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2000 DIGILAW 31 (CAL)

Food Corporation of India v. A. K. Ghosh

2000-01-17

MALAY KUMAR BASU, SHYAMAL KUMAR SEN

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JUDGMENT Malay Kumar Basu, J. 1. This appeal is directed against the judgment dated 2nd June, 1993 delivered by a Single Judge of this Court in C.O. No. 9905(W) of 1993. The appellants are the employer of the respondent writ petitioner, whose case is as follows: – The respondent joined the F.C.I. in the year 1954 in the post of Junior Clerk/Typist on the basis of an appointment order issued by the Regional Director, Food, Eastern Region at the time of his appointment he gave a declaration in the prescribed form before the authority in his own handwriting to the effect that his date of birth was 4th January, 1936 on the basis of his Matriculation Certificate as well as the Admit Card. In the year 1988, it came to his notice that the date of birth originally recorded in his Service Book as 4th January, 1936 had been interpolated by somebody by using a different ink and his date of birth was written as 4th January, 1935. The respondent then submitted a representation dated 21st March, 1988 before the Zonal Manager of the F.C.I. asking for rectification of the erroneous entry by inserting his actual date of birth as appeared in the Matriculation Certificate or Admit Card, that is, 4th January, 1936 (Vide Annexure-B). Thereafter, the appellants made an enquiry and found that the initially recorded date of birth had been interpolated by someone and passed an order that the same should be rectified on the basis of his Matriculation Certificate and this observation was recorded on 20th April, 1988 by the appellants in the relevant file maintained by the Zonal Office of the F.C.I. The appellants informed the respondent in reply to his above representation that the date of birth had been duly rectified as 4th January, 1936 in place of 4th January, 1935 and that order had also been forwarded to the appropriate authority of the F.C.I. Head Quarters at New Delhi (Vide Annexure-E). Subsequently, in the year 1988, the respondent while holding the post of Assistant Manager (General), the abovementioned date of birth was correctly recorded in the provisional seniority list published by the appellants wherein the respondent-petitioner's name appeared against the Sl. No. 11 (Vide Annexure-F) and that seniority list was also sent to the Head Quarters of the F.C.I. at New Delhi. No. 11 (Vide Annexure-F) and that seniority list was also sent to the Head Quarters of the F.C.I. at New Delhi. Further, in 1992 an office order was issued by the Zonal Manager of the F.C.I. giving therein a list of employees and the dates of their retirement and in that order the name of the respondent occurred against Sl. No. 3 and his date of retirement was shown as 31st January, 1994 (Vide Annexure-G). This office order dated 17.8.92 was also forwarded to the Head Quarters at New Delhi. A superannuation notice dated 29.1.93 was served upon the respondent by the appellants wherein it was stated that the respondent would retire from service on reaching the age of superannuation on 31st January, 1994 and he was also directed to submit necessary papers in connection with his retiral benefits (Vide Annexure-H). In the meantime, the petitioner was promoted to the post of Deputy Manager (General) and was working in that post. At this point of time to his surprise he received two orders from the appellants dated 25th January, 1993 and 30th March, 1993. By the order dated 25th January, 1993, it was directed that the respondent on attaining the age of superannuation would retire from service in the afternoon of 31st January, 1993 and by the second order, that is, order dated 30th March, 1993, the General Manager of the F.C.I. clarified that the rectification of his date of birth as effected under office order dated 19.5.88 of the Zonal Manager, F.C.I., had not been accepted by the authority on the ground that the request for alteration of the date of birth had not been made by him within 5 years of his entry into the Government service before the petitioner was declared quasi permanent in the post of Junior Clerk by the then Regional Director (Food) and as such the petitioner would be deemed to have retired from service on superannuation with effect from 31st January, 1993. 2. Being aggrieved by these two orders dated 25th January, 1993 and 30th March, 1993 (Vide Annexure-F), the respondent brought the writ petition in question before a Single Bench of this Court challenging them as illegal, arbitrary and invalid and praying for issue of appropriate writs under Article 226 of the Constitution of India. 3. 2. Being aggrieved by these two orders dated 25th January, 1993 and 30th March, 1993 (Vide Annexure-F), the respondent brought the writ petition in question before a Single Bench of this Court challenging them as illegal, arbitrary and invalid and praying for issue of appropriate writs under Article 226 of the Constitution of India. 3. The learned/Single Judge after hearing both the parties came to the finding that in view of the Matriculation Certificate, the writ petitioner was born on 4th January, 1936 and since the genuineness of that Matriculation Certificate was not disputed or challenged and since the wrong entry in the Service Record as to the petitioner's date of birth had been corrected in Form No. VI and on the basis thereof the petition had been given several service benefits, rules of equity required that substantive benefit should be meted out to the petitioner ignoring technicalities and the learned Single Judge allowed the writ petition directing the F.C.I. to allow him to join his duties and serve till 31st May, 1994 and to give him all service benefits in accordance with law. 4. Being aggrieved by and dissatisfied with the said decision of the Single Bench, the appellants have preferred the present appeal challenging the impugned judgment as illegal and invalid and unsustainable. The case of the appellants is that on 15.12.1968, the service of the respondent was transferred to the Food Corporation of India Office under the Regional Director of Food, Eastern Region, Government of India and on that date his date of birth as recorded in his Service Book was 4.1.1935 and on 9.8.1978, he filed an option in Form No. I to be a member of the F.C.I. Employees Insurance Scheme where he himself wrote his date of birth as 4.1.1935 in his own hand. Thereafter, on 30th October, 1978, he filed a statement in Form No. III in which he gave a declaration of his date of birth as 4.1.1935 in his own handwriting. Thereafter, on 30th October, 1978, he filed a statement in Form No. III in which he gave a declaration of his date of birth as 4.1.1935 in his own handwriting. Then, in terms of Rule 202 of the Supplementary Rules of the Central Government, he was allowed to verify the relevant entries of the Service Book including the entry about the date of birth at least 3 times and in support of the correctness of the relevant entries thereof he put his signature in the Service Book on all the three occasions without ever objecting to that date of birth as contained therein. 5. The further contention of the appellants is that as late as on March 21, 1988 when he had completed more than 33 years of his service he made an application before the Zonal Manager for the rectification of his date of birth on the basis of xerox copies of the Matriculation Certificate and Admit Card. According to the Note-5 of the Fundamental Rule 56 framed by the Government of India, the date of birth declared by the Government servant on the date of appointment and accepted by the authority and entered into the Service Book is not to be subjected to alteration except as specified in the said Note. Under that Note alteration of the date of birth of the Government servant can only be made if a request is made with regard to the same within 5 years after his entry into the Government service and that such application may be made only with the sanction of the Ministry of the concerned department of the Central Government. But the writ petitioner/respondent has neither made any such application before the appropriate authority as mentioned above nor filed the application within the prescribed period, that is, 5 years of his entry into the Government service. Under such circumstances, according to the appellants, the date of birth as wrongfully altered by the Zonal Manager of the F.C.I. by its order dated 19.5.88 was not accepted by the competent authority of the F.C.I. and it cancelled that office order by passing an order dated 25.1.93 directing thereby that the writ petitioner-respondent would retire on attaining the age of superannuation considering the fact that his date of birth was 4.1.1935, that is to say, he would retire from his service on 31.1.1993. 6. 6. The contention of the learned Advocate for the appellant is that according to the judgment of the Apex Court reported in Union of India vs. Harnam Singh, AIR 1993 SC 1367 , a Government servant who makes an application for correction of date of birth beyond the time so fixed cannot claim as a matter of right the correction of his date of birth, even though he has good evidence to establish that the recorded date of birth is clearly erroneous. It has been further held that the law of limitation may operate harshly, but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid or those who sleep over their rights and allow the period of limitation to expire. Learned Advocate for the appellant refers to another judgment, which is unreported, dated 7th February, 1995 passed by a Division Bench of this Court which is also in the same line. According to learned Advocate, in view of the settled principle of law which is applicable to the facts and circumstances of the present case, the writ petitioner- respondent was not entitled to get his date of birth rectified and in the result, the writ petition ought to have been dismissed and the present appeal should be allowed. 7. According to learned Advocate, in view of the settled principle of law which is applicable to the facts and circumstances of the present case, the writ petitioner- respondent was not entitled to get his date of birth rectified and in the result, the writ petition ought to have been dismissed and the present appeal should be allowed. 7. Note-5 of the Fundamental Rule 56 lays down that the date on which a Government servant attains the age of 58 or 60 years, as the case may, shall be determined with reference to the date of birth declared by the Government servant at the time of his appointment and accepted by the appropriate authority on production as far as possible of confirmatory-documentary evidence, such as, High School or Higher Secondary or Secondary School certificate of extracts from birth register and the date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subjected to any alteration except as specified in this note and an alteration of the date of birth of the Government servant can be made with the sanction of a Ministry or Department of the Central Government concerned if (a) a request in this regard is made within 5 years of his entry into the Government service; (b) it is clearly established that a genuine bona fide mistake has occurred and; (c) the date of-birth so altered would not make him ineligible to appear in any School or University or Union Public Service Examination in which he had appeared or for entry into the Government service on the date on which he first appeared in such examination or on the date on which he entered into the Government service. 8. A careful and close reading of the above provisions of Note-5 would reveal that the date of birth of the Government servant as declared by him will have no significance unless it is accepted by his appointing authority on the strength of confirmatory, documentary evidence, that is, a document like Matriculation Certificate or Admit Card etc. if he is a matriculate or has appeared at the Matriculation or equivalent examination. In other words, the acceptance by the authority of the date of birth as declared by the Government servant is imperative and it must have to be on the basis of some document of the nature as stated above. if he is a matriculate or has appeared at the Matriculation or equivalent examination. In other words, the acceptance by the authority of the date of birth as declared by the Government servant is imperative and it must have to be on the basis of some document of the nature as stated above. In the present case, it is the definite assertion of the writ petitioner in his affidavit that he submitted his Matriculation Certificate before the competent Officer of the Regional Director of Food, Eastern Region, and after being satisfied they accepted the date of birth as declared by him as genuine. The writ petitioner has also stated that as per his Matriculation Certificate or Admit Card his date of birth was 4th January, 1936. It is very significant to note that as against these statements of the petitioner on oath, the F.C.I. in its affidavit-in-opposition nowhere made any whisper of denial. As a result, all these statements have remained undisputed and they are to be taken as admitted facts. That being so, the question is posed as to if the authority accepted the date of birth as given by the writ petitioner on the basis of the Matriculation Certificate or Admit Card produced by him at the time of his entry into the Government service as correct and if that Matriculation Certificate, the genuineness of which has not been challenged by the appellant F.C.I., shows that the date of birth of the writ petitioner is 4th January, 1936, then how according to the F.C.I., the date of birth of the petitioner could be accepted as 4th January, 1935. It is not the case of the appellants that the writ petitioner did not file this Matriculation Certificate/Admit Card as a document of his date of birth at the time of his entry into the service and filling-in of the declaration form. In view of the legal position stated above it is incumbent upon the employer to accord acceptance or otherwise to the date of birth as given by the Government servant in his declaration form and if it is accepted by them, then it must be presumed that such acceptance was on the basis of verification of some documentary evidence with regard to the age of the candidate after the authority was satisfied about its genuineness. Now, if the F.C.I., claims that the date of birth of the writ petitioner-employee was originally declared as 4th January, 1935, but it was subsequently interpolated and overwritten into 4th January, 1936, then the employer will have to face the burden of showing the document on the basis of which they confirmed and accepted the date of birth so declared by the petitioner as alleged, that is, 4th January, 1935. But, they are not producing any such document. On the contrary, they have allowed the sworn statement of the writ petitioner to remain undisputed that while filing his declaration in the prescribed form he produced his Matriculation Certificate and the authority after verifying the said date of birth with that in the Matriculation Certificate accepted the same and thereafter, it was recorded in his Service Book. In view of the provisions of Note-5, we cannot conceive of a situation where the authority would accept the date of birth declared by the Government servant concerned without getting it confirmed by some documentary evidence. It is not the case of the appellants that the respondent did not produce any document. Had it been their case then that also would not have been tenable, because in view of the above rule they cannot accept any such date of birth without consulting some document to be produced by the appointee. 9. Thus, judged from any standpoint the claim of the appellants appears to be paradoxical and suffers from self-contradiction. Their case that the date of birth as declared by the respondent and as accepted by the authority was 4.1.35 is irreconcilable with the admitted position that the respondent produced his Matriculation Certificate for this purpose wherefrom his date of birth appears to be 4.1.36 and after consulting that very document the appointing authority accepted it. The appellants have put the blame on the respondent and held him responsible for the interpolation. But, since the Service Book of an employee is not supposed to be kept in the custody of that employee himself such accusation is of no avail. It is also the contention of the appellants that the respondent in a number of correspondences with the authority mentioned his date of birth as 4.1.35 and not 4.1.36 and this fact only suggests that originally the date of birth was recorded as 4.1.35. It is also the contention of the appellants that the respondent in a number of correspondences with the authority mentioned his date of birth as 4.1.35 and not 4.1.36 and this fact only suggests that originally the date of birth was recorded as 4.1.35. In view of the foregoing reasons this argument also is without any force. The authority having accepted the date of birth on the basis of an admittedly genuine document, viz., Matriculation Certificate cannot come forward with an inconsistent case that they accepted a date of birth which was different from what is disclosed by this Matriculation Certificate. On the other hand, if it is their case that the document which this Government servant produced at that time contained his date of birth as 4.1.35 and on the basis of this they accepted the same, then they will have to discharge the burden of showing or exhibiting that document before the Court. But, as we have pointed out above, the appellants have kept conspicuously silent in this regard and have not disputed or denied the statement of the writ petitioner that his initially declared date of birth as given in Col.-5 of the Declaration Form was duly certified by the Deputy Director on the basis of Matriculation Certificate (Vide para 3 (v) of the writ petition). 10. Even if for the sake of argument it is assumed for a moment that the date of birth was wrongly recorded as 4th January, 1935 in spite of the fact that the Matriculation Certificate was produced before them and they accepted that date of birth as correct after getting it verified from the contents of that Matriculation Certificate, then it cannot be said that the responsibility will devolve entirely upon the Government servant alone and he will have to suffer the liability arising out of the provisions of Note-5, Rule 56 of the Fundamental Rules mentioned above. The appointing authority in such a case has to share the responsibility for the wrong entry, if at all. 11. These are the circumstances which make the present case at our hand quite different from the cases in which the judgments relied upon by the appellants were pronounced. The appointing authority in such a case has to share the responsibility for the wrong entry, if at all. 11. These are the circumstances which make the present case at our hand quite different from the cases in which the judgments relied upon by the appellants were pronounced. In the decision of the Apex Court reported Union of India vs. Harnam Singh, AIR 1993 SC 1367 , it has been held that a Government servant who makes an application for correction of date of birth beyond the period of five years as provided under the Fundamental Rule 56 cannot claim as a matter of right the correction of his date of birth even if he has got evidence to establish that the recorded date of birth is clearly erroneous and that the law of limitation may operate harshly but it has to be applied with all its rigour and the Courts and Tribunals cannot come to the aid of those who slept over their rights and allowed the period of limitation to expire. Emphasis should be laid on the expression used in the ruling of the Apex Court viz., as a matter of right which means that the Court is not imposing an absolute bar and is impliedly leaving room for a discretion to be exercised by a Court in appropriate and deserving cases. In our instant case, it cannot be said that the employee concerned slept over his right to get a wrong entry corrected within any particular period. 12. In the case under reference the fact was that the concerned employee was a non-matriculate at the time of his entry into his service as Class-IV employee and his date of birth was recorded in the Service Book on the basis of what was stated by him. But, later on he appeared at the matriculation examination and he passed the same and thereafter, he was appointed as L.D.C. in the Ministry of Home Affairs and at that time the entry was added in his Service Book showing his educational qualification beneath the earlier entry metric failed. Curiously enough, the date of birth which appeared from his Matriculation Certificate was different from what he gave earlier and at the time of such entry of the new qualification, the new date of birth as found in the Matriculation Certificate was not entered in his Service Book. Curiously enough, the date of birth which appeared from his Matriculation Certificate was different from what he gave earlier and at the time of such entry of the new qualification, the new date of birth as found in the Matriculation Certificate was not entered in his Service Book. After about 33 years, on receiving the notification about the date of his superannuation as 31.5.92, he came to realize that he was being retired on the basis of his date of birth originally recorded in his service record as 20.5.34 ignoring the date of birth as reflected in his Matriculation Certificate namely, 7.4.38. He then submitted a representation for alteration of his date of birth on the basis of his Matriculation Certificate but that was rejected by the authority. The above verdict of the Apex Court was pronounced in such facts and circumstances in view of the provisions of the Fundamental Rule 56, Note-5. As we have noted, the facts and circumstances of the instant case are altogether different. Here, the case of Government servant concerned is that he produced the necessary documents about age in support of his claimed date of birth and being satisfied about that the authority accepted the same and recorded it in his Service Book correctly, but subsequently, that entry was interpolated by somebody of the concerned department and hence, he filed this case, whereas the authority while not disputing that the employee concerned furnished his Matriculation Certificate which he is now showing and it accepted his date of birth on the basis thereof comes forward with a case that the employee declared his date of birth as 4th January, 1935 and not 4th January, 1936 at the time of his entry into the service. We have shown during the foregoing discussion that there is substance in the case made out by the respondent. Therefore, the abovementioned principle as enunciated by the Apex Court will not be applicable to this case. 13. Similarly, the other unreported judgment of a Division Bench of this Court referred to by the appellants cannot be attracted to the facts and circumstances of this case for similar reasons. In this case under reference, the petitioner Government servant who was a non-matriculate was appointed on 4.4.52. 13. Similarly, the other unreported judgment of a Division Bench of this Court referred to by the appellants cannot be attracted to the facts and circumstances of this case for similar reasons. In this case under reference, the petitioner Government servant who was a non-matriculate was appointed on 4.4.52. At the time of his appointment he was medically examined and the doctor opined that he was aged about 20 on that date of examination and accordingly, his date of birth was recorded as 2.4.31 in his service record. As late as on 4.3.89, he applied for correction of the entry regarding his date of birth in accordance with the date of birth that was available in his school leaving certificate. The Division Bench relying on the abovementioned ruling of the Apex Court came to a similar finding on the ground that he having not filed such application within the prescribed period of five years from the date of his entry into the service was not entitled to claim such an alteration in his date of birth at the fag end of his service life after receiving the notice about superannuation. Clearly, the facts of this case also are not identical with those of the instant one and for the reasons discussed above this finding will also not be applicable to this case. 14. In both the decisions cited it is thus seen that the dates of birth of Government servants concerned were recorded in their Service Books on the basis of certain documents filed-in one case an Admit Card and, in the other, opinion of medical expert on ossification test and later on they submitted different documents and called upon their respective authorities to alter their dates of birth on the basis of these new documents and this they did at the fag end of their service career on receiving the notice of superannuation. This naturally, could give rise to the doubt that the subsequent document which they were producing were afterthought and the product of their clever design to make some wrongful gain by reducing their age by a number of years. It might be reasonably suspected that none of these subsequently filed documents came into origin at the time of his appointment when he furnished different testimonials to how his age. It might be reasonably suspected that none of these subsequently filed documents came into origin at the time of his appointment when he furnished different testimonials to how his age. But, there is no room for any such doubts being raised regarding the genuineness or bona fides of the document filed by the respondent in the present case. Here, as we have already observed, admittedly, the respondent has been found to rely upon one and a single document uniformly from the very beginning about his date of birth, namely, the Matriculation Certificate and undisputedly, also this certificate was filed by him before the authority along with his declaration form at the very outset. His claim has been found by us to have been substantiated. Thus, these facts make this case clearly distinguishable from the cases under reference. The Supreme Court or the Division Bench of this Court in the abovementioned judgments have not decided a case of this nature. Such verdicts have not been given in a case Matriculation Certificate, an admittedly genuine document, was produced by the Government servant concerned before the authority and admittedly, the authority accepted the date of birth as declared by the candidate on the basis of that Matriculation Certificate and where later, the authority comes forward with a case that, the said date of birth was not a correct one though admitting the genuineness of that Matriculation Certificate. Anticipating such an eventuality the Apex Court has perhaps used the phrase "as a matter of right" meaning thereby that they did not intend this prohibition of general or hard and fast nature, but that in exceptional and deserving cases the appropriate authority of the Government would remain clothed with a discretionary power to lift the time-bar to dispense substantive Justice in an appropriate case. 15. In our considered view, therefore, in the present case there remains the scope for exercising a judicious discretion in favour of the writ petitioner-respondent otherwise the principle of natural Justice will be seriously impeded and impeded. It will be wrong to hold that an employee will be absolutely debarred from filing any representation for rectification of his date of birth beyond the prescribed time limit irrespective of what the nature of his case is and whether there are exceptional and distinguishing features in his case showing his bona fides. It will be wrong to hold that an employee will be absolutely debarred from filing any representation for rectification of his date of birth beyond the prescribed time limit irrespective of what the nature of his case is and whether there are exceptional and distinguishing features in his case showing his bona fides. Having regard to the entire discussion made above, we are inclined to hold that the view adopted by the learned Single Judge is inconsonance with the principles of Justice, equity and good conscience and at the same time is not indeviation of the principles enunciated in the judgments referred to above. In the result, we uphold the same and dismiss the appeal, however, without making any order as to cost.