JUDGMENT
S.S. Nijjar, J.
1. The respondent, Sat Parkash, filed a suit for declaration to the effect that his date of birth has been wrongly recorded in the Matriculation Certificate as 18.08.1936 instead of the correct date of birth which was 18.08.1938. The suit filed by the respondent has been dismissed by the learned trial Court on the ground that the clerical error in the matriculation certificate could have been corrected within a period of two years of the respondent joining government service. It may be noticed that the learned trial Court did not advert to any of the oral or documentary evidence produced by the respondent in support of his claim in the suit. It has been held by the learned trial Court that the law comes to the assistance of the vigilant and not the sleepy. The learned Lower Appellate Court has reversed the judgment of the learned trial Court and decreed the suit of the respondent to the effect that date of birth of the respondent is 18.08.1938 instead of 18.08.1936 with consequential benefits. The State of Punjab has filed the present regular second appeal challenging the judgment and decree of the learned Lower Appellate Court.
2. The undisputed farts culled out from the judgments of the Courts below and supplemented by the learned counsel for the parties may briefly be noticed.
3. The respondent was born on 18.08.1938 at Chuck No,38, Tehsil Jaranwala, District Lyallpur now in West Pakistan. On partition in 1947, his family migrated to India
and settled in village Khanpur, Tehsil Kharar now district Ropar. He completed his primary school education from the District Board Primary School, Rurki Pukhta. In the record of this school, the date of birth of the respondent is correctly recorded. The respon-, dent left the aforesaid school. The School Leaving Certificate reflects the date of birth of the respondent as 18.08.1938. Thereafter, the respondent was admitted to Christain High School, Kharar. His date of birth in this school has also been recorded as 18.08.1938. On promotion from Class-VII to Class-VIII on 1.4.1951, again the date of birth of the respondent is recorded as 18.08.1938. Thereafter the respondent was admitted to Class-IX on 1.4.1953. Again the date of birth is correctly recorded. The application of the respondent for appearing in Matriculation examination was sent by the school authorities mentioning the correct date of birth. However, due to clerical error the University authorities wrongly recorded the date of birth of the respondent as 18.08.1936. On the basis of the matriculation certificate, the respondent joined as Punjabi Teacher at Government High School, Nurpur, Tehsil and District Ambala, on 28.06.1962. On re-organisation of the Punjab State, he opted to serve in the Punjab State and remained posted at various places in the State of Punjab. At the time of filing of the suit on 05.05.1994 he was only three months short of retirement. It was claimed by the respondent that he came to know about the wrong entry in the Matriculation Certificate on 03.05.1992 on the occasion of Ramayanpath which was being held in his house in the presence of a number of relatives. His elder cousin brother told him that his actual date of birth was 18.08.1938 instead of 18.08.1936. After collecting the record from the primary school, he made a representation through proper channel on 03.05.1992 to the Principal of the School and the District Education Officer, Ropar, No. decision was taken by the authorities on this representation.
4. Note-1 of Rule 2,5 of the Punjab Civil Services Rules, Volume-1 Part-1, 1994, provides that date of birth of a Government employee once recorded in the service book cannot be corrected except in the case of a clerical error, without the previous orders of Government. This clause was to be read with Annexure-A to Chapter VII of Punjab Financial Rules, Volume-1. Annexure-A as it originally stood, is as under:-ANNEXURE-
1. In regard to the date of birth a declaration of age made at the time of, or for the purpose of entry into Government Service, shall as against the Government Servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of a Government Servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the History of service of a gazetted government servant is incorrect and has been incorrectly recorded with the object that the Government Servant” may derive some unfair advantage therefrom.
2. xxx xxx xxx
3. When a Government servant, within the period allowed makes an application for the correction of his date of birth as recorded, a special enquiry should be held to ascertain his correct age and reference should be made to all available sources of information such as certified copies of entries in the Municipal birth registers, University or School age certificates, Janam Partris or horoscopes. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such applications and no alteration should be allowed unless it has satisfactorily been proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantage therefrom”.
5. Note-1 of Rule 2.5 read with Annexure-A provides that the application for correction of age shall be made within two years from the date of his entry into government service. However, vide notification dated 21.06.1994, the aforesaid Note-1 of the Rule 2.5 of the rules ibid was amended and it was provided that the employees already in the
service of government of Punjab on the date of coming into force of the Punjab Civil Services (First Amendment) Rules, Volume-1, Part-1, 1994, may apply for the change of date of birth within a period of two years from the coming into force of these rules on the basis of confirmatory documentary evidence such as Matriculation Certificate or Municipal Birth Certificate etc. It was further provided that no request for the change of date of birth shall be entertained after the expiry of the said period of two years. This amendment was, however, subsequently suspended on 10.10.1995, with immediate effect. In the meantime, the respondent made an application to the Punjab University on 20.02.1995 in accordance with the policy of the University for correction of date of birth. This application was received by the Punjab University Authorities on 20.02.1995. After examining the entire record, the Syndicate of the Punjab University vide para 16 of its meeting dated 25.02.1996, ordered the correction of the date of birth of the respondent from 18.08,1936 to 18.08.1938. The original Matriculation Certificate with wrong date of birth stood cancelled and a duplicate copy of the same with correct date of birth has been issued to the respondent by the Punjab University-respondent No. 2, by its letter dated 10.10.1996. Therefore, so far as the Punjab University is concerned, the claim of the respondent has been accepted. Taking into consideration the aforesaid facts, the learned lower Appellate Court has decreed the suit of the respondent.
6. Mr. H.S. Sran, learned Additional Advocate General, Punjab, has vehemently argued that the suit filed by the respondent was hopelessly time barred. The learned trial Court has rightly rejected the claim of the respondent. The learned counsel drew the pointed attention of this Court to the fact that the respondent came into service on 28.06.1962. He did not make any efforts whatsoever to get the date of birth corrected. He allegedly made the first representation on 03.05.1992. He filed the civil suit on 05.05.1994. He made another representation to the State-appellants on 26.08.1994 i.e., during the pendency of the suit. The respondent actually retired on 31.08.1994. This representation had been made under the amendment to the Note-1 of Rule 2.5 on 21.06.1994. According to the learned counsel the respondent cannot be permitted to take any benefit of the amendment of the relevant rules on 21.06.1994 as the suit had already been filed on 05.05.1994. Therefore, his rights, if any, have crystalised on 05.05.1994. The subsequent amendment in the rules, if any, would not create any right in favour of the respondent. In any event, these instructions were suspended on 10.10.1995. Thereafter, the rules as stood earlier were operative. Under the old unamended Rule 2.5 of the Punjab Civil Services Rules, Volume-1, Part-1, 1994, the respondent had to make an application for correction of date of birth within a period of two years of entry into service. According to the learned counsel such a belated claim of the respondent was rightly held to be time barred by the learned trial court. It is further submitted by the learned counsel that the judgment of the learned Lower Appellate Court is not only contrary to the statutory service rules but is also against the law laid down by the Hon’ble Supreme Court. In support of this submission, learned counsel for the appellants relied on State of Orissa and Ors. v. Ramanath Patnaik, (1997)5 S.C.C. 181. In the aforesaid judgment, the Hon’ble Supreme Court has held that “when entry was made in the service record and when respondent 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”. In that case, the government servant had joined service as a Clerk on 21.03.1944. His date of birth was recorded as 1.1.1921 in the Matriculation Certificate which was produced at the time of entry into service. He retired on superannuation on 31.12.1976. Five years thereafter in the year 1981, he filed a civil suit. He had made a representation for correction of his date of birth as 1.1.1925 instead of 1.1.1921. The learned trial Court dismissed the suit. On appeal, the suit was decreed. The second appeal was dismissed by the High Court. A perusal of the aforesaid facts shows that the Supreme Court was not dealing with a case where the application for correction had been made under the statutory rules and the application had been made within the prescribed pe-
riod. The aforesaid authority is of no avail to the appellants. Mr. H.S. Sran, learned Additional Advocate General, appearing for the appellants has further vehemently argued that the respondent had been asked to note the date of birth entered in his service record at the time of his entry into service. Therefore, the respondent cannot be said to be ignorant of the date of birth entered in his service record. Even if that is so, the aforesaid judgment of the Hon’ble Supreme Court would not be applicable to the facts and circumstances of this case, Mr. Sran has placed strong reliance on the judgment of the Hon’ble Supreme Court in the case of Union of India v. Ram Suia Sharma, 1966 S.C.C. (L&S) 605. The judgment of the Hon’ble Supreme Court being short may be reproduced in toto which is as under:-
“Leave granted.
The controversy raised in this appeal is no longer res integra. In a series of judgments, this Court has held that a Court or tribunal at the belated stage cannot entertain a claim for the correction of the date of birth duly entered in the service records. Admittedly, the respondent had joined the service on 10.12.1962. After 25 years, he woke up and claimed that his correct date of birth is 2.1.1939 and not 16.12.1934. That claim was accepted by the Tribunal and it directed the Government to consider the correction. The direction is per se illegal. The appeal is accordingly allowed. No costs.”
7. Perusal of the aforesaid judgment shows that the same is based on its own facts. As noticed earlier in the present case the application for correction has been made on the basis of the correction of date of birth made by Punjab University in the Matriculation Certificate and under the amended Rule 2.5 of the Punjab Civil Services Rules, Volume-1, Part-1, 1994. Therefore, the aforesaid authority of the Supreme Court would not be applicable in the facts and circumstances of the case.
8. From the facts narrated above, It has become abundantly clear that the school record of the respondent throughout reflected his correct date of birth i.e. 18.08.1938. The date of birth has been inadvertently changed to 18.08.1936 by the Punjab University while issuing Matriculation Certificate. The fact that the actual date of birth of the respondent is 18.08.1938 has been supported by oral as well as documentary evidence of the schools attended by the respondent. Further more, the claim of the respondent has been accepted by the Punjab University and the date of birth has been corrected. He has also been issued a duplicate Matriculation Certificate with correct date of birth. It is further to be seen that during the pendency of the suit, the State of Punjab issued instructions on 21.06.1994 inviting application for correction in the date of birth. Therefore, it would not be possible to accept the submissions made by the learned counsel for the appellants that the claim of the respondent deserves to be dismissed only on the ground of delay and laches. In the absence of any undue advantage secured by the respondent by showing himself to be two years elder than he actually was, the principle of estoppled would not be applicable. It is to be noticed that the respondent came into service on 28.06.1962. Therefore, even if he had stated the correct date of birth i.e. 18.08.1938, in the application for the government job he would still be 24 years of age. He would be fully eligible. Therefore, it cannot be said that he would have been under age and, therefore, not eligible for the government job had he given the correct date of birth. I am of the considered opinion that the respondent could not have been non-suited either on the ground of delay and laches or on the principle of estoppel. The aforesaid opinion of mine, is supported by two judgments of this Court. In the case of Hari Parshad Handa PCS (Judicial) Magistrate, 1st Class, Subordinate Judge 1st Class, Garhshankar, Hoshiarpur v. The State of Punjab and Anr. (1985-1) 87 P.L.R. 39, in this judgment, it has been held as follows:-
The statement regarding the date of birth made by the employee is based upon his belief and not his personal knowledge, From further information it would always be open to him to show that the statement was incorrect and his date of birth was in fact
different from the one earlier stated by him. However, if he has entered into the service fraudulently by misstating his date of birth the question of estoppel would arise and he would be debarred from challenging the correctness of his date of birth. For instance, a man may not be of age to enter a particular service but by wrongly giving his age he may secure employment. Later on he would certainly be estopped from saying that he was of a younger age than the one stated by him at the time of his entry into service. Short of such a fraud or misrepresentation there is no rule of estoppel which would debar him from claiming and proving that the date of birth earlier given at the time of his entry into service was not the correct one. As in the present case even if the appellant would have given his date of birth as found out correct now he could have certainly been recruited in the service.”
9. The aforesaid view has been reiterated again in the case of The State of Haryana, through Collector, Kurukshetra and Ors. v. Chander Singh alias Chander Bhan, (1988-2) 94 P.L.R. 264, wherein it has been held as under: –
“The main thrust of the argument of Mr. N.K. Kapur appearing for the Advocate General, Haryana, was founded upon the provisions of rule 7.3 of the Punjab Financial Rules, Volume 1, namely: that the date of birth qf the government servants cannot be altered after more than two years from the date of his entry into government service. The answer to this is however, provided by the judgment of this Court in Hari Parshad Handa v. The State of Punjab.
A similar view was also recently expressed in R.S.A. No. 2564 of 1987 (State of Punjab v. Jaswant Singh) decided on May 25, 1988.
Further, in dealing with this matter, it must be mentioned that by giving his date of birth to be November 15, 1931, that plaintiff had not in any manner gained for himself a benefit which he was otherwise not entitled to, inasmuch as, he would have been eligible for appointment as Naib Tehsildar on the date he joined service whether his date of birth was November 15, 1931 or September 6, 1935. He, thus, earned no undue benefit in securing service by mentioning his date of birth to be in the year 1931. Similarly, no such undue benefit was acquired by him by his entry in the Haryana Civil Service. There thus being no fraud or mis-representation as alluded to in Hari Parshad Handa’s case (supra), no exception can be taken to the judgment and decree of the lower appellate Court granting to the plaintiff the relief claimed”.
10. I am of the considered opinion that the present appeal is squarely covered by the aforesaid judgments.
11. Even otherwise, a perusal of Annexure-A attached to Chapter VII of the Punjab Financial Rules, Volume-1, as corrected upto 31.3.1982, shows that the notification contained therein was omitted vide P.G.F.D. Notification No. 193-FR-68/68615, dated 11.1.68. Thus, it would become apparent that rules as they stand today, do not contemplate any period within which the application for correction of date of birth on the ground of clerical error can be made. In the learned Courts below as also before this Court, the arguments have been addressed on the presumption that Note-1 to Rule 2.5 of the Punjab Civil Services Rules, Volume-1, Part-1, 1994, which are para-materia to Rule 7.3 to Chapter VII of the Punjab Financial Rules, Volume-1, contains a limitation of two years for making the application for correction of date of birth. It, however, appears that Annexure-A attached to Chapter VII of the Punjab Financial Rules, Volume-1, having been omitted, no period of limitation can be read into either under Rule 2.5 of the Punjab Civil Services Rules, Volume-1, 1994 or Rule 7.3 to Chapter VII of the Punjab Financial Rules, Volume-1.
12. This apart, it is to be noticed that the judgment of the learned Lower Appellate Court is based on due appreciation of oral as well as documentary evidence. The findings of fact recorded by the learned Lower Appellate Court cannot be said to be either perverse or based on no evidence. In such circumstances, no substantial question of law would arise. Consequently, the appeal would have to be dismissed.
13. Mr. Sran, learned counsel for the appellants is, however, correct in submitting that the respondent actually retired on 31.08.1994, whereas on the basis of correct date of birth he would have retired on 31.08.1996. Therefore, now his deemed date of retirement would be 31.08.1996. However, since the respondent has not worked for this period of two years, no monetary benefits can be granted to him on account of salary for this period. Mr. Sran had, in fact, submitted that even gratuity cannot be granted to the respondent for’the aforesaid period. I am of the considered opinion that there is no merit in the submission made by Mr. Sran with regard to the gratuity as it is to be granted as per rules. The respondent cannot, however, be given the salary from 31.08.1994 to 31.08.1996.
14. In view of the above, the appeal is hereby dismissed. The judgment of the learned Lower Appellate Court is upheld. The suit of the respondent is decreed with all consequential benefits as ordered by the learned Lower Appellate Court except that the respondent will not be paid salary for the period from 31.08.1994 to 31.08.1996. He shall be entitled to all other consequential benefits as decreed by learned Lower Appellate Court. The appellant-State of Punjab is directed to refix the retiral benefits of the respondent within a period of three months from today.
No Costs.