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Regd. No. HSE/830/2012-14

ESTD.19S0

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I.

MODE OF CITATION

2012 (2) SCJ8th March 2012

ESTD.1938 RNI - 1083/67

FOCUS

* Court can neitherlegislate nor issue adirection to theLegislature to enact ina particular manner.

557* In taxation there is

broader power ofclassification than insome other exercises oflegislation. 617

* Legislative power canbe exercised only by thelegislature or itsdelegate and none else.

557

'0 ,~ 'f.~ ;,. ~i PART-10 I:g .s

• ~ CONTENTS I~

~i INDEX ,45 TO 58 ;i:JOURNAL 17 TO 32 I~ i CENTRALACTS NIL i~ !, REPORTS 513 TO 672 i

"~k.~,=_._.f,,}".!1>'iNl'",~:·~/~9;~b:-u.""'t.;".hV;"'~J~»l<; '0 liI!J;

Weekly Law Journal

Judgments ofSupreme Court & Articles

CHIEFADVISORSSri. Justice M. Jagannadha Rao

(Former Judge, Supreme Court of India)(Former Chairman, Law Commission of India)

Sri. Justice Dr. A.R. Lakshmanan(Former Judge, Supreme Court of Indio)

(Former Chairman, Law Commission of India)

HONORARYEDITORSSri. Justice S. Rajendra Babu

(Former Chief Justice of India)Sri. Justice K.T.Thomas(Former Chief Justice of India)

EDITORIAL BOARDSri Justice U.c. Banerjee

(Former Judge, Supreme Court of India)

EDITORSK.V.G.Krishna Murthy

D V SubramanyamP.S.P. Suresh Kumar

PUBLISHED BYManohar Gogia

Ajay GogiaNeeraj Gogia

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2]

Conclusion

Capacity of. human -mind isunfathomabJe. It is not possible toeliminate cyber crime from the CyberSpace. It is quite possible to check them.History is the witness that no legislationhas succeeded in totally eliminating crimefrom the globe. The only possible step isto make people aware of their rights andduties (to report crime as a collective dutytowards the society) and further makingthe application of the laws more stringentto check crime. Undoubtedly the Act is ahistorical step in the cyber world.

CHANGE OF DATE OF BIRTH INSERVI CE RECORDS: A STUDY INTHE LIGHT OF SUPREME COURTDECISION IN SATISH KUMAR

MITTAL'S CASE"By

Prof. (Dr.) Mukand Sarda"

(1)Disputes very frequently arise withregard to changes sought to be made inthe service records of an employee. Theright of an employee to change·his dateof birth and that of the employer to denysuch a right exercised beyond a certainperiod time, has given rise to spate oflitigations in Courts. While theconcerned Governments insist on itsrules that the application seeking achange should be made within a specifiedperiod, the empbyees try to assert theirright to ask for :a change at any time,when they get information - authenticand documentary evidence providingreliable and unimpeachable evidence insupport of their claim.

• State of Lllryana P. Salish Kumar Mittal andanother: 2010 (7) set 992 = AIR 2010 SC 3312.Principal & Dean, Bharati Vidya Peet NewLaw College, Pune.

JOURNAL 29 .'(2) The Supreme Court explained the.

importance of the date of birth in HarnamSingh's caseI thus:- .

(i) A Govt. servant, after entry intoservice acquires the right tocontinue in service. till the age ofretirement, as fixed by the State inexercise of its powers, regulatingconditions of service, unless theservices are dispensed with onother grounds contained in therelevant : service rules afterfollowing the procedure prescribedtherein.

(ii) A Govt. servant, who has declaredhis age at the initial stage of theemployment is, of course notprecluded from making a requestlater on for correcting his age;

(iii) It is open to the Govt. servant toclaim correction of his date ofbirth, if he is in possession ofirrefutable proof relating to hisdate of birth as different from theone earlier recorded;

. (iv) The request for a change can bemade even if no period of limitationis prescribed for seeking correctionof date of birth, he must do sowithout any unreasonable delay;

(v) In the absence of any provision inthe rules for correction of date ofbirth, the general principle ofrefusing relief on grounds oflaches or stale claims, is generallyapplied by the Courts andtribunals;

(vi) It is nonetheless competent for theGovernment to fix a time-limit, inthe service rules, after which noapplication for correction of date of

1. Union of India v. Harnam Singh, AIR 1993SC P.1367.

29

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30 SUPREME COURT JOURNAL [2012

birth of a Govt. servant can beentertained;

(vii) A Govt. servant who makes anapplication for correction of date ofbirth beyond the time, so fixed,therefore, cannot claim as a matterof right, the correction of his dateof birth, even if has good evidenceto establish that the recorded dateof birth is clearly erroneous;

(viii) The law of limitation may operateharshly but it has to be appliedwith all its rigour and the Courtsor tribunals cannot come to the aidof those who sleep over their rightsand allow the period of limitationto expire; and

(ix) Unless altered, his date of birth asrecorded would determine his dateof superannuation even if itamounts to abridging his right tocontinue in service on the basis ofhis actual age.

3) The Supreme Court reiterated theratio in Harnani Singh's Case- in State oj tl P.v. Shiv Narayan Upadhyaya3 in thesewords:-

liAs. such, unless a clear case on thebasis of clinching materials, whichcan be held to be conclusive innature, is made out by therespondent and that 1QQ...within areasonable time as provided in therules governing the service, theCourt or the tribunal should notissue a direction or make adeclaration on the basis of materialswhich make such claim onlyplausible"

4) The Supreme Court in Kirubakaran'sCase4 provided out, the consequences

2. Supra. 3. AIR 2005 SC 4192.4. AIR 1993 SC 2647.

of the change of date of birth in theseterms:-

" ..... '" It need not be pointed out thatany such direction for correction ofdate of birth of the public servantconcerned has a chain reaction, in asmuch as others waiting for years,below him for their respectivepromotions are affected by thisprocess. Some are likely to sufferirreparable injury, in as much as,because of the correction of the dateof birth, the officer concernedcontinues in office, in some cases foryears, within which time manyofficers, who are below him inseniority waiting for theirpromotions may lose ·thepromotions for ever. Cases are notunknown when a person acceptsappointment keeping in view thedate of birth of his immediatesuperior. . ..... Before any suchdirection is issued, the Court or thetribunal must be fully satisfied thatthere has been real injustice to theperson concerned and his claim forcorrection of date of birth has beenmade in accordance with theprocedure prescribed and within thetime fixed by any rule or order. If sorule or order has been framed ormade, prescribing the period withinwhich such application has to befiled, then such application must befiled, within the time, which can beheld to be responsible".

The ratio in Kirubakaran's Case,'; besideslaying down norms relating to correction

. in the date of birth, makes it emphaticallyclear that the request of the employeeshould not be considered keeping in viewonly his interest but also otherconsiderations as well.

5. Supra.

30

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(5) It has been observed that aGovernment Servant approaches theCourt on the eve of his retirement." Thereasons for waiting for a request to makethroughou t the period of his service(say for 33 years of service to earn afull pension) does not merit anyconsideration except to strengthen thepoint of his desire to continue in servicefor more time and avoid the retirementbecause of many family or other personalconsiderations. Retirement results in lossof income and deprivation of severalservice benefits like residentialaccommodation, House rent allowanceand other allowances eligible only duringthe period of service.

(6) The ratio in Satish Kumar MittaFis based on the strict rule of interpretationthat no petition be entertained after theexpiry of the period of limitation on anyground whatsoever. This is in accordancewith the general principles of limitation."It fails to take into account the exceptionalcases where the period of limitation canbe condoned and petitions are consideredand relief granted, "if sufficient cause isshown for not filing within the periodpr escr ib ed?". However, taking intoconsideration the consequences of givingan opportunity to change the date of birthbeyond the expiry date, there is a need toprovide a remedy for substantial justiceto the affected party, in order to effectivelyguarantee the right to continued serviceconsistent with Art 21 of the Constitutionand to make the law to suit the actualreality. The following suggestions aremade:-

6. State of U.P. v. Gulaichi, AIR 2003 se P.4209,State of Punjab v. S.C.Chadha 2004(3) seeP.394; State of Gujarath v. Vali MohamedDosabhai 5rillidhi AIR 2006 se P.2735.

7. Supra.8. See 5 of the Indian Limitation Act.9. See Sec 6 of the India Limitation Act.

JOURNAL 31

(i) An application for change of date ofbirth can be made, even after theprescribed period or reasonabletime as may be considered proper,if sufficient cause is shown for notfiling the same within theprescribed/reasonable time as thecase may be. Even if sufficientcause is shown, the court has thediscretion to condone or not,depending on the facts andcircumstances of each case;

(ii) In all cases, where delay iscondoned, all parties who arelikely to be affected by a change ofda te of birth, shall be given areasonable opportunity to challengethe condonation petition. In cases,where a change of date of birthdoes not affect anybody thecondonation may be granted, atthe discretion of the Court;

(iii) No petition to condone delay maybe entertained within a period oftwo years prior to the age ofsuperannuation of the Govt.servant concerned.

The Court may presume that apetition within two years of thedate of retirement is motivatedwith a desire only to continue inservice;

~~'I (.~ . i'

(iv) All petition for condonation ofdelay shall be supported byadequate and cognant docurnen.aryevidence, which r,"n be reb,.,~lr.d ~'Yany interested person;

(v) The reasons for effecting a dl ijlgein the date of birth must be seated inclear terms, so that an appealremedy is available to parties tochallenge the decision. Noconclusive evidence or finality clauseshall be introduced in the

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32 SUPREME COuRT JOURNAL[2012

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. Journal Section E1Ids

adjudication and must be open tochallenge.

(vi) In case, where the change of date ofbirth is recorded, the personconcerned shall not be eligible forincrements, promotions or otherservice benefits, unless the Courtorders otherwise.

The pay, which he has drawnprior to two years before

,I. retirement alone shall be protected.o addition in pension may be

allowed during the extended

period on account of change.of dateof birth;

(vii) Even in cases, where the change ofdate of birth is recorded, theservant concerned may be allowedto opt for voluntary retirement, asnot to impose additional financialburden to the State;

(viii) It must be permissible for Courts toimpose any conditions, which areconsidered reasonable, whileacceding to the change of the date ofbirth .