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MRS. NARINDER KAUR versus PUNJAB AND HARYANA HIGH COURT AND ORS

High Court of Punjab and Haryana, Chandigarh

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Mrs. Narinder Kaur v. Punjab and Haryana High Court and Ors - CWP-16151-2003 [2006] RD-P&H 2291 (4 April 2006)

CWP 16151 of 2003 1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CWP 16151 of 2003

Date of decision20.4.2006

Mrs. Narinder Kaur .. petitioner

Versus

Punjab and Haryana High Court and ors .. Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI

PRESENT: Mr. AR Takkar, Advocate for the petitioner Mr. Harish Rathee, Sr. DAG Haryana for the State.

M.M.Kumar, J.

This petition filed under Article 226 of the Constitution prays for quashing order dated 12.5.2002 passed by this Court on the administrative side declining the request made by the petitioner for effecting the change in her date of birth. It is appropriate to mention that the petitioner is presently serving as Civil Judge (Jr.Division), Ambala and she has given her date of birth as 26.1.1971 and its change has been sought to 9.1.1972. The petitioner has principally placed reliance on a notification dated 13.8.2001 (Annexure P.3) which is issued by respondent no.3- State of Haryana granting permission to all its employees to file application for correction of his/her date of birth within a period of two years of his entry into government service. The afore-mentioned notification has been issued by amending the Punjab Financial Rules, Volume 1 ( as applicable to Haryana). It is further appropriate to mention that it is entirely left to the discretion of the sanctioning authority to refuse or to accept such an application. It further stipulates that no alteration would be allowed unless it has been satisfactorily proved that the date of birth as originally given by an employee was the result of a bona fide mistake and that such an employee has derived no unfair advantage therefrom.

On the basis of the afore-mentioned notification, the petitioner is stated to have filed an application for correction of her date of birth on 12.4.2002 (Annexure P.2).

The applicant disclosed the details of birth of her two sisters and a brother borne out of the same parentage. The matriculation certificate of her eldest sister Jasbir Kaur showing her date of birth as 15.6.1960 ( Annexure P.4), the second sister Ms. Kesar Pal Kaur showing her date of birth as 24.10.1965 alongwith their birth certificates have been CWP 16151 of 2003 2

placed on record as Annexures P.4, P.5 and P.5A). The matriculation certificate of her elder brother Gurmeet Singh showing his date of birth as 26.12.1969 alongwith birth certificate have also been attached as Annexures P.6 and P.6A). The petitioner has also attached her own matriculation certificate showing that she was born on 26.1.1971 and she passed the matriculation examination in March, 1986 ( Annexure P.7) It is claimed that all the formalities required for correction of date of birth as stipulated by the notification dated 13.8.2001 ( annexure P.3) have been complied with yet her application was rejected by the High Court on the administrative side on 21.5.2002 ( Annexure P.8).

The petitioner has also placed reliance on a certificate dated 5.10.1983 issued by the Chief Registrar (Death and Births) Punjab, Chandigarh showing that a female child was born on 9.1.1972 and was registered with them on on 11.1.1972. The name of the father has been entered as Gurdial Singh of Mohalla Jattan Rajpura.

In his affidavit filed by way of reply, respondent no.2 has taken the stand that on the basis of the information provided by Shankar Kaur the birth certificate has already been issued. A reference to the afore-mentioned certificate has been made in the preceding para which has been placed on record Annexure P.1. The affidavit further states that as per information recorded in Colume No.10 of entry 10 dated 11.1.1972 the said child is stated to be the third child of Guirdial Singh son of Hazura Singh. A copy of the Births register showing that entry has been placed on record as Annexure R/1.

The High Court- respondent no.1 in its written statement has pointed out that the petitioner joined the service on 20.5.2000 at Ambala City and she had filed an application for change of her date of birth on 12.4.2002, which was within the stipulated period of two years. However, it has been pointed out that the application was rejected on the administrative side with the categorical finding by the High Court that the officer had deliberately omitted to annex her matriculation certificate alongwith her application.

It has further been pointed out that the notification issued by respondent no.3 ( Annexure P.3) is not binding upon the High Court for acceptance of the request for change of date of birth. The High Court has further prayed that the petitioner is to be put to strict proof to the effect that she had not taken any undue benefit according to her date of birth and is fully eligible to hold the present post which she has been holding according to the given date of birth.

CWP 16151 of 2003 3

We have heard the learned counsel for the parties at a considerable length, perused the record alongwith the documents.

Mr. A.R.Takkar, learned counsel for the petitioner has argued that according to the notification 13.8.2001 (annexure P.3) the petitioner has promptly approached this Court for correction of her date of birth within a stipulated period of two years. It is claimed that incorrect date of birth was entered on the mistake committed by the relations of the petitioner at the time of entry in the school which resulted into incorrect entry of date of birth in her matriculation certificate ( Annexure P.7). Learned counsel has pointed out that her two other sisters were born on 15.6.1960 (Annexure P.4) and 24.10.1965 ( Annexure P.5) The elder brother is shown to be born on 27.12.1969 ( Annexure P.6). It is admitted position that the petitioner is youngest and the fourth child.

Shri Harish Rahtee, learned State counsel has pointed out that the number of children of her parents as pointed out by the petitioner does not match with that of the affidavit filed by the Deputy Chief Registrar (Birth and Deaths) Punjab, Chandigarh.

According to the afore-mentioned affidavit, the petitioner is the third child of her parents whereas the averments made by the petitioner in para 3 of the amended petition show that she is the youngest and the 4th

child of her parents. It has further been argued that the petitioner has raised the matter after a number of years of passing of her matriculation in the year 1986 although the application by her has been found to be within two years of the notification dated 13.8.2001. It has further been pointed out that the basic reason for respondent no.1- the High Court to reject her application was that she failed to produce the matriculation certificate before it deliberately.

Having heard the learned counsel at a considerable length we are of the view that no interference of this Court would be warranted for directing the respondents to change the entry of her date of birth in the service record. The petitioner has failed to satisfactorily show that she has not taken any advantage of the recorded date of birth. We had repeatedly asked the learned counsel for the petitioner as to whether she could have secured the certificate of matriculation in March, 1986 ( Annexure P.7) by showing her recorded date of birth as 26.1.1961 as there is a doubt that a student below the age of 15 years could not appear in such an examination. However, no satisfactory reply has been CWP 16151 of 2003 4

given by the learned counsel to the afore-mentioned persistent query by the Court. The more fundamental issue which surface in the instant case is as to whether at the time of entry into service the age of the person who is sought to be appointed is a relevant circumstance or not. The afore-mentioned question has been considered by the Supreme Court in the case of UOI v. C.Ramaswamy 1997(4) SCC 647. In that case Rule 16A of the All India Service (Death cum Retirement Benefits) Rules, 1958 fell for consideration of their Lordships. Holding that the afore-mentioned rule do not apply to the facts of that case, the judgement of the Himachal Pradesh High Court in the case of Manak Chand v.

State of H.P. 1976 (4) SLR 402 has been over-ruled on the issue because the argument with regard to principle of estoppel was repelled by the Hon'ble High Court., However, the plea of estoppel has been upheld by their Lordships and the observations in this regard are discernible from paras 25 and 26 which reads as under: "In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. Infact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept to broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be CWP 16151 of 2003 5

appointed may be a relevant consideration to assess his suitability.

In such a case, even in the absence of a statutory rule like Rule 16A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the Court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage.

Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can legitimately denied. To that extent the decision in Manak Chand case does not lay down the correct law." (emphasis supplied by us)

Similar observations have been made by the Hon'ble Supreme Court in the case of Burn Standard Co. Ltd vs. Dinabandhu Majumdar 1995(4) SCC 172.

When the principles laid down in the case of C.Ramaswamy (supra) are applied to the facts of the present case then there is hardly any doubt that the petitioner who was selected and appointed to HCS (J.B.) services belongs to a mature class and her age as declared in the application form for selection must have influenced the mind of the Selection Committee. According to the date of birth recorded, the petitioner was 29 years of age and it has to be presumed that her mature age secured benefits for her from the selection Committee. The principle of estoppel, as applied by Hon'ble the Supreme Court in case of C.Ramaswamy (supra) would also be applicable to the present case. Moreover, the petitioner studied from Class I to Class X on the basis of the afore-mentioned date of birth and there is unexplained doubt that she could not have appeared in matriculation examination at the age of 14 years.

On principle and on precedents, we are of the view that the petitioner is estopped by her own act and conduct to request for change in her date of birth. The notification dated 13.8.2001 ( Annexure P.3) cannot be read as mandatory because the notification itself says that no order for change of date of birth can be passed where it was not satisfactorily proved that the date of birth as originally recorded was the result of CWP 16151 of 2003 6

bona-fide mistake and that the petitioner has not derived any undue benefit. The concluding lines in the notification reads as under: " 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 bonafide mistake and that he has derived no unfair advantage therefrom." It is also evident that the petitioner has failed to explain the entries / assertions made by respondent no2,, the Deputy Chief Registrar (Birth and Deaths) Punjab in his affidavit to the effect that the petitioner was third child of her father Gurdial Singh whereas on her own showing the petitioner is the fourth child. Therefore, no benefit could be secured by the petitioner and the prayer made by her is without any substance.

For the reasons mentioned above, this petition fails and the same is dismissed. However, in peculiar facts and circumstances of the case, we leave the parties to bear their own costs.

(M.M.Kumar)

Judge

(M.M.S.Bedi )

20 .4.2006 Judge

okg


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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