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2000 DIGILAW 500 (GUJ)

Gulammiya Husainmiya Malek v. Union of India

2000-06-17

B.C.PATEL, P.B.MAJMUDAR

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JUDGMENT : P.B. Majmudar, J. The petitioner who was to be superannuated on 20th May, 2000, approached this Court on 29th May, 2000, challenging the order passed by Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in O.A. No. 269/98, Annexure : A on 12.10.99. The petitioner has prayed in para 15 (b) as under: 15(b) be pleased to issue a writ of mandamus or certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 12.10.1999 passed by the Division Bench of the Honourable Central administrative Tribunal, Ahmedabad Bench, in O.A. No. 269/1998, Annexure A, and further be pleased to quash and set aside the order dated 24.12.1986, Annexure D to the petition passed by the respondents herein by which the application of the petitioner for change of birth date from 17.5.1940 to 17.12.1942 has been rejected and further be pleased to direct the respondents herein not to superannuate the petitioner from service and permit the petitioner to continue on his present post by considering his date of birth as 17.12.1942 till he reaches the date of superannuation on the strength of his correct date of birth which is 17.12.1942." From the record, it appears that the Tribunal considered the facts and circumstances of the case and rejected the application. The petitioner was seeking change of his birth date in the service record. As per the railway record, date of birth of the petitioner is 17.5.1940. The petitioner has contended that his birth date is 17.12.1942 and hence he moved respondent no. 2 for correction of his date of birth on 18.8.1996. As that application was rejected, the application O.A. No. 269/98 was filed before the Tribunal. The Tribunal considered various aspects of the matter. Considering facts and circumstances of the case and the law laid down by the Apex Court. The Tribunal was not in a position to record any finding in favour of the petitioner. In paras 8 and 9 of the judgment, the Tribunal has considered the judgment of the Apex Court and has given its finding. The said paras 8 and 9 are as under. "8. The Tribunal was not in a position to record any finding in favour of the petitioner. In paras 8 and 9 of the judgment, the Tribunal has considered the judgment of the Apex Court and has given its finding. The said paras 8 and 9 are as under. "8. In the case of Union of India v. Harnam Singh reported in 1993 (2) SCC 162 , the Supreme Court has laid down that when the alteration in the date of birth was sought after 35 years of induction into the service by a Government servant then in view of the inordinate and unexplained delay in getting his date of birth corrected, the relief prayed for ought to be rejected. Thereafter again in the case of Union of India v. Kantilal Hemantram Pandya reported in 1995 (2) GLR 1650 , the Supreme Court relying on the Harnaam's case has laid down that the stale claims and belated applications for alteration of the date of birth recorded in the service book at the time of initial entry made after unexplained and inordinate delay on the eve of retirement need to be scrutinised carefully and interference made sparingly and with the circumspection. The approach has to be cautious and not casual. 9. Again in the case of Union of India v. Ram Suia Sharma, reported in (1996) 7 SCC 421 , the Supreme Court has laid down that the Court or the Tribunal at the belated stage cannot entertain the claim for the correction of date of birth duly entered in the service records. Again in the case of Commissioner of Police, Bombay v. Bhagwan L. Lahane, reported in (1997) 1 SCC 247 , the Supreme Court has again reiterated that the claim of correction of date of birth at the belated stage should be rejected and it should also be observed that the employee seeking alteration himself must show that his date of birth was wrongly recorded due to some other person or obvious clerical error and where the employee fails to do so, the relief should not be granted by the Administrative Tribunal." Thus, in view of this decision, nothing could have been done. However, the petitioner approached this Court by filing Special Civil Application No. 9781/99 and realising that there is no substance in the petition, requested the Court to allow him to withdraw that petition. However, the petitioner approached this Court by filing Special Civil Application No. 9781/99 and realising that there is no substance in the petition, requested the Court to allow him to withdraw that petition. On behalf of the petitioner a statement was made that he would like to avail remedy of review or representation for the purpose of change of birth date in service record, however, the Court has not reserved liberty to the petitioner to move the Tribunal for review or for making any representation. Division Bench of this Court on 9.12.99 permitted the petitioner to withdraw the petition and disposed of the petition as withdrawn at the admission stage itself. Despite this, review application was filed and as the review application was not heard, this Court was again approached challenging the decision of the Tribunal. 2. Earlier petition was filed challenging the decision rendered by the Tribunal and the petition was withdrawn. Obviously, the said decision could not be challenged by the petitioner before this Court again. There was no order passed by the Tribunal which could have been challenged by the petitioner. In our opinion, this is nothing but an abuse of process of law. Therefore, we dismiss this petition and we confirm the order passed by the Tribunal in O.A. 269/98 on 12.10.99. Notice is discharged. Copy of this order be forwarded to Tribunal forthwith. Petition dismissed.