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2004 DIGILAW 826 (MP)

GIRISH NATH v. UNION OF INDIA

2004-10-08

K.K.LAHOTI, R.V.RAVEENDRAN

body2004
ORDER K.K. Lahoti, J. The petitioner has challenged the order of Central Administrative Tribunal, Jabalpur Bench, Jabalpur in O.A. No. 796/1999 dated 9-9-2002, by which the application of petitioner was dismissed. Before the Tribunal petitioner sought relief for his change of date of birth in service record, which was not acceded, the prayer of petitioner was found without any merit and rejected by the Tribunal. The petitioner joined Government service in Ordnance Factory, Khamariya, Jabalpur on 1-11-1965 by appointment order dated 28-10-1965. He was appointed on the post of Grinder in the cadre of highly skilled Grade-II. At the time of entry into Government service his date of birth was ascertained on the basis of medical examination and was recorded as 28-10-1942 in the service book. petitioner for the first time filed an application on 5-3-1993 to the respondents along with affidavit dated 4-3-1999 stating that petitioner was born at village Dinappur, Ghazipur, Uttar Pradesh and studied there upto Class-Vth. In the school certificate his date of birth is recorded as 1-3-1947 and on this ground he prayed for correction of his date of birth in the service book. The respondents did not accepted the prayer of petitioner for correction of date of birth and informed petitioner vide letter dated 29-3-1999 (Annexure P-4) that his date of birth was recorded on the basis of medical examination and as per rules the petitioner ought to have sought change of date of birth within five years from the date of joining in the Government service. As the petitioner did not do so in time, no action can be taken on the basis of application. Aggrieved by the aforesaid order petitioner preferred an original application before Central Administrative Tribunal, Jabalpur which was registered as O.A. No. 313/99 and was disposed off at admission stage on 3-8-1999 directing the respondents to decide the representation of petitioner. Thereafter, on 28-8-1999 the representation of petitioner was decided and rejected on the ground that the petitioner was appointed in the Factory on 28-10-1965, when the date of birth was usually recorded on the basis of educational qualification certificate but in absence of the same, the age was assessed on medical examination. The petitioner at the time of joining the service failed to produce any documentary evidence, with regard to date of birth. The petitioner at the time of joining the service failed to produce any documentary evidence, with regard to date of birth. The age was ascertained on medical examination as 28-10-1942 and duly recorded in the service book accordingly. Petitioner had also signed in the service book in token of accepting the date of birth at the time of appointment. If the petitioner wanted to change or correct the date of birth already recorded ought to have applied within five years of appointment supported by necessary documents. Petitioner failed to do so, cannot ask for change of date of birth after 33 years of service, at the fag end of service. On the aforesaid ground the representation was rejected by the order Annexure P-6. Thereafter petitioner challenged the order Annexure P-6 before the Central Administrative Tribunal, Jabalpur. The Tribunal found that the petitioner's date of birth was recorded in his service book on the basis of his medical examination, petitioner put his signature on the medical report, on the basis of which his date of birth was recorded in the service book. Petitioner accepted his age and date of birth and signed the service book in the year 1965. The petitioner for the first time in the year 1993 made representation in this regard and challenged the date of birth at the fag end of his service career in the year 1999. Relying on the law laid down by the Apex Court in Union of India Vs. Harnam Singh, , dismissed the petition. The learned counsel appearing for petitioner challenged the order on following grounds:- 1. That the petitioner's date of birth was not correctly recorded in the service book, which ought to have been corrected by the respondents on the basis of educational certificates. Petitioner approached to the authorities with documentary evidence, the respondents ought to have corrected the date of birth of petitioner, which was supported by genuine documents. The learned counsel for respondents opposed the prayer and contended that the date of birth was recorded in the service book in the year 1965 after medical examination of the petitioner. The petitioner signed relevant medical certificates and service book and has not challenged aforesaid for a considerable long period of more than 33 years. In these circumstances, at the fag end of service career the date of birth of petitioner cannot be changed. The petitioner signed relevant medical certificates and service book and has not challenged aforesaid for a considerable long period of more than 33 years. In these circumstances, at the fag end of service career the date of birth of petitioner cannot be changed. The respondents have duly considered the representation as directed by the Tribunal and has rightly rejected it. The Tribunal after considering the material on record has rightly dismissed the petition and there is no merit in this petition, warranting interference of this Court. Considering the rival contentions, documents and order by the Tribunal following factual position emerges. The petitioner was appointed on 28-10-1965 as Grinder, which is highly skilled Grade-II post. The petitioner did not file any documents at the time when he was appointed. The date of birth of petitioner was recorded in the service record on the basis of medical examination. The medical authorities at the relevant time found and certified the date of birth of petitioner as 28-10-1942 and accordingly this date of birth was recorded in his service book. For a considerable long period of near about 33 years petitioner did not challenge his date of birth. It is not the case of petitioner that the relevant document relating to education was produced at the time of appointment. For the first time on 5-3-1993 petitioner approached to the respondents for correction in the date of birth along with school certificate. The respondents considering the relevant provision rejected the prayer. The petitioner challenged the order of authorities before the Central Administrative Tribunal and the Tribunal by order dated 29-3-1999 directed respondents to consider the representation which was considered and rejected. The aforesaid facts show that at belated stage, the petitioner approached to the respondents for correction of date of birth. The Apex Court in similar circumstances in the case of Harnam Singh (supra) held:- 7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. 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 of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam and Another Vs. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam and Another Vs. Daksha Prasad Deka and Others, a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC p. 625-26, para 4) .......The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record. Note 5 to Fundamental Rule 56(m) governing correction of date of birth in the service record, substituted by Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms Notification No. 19017/79/Estt-A dated November 30, 1979 published as S.O. 3997 in the Government of India Gazette dated December 15, 1979 limits the exercise of the right by the Government servant to seek alteration of his date of birth only within the specified period. The provision reads as under: Note 5 - The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of 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 or extracts from Birth Register. The date of birth so declared by Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving if - (a) a request in this regard is made within five years of his entry into 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 Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service. The approach of the Tribunal does not commend to us as it attends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government servants between those who joined service before and after 1979. It is a too simplistic way of looking at the issue, ignoring the ground realities and the intention of the rule-making authority to discourage stale claims and non-suit such Government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. To say that the respondent, even though he signed the service-book at a number of places at different times and saw the seniority lists, may not have still come to know as to what his recorded date of birth was, is to ignore the normal human conduct and put premium on negligence. The observations of CAT quoted above are neither logical nor sound. of course, Note 5 to FR 56(m) was incorporated only in 1979 arid it provides for request to be made for correction of date of birth within five years from the date of entry into service but what is necessary to be examined is the intention of the rule-making authority in providing the period of limitation for seeking the correction of the date of birth of the Government servant viz. to discourage stale claims and belated applications for alteration of date of birth recorded in the service-book at the time of initial entry. It is the duty of the courts and tribunals to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule-making authority to give unlimited time to seek correction of date of birth, after 1979, to those Government servants who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979. Indeed, if a Government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non-suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of Government servant who applied for correction of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those Government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979. This view would be in consonance with the intention of the rule-making authority. Recently the Apex Court in the case of State of U.P. and Others Vs. Smt. Gulaichi, considered the question of correction of date of birth recorded in service book at the verge of retirement, held:- 8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained, the sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of State of Assam and Another Vs. Daksha Prasad Deka and Others, this Court said (at SCC pp. 625-26, para 4) that the date of compulsory retirement must in our judgment, be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. In the case of Government of Andhra Pradesh and Another Vs. M. Hayagreev Sarma, the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births-and-deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. In the case of Government of Andhra Pradesh and Another Vs. M. Hayagreev Sarma, the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births-and-deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births-and-deaths register ignoring the Rules framed by the State Government referred to above. It was inter alia observed by this Court: (SCC p. 685, para 7) 7. The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth. In Executive Engineer, Bhadrak (R and B) Division, Orissa and Others Vs. Rangadhar Mallik, Rule 65 of the Orissa General Finance Rules was examined which provides that representation made for correction of date of birth near about the time of superannuation shall not be entertained. The respondent in that case was appointed on 16-11-1968. On 9-9-1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the order of the Tribunal saying that the claim of the respondent that his date of birth was 27-11-1938 instead of 27-11-1928 should not have been accepted on the basis of the documents produced in support of the said claim, because the date of birth was recorded as per the document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as 27-11-1928. The said respondent did not take any step nor made any representation for correcting his date of birth till 9-9-1986. In the case of Union of India Vs. The said respondent did not take any step nor made any representation for correcting his date of birth till 9-9-1986. In the case of Union of India Vs. Harnam Singh, the position in law was again reiterated and it was observed: (SCC p. 167, para 7) 7. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. An application for correction of the date of birth should not be dealt with by the courts, Tribunals or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and within the time fixed by any rule or orders. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continued for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior. 6-7. The petitioner did not make any effort for change of date of birth within a reasonable time. Belatedly he approached the respondents for correction of date of birth in service record. The basis for the claim for correction of date of birth is the educational certificate. Why this certificate was not produced at the time of entry into the service record is not explained. The petitioner's belated request was rightly rejected by the respondents. The Tribunal after considering the facts, and following the law laid down by the Apex Court in the case of Harnam Singh (supra) dismissed the petition. Why this certificate was not produced at the time of entry into the service record is not explained. The petitioner's belated request was rightly rejected by the respondents. The Tribunal after considering the facts, and following the law laid down by the Apex Court in the case of Harnam Singh (supra) dismissed the petition. In view of the settled legal position extracted above, we do not find any merit in the contentions to interfere with the decision of the Tribunal. This petition has no merit and is accordingly dismissed with no order as to costs. Final Result : Dismissed