 and not on
    1.10.1934 as claimed. School register and the connected records were produced
    which clearly show that the date of birth was 25.11.1931. The evidentiary
    value of these documents was discarded by· the first Appellate Court primarily
    on the ground that a hqroscope was produced according to which the date of          .....,;'
    birth was 1.10.1934.
E
            In response, learned counsel for the respondent submitted that on
      evaluation of evidence the first Appell.ate Court held that the date of birth
    . was 1.1.0.1934 and when a horoscope is available merely because a different
      date is inciicated in the school record same is of no consequence.

F          During the course of hearing of the matter we directed the respondent
    to produce the original school leaving certificate which was sought to have
    been brought from the Government High Schoo!, Gujjarwal. It was filed by
    the respondent. A perusalthereof shows that the date of birth has been clearly
    indicated to be 25.11.1.931. Stand of the respondent as noted above was that
G   the date of birth was entered iri the service record by relying on the horoscope:
    It is to be noted that respondent claimed that both school leaving certificate·
    and the horoscope were produced and the date of birth was recorded by
    rely.ing .on the horoscope. It has not been explained as to how varying dates
    remained. ~f according to the respondent, the horoscope reflected the actual
    state of affairs it has not been explained as to why no steps were taken to get
H   the school records co1Tected. The first Appellate Court was not justified in its
-
                  STATE OF PUNJAB v. M. SINGH [PASAYAT . .I.]                     763
    conclusion that there was no material adduced by the present appellant to A
    substantiate its stand regarding the date of birth. One thing further significant
    is that a school leaving certificate was produced at the time of appointment.
    On enquiry it was found that the s.ame was forged one. Apart from the fact
    that there was no effort to reconcile the discrepancy in the so-called horoscope
    and the school record is a factor which has rightly been taken note of by the B
    Trial Court. Without any plausible reason the first Appellate Court took a
    different view.

           In terms of Section 32, clause 5 of the Indian Evidence Act, 1872 (in
    short the 'Evidence Act'), the evidentiary value of a horoscope has to be
    considered. No evidence was led by the respondent to prove authenticity of C
    the same. In any event the same was not to be given primacy over the school
    leaving certificate. It .was not shown as to how the entry therein was wrong.
    The onuc; was on the respondent to prove that the same was not correct,
    which was not discharged. Two photostat copies of the school leaving
    certificate were produced before the enquiry officer. He compared them and
    found that even to naked eye change of figure "31" to "34" was visible. D
    Interestingly in the said copies the date of birth was indicated even after the
    change to be 25.11.1934 and not l.10.1934 as claimed.

           Horoscope is a very weak piece of material to prove age of a person.
    In most cases, the maker of it may not be available to prove that it was made
    immediately after the birth. A heavy onus lies on the person who wants to             E
    press it into service to prove its authenticity. In fact, a horoscope to be treated
    as evidence in terms of Section 32 Clause (5) must be proved to have been
    made by a person having special means of knowledge as regards authenticity
    of a date, time etc. mentioned therein. In that context horoscopes have been
    held to be inadmissible in proof of age. (See Ram Narain Vallia v. Monee              F
    Bibi, (ILR 9 Cal.613), Mst. Biro v. Atma Ram, AIR (1937) PC 101 and Satish
    Chandra Mukhopadhya v. Mohendra Lal Pathak, (ILR 97 Cal. 849).

          On the contrary, the statement contained in the admission register of
    the school as to the age of an individual on information supplied to the
    school authorities by the father, guardian or a close relative is more authentic G
    evidence under Section 32, Clause (5) unless it is established by unimpeachable
    contrary material to show that it is inherently improbable. The time of one's
    birth relates to the commencement of one's relationship by blood and a
    statement therefore of one's age made by a person having special means of
    knowledge, relates to the existence of such relationship as that referred to in H
                                                                                         ,.




    764                    SUPREME COURT REPORTS                     [2005] 2 S.C.R.

A   Section 32 .Clause (5).                                                             -
           As observed by this Court in Umesh Chandra v. State of Rajasthan,
    [ 1982] 2 SCC 202, ordinarily oral evidence can hardly be useful to determine
    the correct age of a person, and the question, therefore, would largely depend
    on the documents arid the nature of their authenticity. Oral evidence may
B   have utility if no documentary evidence is forthcoming. Even the horoscope
    cannot be reliable because it can be prepared at any time to suit the needs of      -4
    a particular situation. Entries in the school register and admission form
    regarding date of birth constitute good proof of age. There is no legal
    requirement that the public or other official book should be kept only by a
C   public officer and all that is required under Section 35 of the Evidence Act
    is that it should be regularly kept in discharge of official duty. In the instant
    case the entries in the school register were made ante !item motam.

          Therefore, the school records have more probative value than a
    horoscope. Where no other material is available, the horoscope may be
D   considered but subject to its authenticity being established. These aspects
    were not considered by the first appellate Court and the High Court.

         The High Court was, therefore, not jus!ified in dismissing the Second
    Appeal by observing that there was no substantial question of law involved.

E         Since the first appellate Court acted on irrelevant materials and left out
    of consideration relevant materials question of law was involved. The suit
    that was filed was rightly dismissed by the Trial Court. ·

           Accordingly the appeal is allowed. No costs.

    D.G.                                                           Appeal allowed.