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Judgment
Heard on the question of admission.
Appellant was employee of Municipal Council, Badnawar. He was appointed originally in the Municipal Council, Dhamnod somewhere in the year
1982. After sometime, his service has been transferred to the Municipal Council, Badnawar. In the service book, his date of birth was recorded as
21.02.1958 on the basis of declaration made by the appellant while entering into service in the year 1982. The said date of birth was recorded on the
basis of higher secondary mark sheet. The appellant had continued in service for more than three decades but had not raised any issue regarding
correction of date of birth in service record. He was due for retirement on 28.02.2018 and just 10 days before his retirement, he had filed an
application on 20.02.2018 for correction of date of birth and the respondent No.1 within three days i.e. on 23.02.2018 had passed a resolution for
correcting the date of birth without considering the legal position and without even looking at the material on the basis of which the original entry in the
service book was made.
As per record, appellant is higher secondary pass and the entry of date of birth of 21.02.1958 was apparently made in the service record on the
basis of higher secondary mark sheet. On 20.02.2018 (Annexure-P/2), he filed an application before the Municipal Council, Badnawar for correction
of date of birth in the service record on the basis of primary school record and horoscope. He had neither disclosed higher secondary mark sheet nor
he had filed it along with the application. Within a period of three days, the President-In-Council of respondent No.1 of Municipal Council passed a
resolution on 23.02.2018 and by the aforesaid resolution, his date of birth has been changed from 21.02.1958 to 21.07.1958 but instead of giving effect
to the said resolution, order dated 24.02.2018 has been passed by the Chief Municipal Officer, Municipal Council, Badnawar by which appellant has
been retired from the post of Assistant Grade-II w.e.f. 28.02.2018, on completion of 60 years of age of superannuation.
He challenged the order dated 24.02.2018 passed by the respondent No.2 by filing writ petition under Article 226 of the Constitution of India.
Learned Writ Court after appreciating the material on record and the law laid down by the Apex Court dismissed the W. P. No.4899/2018 on
25.04.2018 by passing the following order :-
Having heard the learned counsel for parties and on perusal of the record it is noticed that law relating to correction of date of birth in the service
record is well settled. The correction of date of birth at the fag end of the service is not permissible unless irrefutable proof of date of birth is furnished
by the employee concerned and while considering such a prayer, circumspection, caution and carefulness is required to be observed because such a
correction has chain affect, affecting rights of other persons whose chances of promotion etc. are affected.
It is also settled position in law that whenever any such question arises the onus is on the employee to prove the wrong recording of date of his birth in
his service record. It is also settled that declaration of age made at the time of or for the purpose of entry into government service is conclusive. (See
State of Madhya Pradesh Vs. Premlal Shrivas reported in (2011) 9 SCC 664; Punjab & Haryana High Court Vs. Megh Raj Garg (2010) 6 SCC 482;
Union of India Vs. Harnam Singh (1993) 2 SCC 162; Home Department Vs. R. Kirubakaran 1994 Supp (1) SCC 155.
Supreme court in the matter of State of UP Vs. Shiv Narain Upadhyaya reported in (2005) 6 SCC 49 has castigated the practice of raising the dispute
about incorrect recording of date of birth in service book on the eve of retirement. In the matter of State of Haryana Vs. Satish Kumar Mittal and
another reported in 2011(1) MPLJ 302 it has been held that application for correction in the service record must be made within the time prescribed in
the rule and if the rule does not prescribe any time limit then such an application should be made within a reasonable time and it cannot be entertained
merely on the basis of plausible material.
Having examined the present case in the light of the aforesaid legal position, it is noticed that in the service book of petitioner the date of birth of
21/2/1958 was recorded on the basis of declaration made by petitioner while entering in service in the year 1982. The said date of birth was recorded
on the basis of Higher Secondary mark sheet. The petitioner had continued in service for more than 3 decades and had not raised the grievance about
the date of birth in service record.
Petitioner was due for retirement on 28/2/18 and just 10 days before it he had filed an application on 20/2/18 for correction of date of birth and
respondent no. 1 within 3 days on 23/2/18 had passed the resolution for correcting the date of birth without considering the legal position and without
even looking at the material on the basis of which the original entry in the service book was made.
The record further reflects that though the petitioner is higher secondary pass and the entry of date of birth of 21/2/1958 was apparently made in the
service record on the basis of Higher Secondary mark sheet, but Annexure P-2 reveals that petitioner had made application before respondent no. 1
for correction of date of birth in service record on the basis of horoscope and Primary School record. He had neither disclosed Higher Secondary
mark sheet before respondent no. 1 nor he had filed that mark sheet before this court. Hence on the basis of improper material he had persuaded the
respondent no. 1 to pass the resolution dated 23/2/18.
It is also undisputed before this court that petitioner was originally appointed in Municipal Council Dhamnod and thereafter his services were
transferred to Municipal Council Badnawar. Hence the counsel for respondent no. 2 has rightly submitted that on the basis of circular dated 9 th June,
1999 the lien of petitioner is with the original appointee i.e. Municipal Council Dhamnod, therefore, respondent no. 1 could not have passed the
resolution for correction of date of birth in the service record of petitioner. This petition being a writ petition under Article 226 of the Constitution of
India the petitioner cannot enforce the resolution of President in Council dated 23/2/18 which on the face of it is unsustainable. Even though the
resolution dated 23/2/2018 is not under challenge, the petitioner ’s prayer for implementing such an erroneous resolution cannot be accepted in
exercise of writ jurisdiction because writ jurisdiction cannot be used to perpetuate the illegality which has been committed by respondent no. 1 in
passing the resolution dated 23/2/18.
In view of this the contention of counsel for petitioner in respect of binding nature of resolution dated 23/2/18 on respondent no. 2 need not be
examined and is of no consequence.
Though vide order dated 31 st March 2018 the age of superannuation has been increased to 62 years but since the petitioner stood retired prior to
amendment in respect of age of retirement, therefore, he is not entitled to benefit of order dated 31st March 2018.
Hence I am of the opinion that the impugned order dated 24/2/2018 retiring the petitioner w.e.f. 28/2/18 on the basis of his original entry relating to
date of birth of 21/2/1958 does not suffer from any error and no case for interference is made out. The writ petition is accordingly dismissed.
It is well settled that application for correction in the service record must be made within the time prescribed in the rule and if the rule does not
prescribe any time limit, then such an application should be made within a reasonable time and it cannot be entertained merely on the basis of plausible
material. The correction of date of birth at the fag end of the service is not permissible.
Admittedly, appellant was appointed in the Municipal Council, Badnawar in the year 1982 and just 10 days before his retirement, he had filed an
application for correction of date of birth on 20.02.2018. His appointment was made on the basis of higher secondary mark sheet and prayed for
changed of date of birth on the basis of horoscope and primary school record.
On due consideration of the provisions of Section 89(1)(a) and 92(b) of the M. P. Municipalities Act, 1961 so also the facts of event in the case and
the reasons assigned by the learned Writ Court, no case is made out to interfere with the impugned order. Learned Writ Court after appreciating facts
of the case and the law laid down by the Apex Court from time to time rightly dismissed the writ petition by holding that original entry relating to date
of birth does not suffer from any legal error.
The writ appeal filed by the appellant has no merit and is accordingly, dismissed.