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Allahabad High Court · body

2005 DIGILAW 2063 (ALL)

Ram Sumer v. Union Of India (UOI)

2005-10-20

R.P.YADAV

body2005
JUDGMENT : R.P. YADAV, J. 1. By means of this writ petition under Article 226 of the Constitution of India, the Petitioner prays for issue of a writ of certiorari quashing the orders dated 16.4.2002 and 20.2.2002 as contained in Annexures-1 and 2 to the writ petition and also for issuance of a mandamus commanding the opposite parties to permit him to continue in service till 31.10.2003 and pay him the salary regularly with consequential benefits. 2. The Petitioner was initially appointed by Officer Commanding Military Grain Deptt. Army Supply Corps, Lucknow in the year 1964 and his date of birth entered in his service book was as 4.4.1942. 3. It is alleged by the Petitioner that his actual date of birth is 5.10.1943 and that in the documents like Last Pay Certificate and Record Card his date of birth was shown as 5.10.1943, but the opposite party No. 2 issued a seniority list dated 11.6.1996 showing date of birth of the Petitioner as 4.4.1942. The Petitioner made a representation dated 14.11.2000 for correcting his date of birth in his service book. But the representation was rejected on 20.2.2002 and by the letter dated 16.4.2002 he was asked to retire with effect from 30.4.2002. It is alleged that his actual date of birth being 5.10.1943 and his superannuation age being 60 years, he cannot be prematurely retired on 30.4.2002. 4. The case of the Respondents as pleaded in the counter-affidavit is that the date of birth of the Petitioner at the time of his entry in service was entered in his service book as 4.4.1942. The said date of birth was accepted by the Petitioner at the time of his initial appointment and has been audited/verified by the Audit Authorities from time to time. The service book has been checked and signed by the Petitioner every year since his appointment and the Petitioner never made any complaint regarding his date of birth. The seniority list of all the employees of N.C.C. Department was maintained by the head of the department, i.e., Directorate General N.C.C., New Delhi and as per the seniority list issued by the Head of the Department which has been circulated to the Petitioner, his date of birth mentioned in the seniority list is 4.4.1942. The Petitioner never objected to the said date earlier and accepted the same as correct. 5. The Petitioner never objected to the said date earlier and accepted the same as correct. 5. It is also stated that the Petitioner was initially appointed by O.C. Military Grain Deptt. in the year 1962 and was transferred to Record A.M.C., Lucknow on 1.7.1970 and thereafter the Petitioner was transferred to N.C.C. Directorate, Lucknow on 25.9.1976. The date of birth of the Petitioner was recorded by the appointing authority initially as 4.4.1942 in his service book, which has never been challenged by the Petitioner. His contention that at the time of initial appointment, his date of birth was recorded as 5.10.1943 is baseless, wrong and false. It has also been alleged that at the time of initial appointment, the Petitioner was medically examined by the Competent Medical Authority and as apparent from the medical report dated 4.4.1964 of the medical authority, the age of the Petitioner was found to be 22 years according to the own statement of the Petitioner as well as by appearance. The opposite parties alleged that the date of birth of the Petitioner being 4.4.1942 he attained the age of superannuation on 4.4.2002 and was retired on 30.4.2002. It is also alleged that the Petitioner submitted his representation dated 14.11.2000 for alteration of his date of birth one and half years' before his date of retirement, which cannot be accepted as per the rules and any alteration in the date of birth is permitted only within 5 years of entry into Government service. The petition is alleged to be misconceived and liable to be dismissed. 6. A plea has also been raised that the Petitioner has an alternative remedy of approaching Central Administrative Tribunal and so this petition before this Court is not entertainable. 7. When this case was taken up for final hearing, the learned Counsel for the opposite parties vehemently urged that there being an alternative remedy available to the Petitioner u/s 14(1)(b) of the Administrative Tribunal Act, 1985, the writ petition before this Hon'ble Court is not maintainable. 7. When this case was taken up for final hearing, the learned Counsel for the opposite parties vehemently urged that there being an alternative remedy available to the Petitioner u/s 14(1)(b) of the Administrative Tribunal Act, 1985, the writ petition before this Hon'ble Court is not maintainable. In support of this contention, the learned Counsel for the opposite parties has referred to para 99 of the judgment of L. Chandra Kumar v. Union of India, 1997 (15) LCD 940 , which is being reproduced below : In view of the reasoning adopted by us, we hold that Clause 2 (d) of Article 323A and Clause 3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction : clauses in all other legislations enacted under the aegis of Articles 323A and 323B would to the same extent, be unconstitutional, the jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the power conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 8. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. 8. It is submitted by the learned Counsel that in view of the said authority, this Hon'ble Court has no jurisdiction to entertain the petition and the Petitioner must be relegated to the forum of alternative remedy. 9. The learned Counsel for the Petitioner conceded that the Petitioner had an alternative forum of Central Administrative Tribunal for raising his grievance. But he submitted that when this petition was filed the functioning of the Central Administrative Tribunal had been totally paralysed on account of abstention of the members of Bar from work on account of protesting against the move of the Government to abolish the Central Administrative Tribunal and in the circumstances, the Petitioner was compelled to approach this Hon'ble Court under Article 226 of the Constitution of India and that since this plea was not raised by the opposite parties at the earliest possible stage and the counter-affidavit and rejoinder-affidavits have already been exchanged and the matter being at the stage of final hearing, it would not be just and proper to relegate the Petitioner to the alternative forum. 10. In support of this argument, the learned Counsel has relied upon the cases of T.K. Rangarajan Vs. Government of Tamil Nadu and Others, AIR 2003 SC 3032 and R.P. Pandey v. U. P. Power Corporation Ltd. and Ors., 2004 (22) LCD 20. 11. The learned Counsel for the Petitioner has stated in the rejoinder-affidavit dated 15.9.2003 that in the month of April, 2002, when this petition was filed, the functioning of the Central Administrative Tribunal was totally paralysed on account of move of the Central Government to abolish the Central Administrative Tribunal and the Petitioner having no alternative, approached this Hon'ble Court by filing this writ petition. 12. No supplementary/additional counter-affidavit has been filed on behalf of the opposite parties to rebut the said allegation. This allegation goes, therefore, unrebutted and cannot be outright rejected. 13. In the case of T. K. Ranjan (supra) where on account of unprecedented action of the Tamil Nadu Government terminating the services of all employees who had resorted to strike for their demands, the writ petitions were filed before the High Court of Madras under Article 226/227 of the Constitution challenging the said action of the Tamil Nadu Government. 13. In the case of T. K. Ranjan (supra) where on account of unprecedented action of the Tamil Nadu Government terminating the services of all employees who had resorted to strike for their demands, the writ petitions were filed before the High Court of Madras under Article 226/227 of the Constitution challenging the said action of the Tamil Nadu Government. A single Judge of the Hon'ble High Court granted interim order, which was challenged by the State Government by filing appeals. In appeals, the Divisions Bench of Hon'ble High Court set aside the interim order and arrived at the conclusion that without exhausting the alternative remedy of approaching the Administrative Tribunal, writ petitions were not maintainable. That order was challenged before Hon'ble Apex Court. The Hon'ble Apex Court referring to para 99 of the judgment of L. Chandra Kumar (supra) held as follows : There cannot be any doubt that the aforesaid judgment of larger Bench is binding on this Court and we respectfully agree with the same. However, in a case like this, if thousands of employees are directed to approach the Administrative Tribunal, the Tribunal would not be in a position to render justice to the cause. Hence, as stated earlier, because of very exceptional circumstance that arose in the present case, there was no justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute. 14. In the case of R.P. Pandey (supra) a Division Bench of this Hon'ble Court while dealing with the matter of relegating the Petitioner to the alternative forum after exchanging the counter-affidavit and rejoinder-affidavit by the parties has stated the law as follows : While considering as to whether the petition should be dismissed on the ground of alternative remedy at the time of hearing or not, one aspect of the matter which requires consideration is as to when the petition was filed, what orders have been passed by the Court and the period of pendency of the petition before the High Court. 15. 15. It is to be seen that if the High Court had taken up the petition for admission or hearing and thereafter has passed an order by conscious application of mind either for filing counter-affidavit with or without requiring the production of records or it has formally admitted the writ petition and has allowed time to file counter-affidavit and has not rejected the writ petition on the ground of alternative remedy on the date wherein the petition has been entertained though it was fully in the knowledge of the Respondents that such petition would not be maintainable and either such objection has not been raised at that time or the High Court of its own did not feel it appropriate to dismiss the writ petition on the ground of availability of alternative remedy, then in these circumstances, it would normally be not appropriate to dismiss the writ petition at the time of hearing when affidavits have been exchanged between the parties and the matter is being listed for hearing, on the ground of alternative remedy. 16. The period for which the petition has remained pending from the date of passing such an order, till the date of hearing is also a relevant consideration, which may be taken into consideration while considering such an issue. 17. If the petition has been entertained, there would be little justification, unless the reasons are such which would not warrant the adjudication under Article 226 of the Constitution, to dismiss the writ petition on the ground of alternative remedy. By the term 'entertaining' the writ petition, one has to keep in mind that in recent trend formal orders of admission of writ petitions are rarely passed and while issuing notices or where the notices already stand served on the respective standing counsel, the High Court passes an order for filing counter-affidavit, if prima facie satisfied about the case in hand and thereafter fixes dates for orders/hearing. The dismissal of the writ petition on the ground of alternative remedy at the time of hearing, as already observed, can only be ordered in such cases where the adjudication under Article 226 of the Constitution is either not possible or is not desirable. One of the factors, which would relegate the Petitioner to the alternative remedy, may be the requirement of recording findings on disputed questions of fact or some other such relevant consideration. One of the factors, which would relegate the Petitioner to the alternative remedy, may be the requirement of recording findings on disputed questions of fact or some other such relevant consideration. In a case where in terms of the order passed on the writ petition, the parties have exchanged their affidavits and have brought on record the material which is being relied upon from both the sides in support of their respective claims and which does not require appreciation of evidence nor require any adjudication on disputed questions of fact or the order is found to be wholly without jurisdiction or is found to be based on absolutely no material or is covered by any of the exceptions and proposition laid down by the Supreme Court in the case of Whirlpool Corporation (supra), there would be little justification to dismiss the writ petition at that stage, on the ground of availability of alternative remedy. 18. Apart from this, if in a writ petition, on the exchange of affidavits, the petition can be decided only on appreciation of legal proposition or only by adverting to the law, as may be applicable, in such a case and that too on the given facts which are no more in dispute, the High Court would not be justified in dismissing the writ petition on the ground of alternative remedy at the time of hearing of the writ petition. 19. 19. The rule of alternative remedy is a rule of convenience but it should not be applied in such strict manner at every stage of the proceedings which may cause great hardship to the litigant, as once the litigant approaches the High Court, his petition is not dismissed on day one on the ground of alternative remedy but is allowed to be entertained under the orders of the High Court and is kept pending either for its turn to come on the board or for the time consumed in exchange of affidavits, which time is again granted by the High Court sometimes and then after a lapse of considerable period when the matter is taken up, the Petitioner asked to go to the alternative forum at the time of hearing which would again mean long drawn litigation from square one, as the Petitioner is again much below the line of pending cases filed during the aforesaid period, i.e., from the date when the petition was entertained and the date when the petition has been dismissed. The right of litigant to have speedy justice would thus be frustrated. It is, therefore, necessary that a petition where efficacious, speedy and alternative remedy is available should be refused from being entertained at the outset, if not at the outset, then in the earliest possible time." 20. This petition was filed on 19.4.2002. It was placed before Hon'ble U. K. Dhaon, J. On 22.4.2002, following order was passed by Hon'ble U. K. Dhaon, J. Heard learned Counsel for the Petitioner and Sri Syed Husain, Additional Standing Counsel, Central Government, who has put in appearance on behalf of the opposite parties. List/put up this petition on 25.4.2002, on which date the service book of the Petitioner will be produced by the opposite parties. On 25.4.2002, the service book of the Petitioner was not produced. However, it was produced on 30.4.2004. On 30.4.2004, Hon'ble U. K. Dhaon, J., passed the following orders on the application for interim relief : Heard learned Counsel for the applicant/Petitioner and Shri Syed Hussain, learned additional standing counsel. The service record which was produced before this Court reveals that the date of birth of the Petitioner is 4.4.1942 No case for grant of interim relief is made out. Accordingly, the application is rejected. The service record which was produced before this Court reveals that the date of birth of the Petitioner is 4.4.1942 No case for grant of interim relief is made out. Accordingly, the application is rejected. On the same date another order was passed as follows : Sri Syed Hussain, learned additional standing counsel prays for and is granted six weeks' time to file counter-affidavit. List this petition in the last week of July, 2002. 21. It was in pursuance of this order, the counter-affidavit was filed by the opposite parties on 8.10.2002. Alongwith application for condonation of delay, the Petitioner filed rejoinder-affidavit thereto on 15.9.2003. 22. It transpires from the order noted above that when this case was initially taken up and the matter was heard at admission stage and for grant of interim relief, the plea of alternative remedy was not raised. The parties have already exchanged counter-affidavit and rejoinder-affidavits. The matter is also ripe for final hearing, so at this stage it would not be proper to relegate the Petitioner to the alternative forum because that would frustrate the purpose of filing of the petition and it would amount to gross injustice as held in R.P. Pandey's case (supra). If at this stage of final hearing the Petitioner is asked to go to the alternative forum that would again mean long drawn litigation from square one, the Petitioner would again be placed much below the line of pending cases filed during the aforesaid period, i.e., from the date when the petition was entertained and the date when the petition is dismissed and as such the right of litigant to have speedy justice would stand frustrated and gross injustice will be caused. The opposite parties also did not raise this plea at the earliest possible opportunity and they cannot be permitted to raise it now. 23. Therefore, in the extraordinary circumstance in which this petition was filed and the present circumstance when there has been much delay and the case is at the final stage, relegating the Petitioner to the alternative forum, will not be in the interest of justice. 24. Now, coming to the merits of the case, the Petitioner claims his date of birth as 5.10.1943, whereas in the service record his date of birth is entered as 4.4.1942. The Petitioner made representation on 14.11.2000 when he was to retire from service within less than 2 years. 24. Now, coming to the merits of the case, the Petitioner claims his date of birth as 5.10.1943, whereas in the service record his date of birth is entered as 4.4.1942. The Petitioner made representation on 14.11.2000 when he was to retire from service within less than 2 years. Rule 56 of the Fundamental Rules says that the date of birth may be challenged within five years of entry into Government service. Such representation at a latter stage cannot be entertained. The entry of date of birth in service book has been duly verified and signed by the Petitioner' himself. He did never dispute the correctness of the same since 1964 to the year 2000. The seniority list showing his date of birth as 4.4.1942 was circulated and duly signed by the Petitioner on 30.9.1996. Even then he did not raise any objection. 25. The learned Counsel for the Petitioner has submitted that in the Last Pay Certificate (Annexure-4) and Record Card (Annexue-5), the date of birth of the Petitioner has been shown as 5.10.1943. It is not explained by the Petitioner as to how 5 10.1943, was recorded as his date of birth in these two documents, when his service book clearly indicated his date of birth as 4.4.1942. If any mistake had occurred at the initial stage, the Petitioner ought to have taken steps for getting the same corrected at the earliest possible opportunity, say within a period of five years, as provided under rules. The date of birth entered in service book will be taken as correct unless proved otherwise. The opposite parties have filed medical certificate issued on 4.4.1964, by the authorised Doctor showing the age of the Petitioner as 22 years and it was so recorded on the basis of the own statement of the Petitioner and also on the basis of his appearance. Medical Officer had no reason to record his incorrect age. 26. The learned Counsel for the Petitioner referred to the case of Smt. Shanti v. State of U. P. and Ors., ESC (All) 1042, and contended that the mistake having occurred deserves correction. In this case, the date of birth entered in service book was found to be incorrect and was directed to be corrected but it was on account of tampering and overwriting over the date of birth in service book. In this case, the date of birth entered in service book was found to be incorrect and was directed to be corrected but it was on account of tampering and overwriting over the date of birth in service book. It has been submitted by the learned Counsel that the medical certificate as held in the said case cannot be taken to be evidence regarding the age of the Petitioner and therefore, the opposite parties committed error in relying upon the medical certificate issued by the Medical Officer, whereas in the school certificate, the date of birth of the Petitioner was shown as 5.10.1943. There is no material on record to show that at the time of his initial appointment, the Petitioner had produced the school certificate in respect of his age, although in the service book the Petitioner is shown to have received education upto 8th class. But there is nothing to show that he had filed certificate showing his date of birth as 5.10.1943. He does not say that any alteration, interpolation or overwriting has been made subsequently in his service book. 27. In the case of Smt. Shanti (supra) there is reference of the case of Adhishasi Abhiyanta Electricity, Rihand and Hydel Civil Division I.P.S.E.B. Allahabad and Ors. v. Shitala Prasad and Anr. 1994 (1) AWC 468 , in which the Division Bench of this Hon'ble Court had observed in para 9 as follows : Apart from the view which we have taken that the medical fitness certificate is not an evidence regarding age of the Petitioner, we are also of the view that the exercise regarding ascertaining the age of the Petitioner in absence of High School or a birth certificate issued by the local authority had to be done at the time of first appointment while making the entry regarding his date of birth in the service book. It was certainly open for the Petitioner to have obtained a certificate from the Medical Officer approved by the Board regarding his age. However, this was not done and no certificate of Medical Officer regarding his age was obtained. The Petitioner accepted that his date of birth was 5.1.1932, when entry regarding the same was made in the year 1964 in his service book and the said entry was signed by him and also by the Executive Engineer. However, this was not done and no certificate of Medical Officer regarding his age was obtained. The Petitioner accepted that his date of birth was 5.1.1932, when entry regarding the same was made in the year 1964 in his service book and the said entry was signed by him and also by the Executive Engineer. Again he made no objection regarding his date of birth when the same entry was repeated in the year 1975 and was signed by him and the Executive Engineer. In these circumstances, the correction made in the service book by scoring out the date "5.1.1932" and writing "25.7.1936" on 18.8.1987 by the Executive Engineer is clearly illegal. Learned Counsel for Respondent No. 1 has failed to show any provision which authorised or empowered the Executive Engineer to make correction or alteration in the service book. In view of Sub-rule (2) of Rule 30 the correction made in the date of birth is not only illegal but is also prohibited. The altered entry is, therefore, non-est in the eyes of law. 28. It appears that no certificate or documentary proof was furnished by the Petitioner at the time of his initial appointment, so, he was got medically examined and on the basis of certificate issued by the Medical Officer, his date of birth was recorded in his service book. Even the seniority list mentions his date of birth as 4.4.1942. The entry regarding date of birth made in the service book was also circulated to him which was signed and verified by him from time to time. The entries in the service book were also audited and verified by the Audit Authorities periodically. The Petitioner did never raise any objection. On 11.6.1998 he was informed that as per his date of birth he will attain the age of superannuation on 30.4.2002. It was only then that he made representation dated 14.11.2000 that too after more than two years, which was thus highly belated. Any objection regarding alteration or correction in date of birth could be made within five years from the date of entry into Government service and not thereafter. It is not permissible for a Government servant to inflate the date of birth at the time of entry into service and deflate the same on reaching the age of superannuation. Any objection regarding alteration or correction in date of birth could be made within five years from the date of entry into Government service and not thereafter. It is not permissible for a Government servant to inflate the date of birth at the time of entry into service and deflate the same on reaching the age of superannuation. Entry in the service book initially made will have to be taken as correct unless it is shown that some unauthorised alteration was made therein. 29. In view of above conclusion, there is no merit in this petition which deserves to be dismissed. 30. The petition is dismissed. No order as to costs.