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2008 DIGILAW 1094 (ORI)

UNION OF INDIA (UOI) v. SRI PRAFULLA KUMAR SAHU

2008-12-03

I.MAHANTY, L.MOHAPATRA

body2008
JUDGMENT : Indrajit Mahanty, J. - The Union of India, the Petitioner herein, have sought to challenge the Order Dated 13.2.2008 passed by the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 473 of 2007, whereby, the Tribunal has been pleased to direct recording of the date of birth of the Opp. Party as 15.12.1949 instead of 15.12.1942 (as indicated in service records) and to reinstate the Opp. Party in the post of GDSMD, Jagamohan Branch Post Office till his age of superannuation. From the records it appears that the Opp. Party had made a representation/ appeal against the order of superannuation under Annexure-7 claiming his date of birth to be 15.12.1949 instead of 15.12.1942, which, after due consideration, was rejected by the authority concerned and being aggrieved by the said order of rejection, the Opp. Party filed 0.A. No. 473 of 2007 before the Central Administrative Tribunal, Cuttack Bench praying for a direction to reinstate him in service by treating his date of birth as 15.12.1949. 2. Mr. Mishra, Learned Asst. Solicitor General, appearing for the Union of India submitted that the Opp. Party-Shri Prafulla Kumar Sahu was employed as GDSMD at Jagamohan Branch Post Office since 5.4.1968. According to him, at the time of joining the post which was earlier known as EDDA and renamed as GDSMD, the Opp. Party submitted various documents indicating his date of birth as 15.12.1942. Mr. Mishra relied upon Annexure-2 which is the application dated 20.3.1968 submitted by the Opp. Party for the post wherein he has clearly mentioned that the applicant's age at the time of application was 25 years. He has further placed reliance on Annexure-3, copy of Transfer Certificate dated 1.7.1961 submitted by the Opp. Party at the time of applying for the Job which also indicates the date of birth of the Opp. Party as 15.12.1942. Accordingly it was submitted that termination of the services of the Opp. Party on superannuation on 14.12.2007 was effected on the Opp. Party attaining the age of 65 years. Mr. Mishra, Learned Asst. Solicitor General, apart from drawing the attention of the Court to the above documents referred by him, has also placed reliance on the Seniority List of GDS employees of the Division which was prepared taking into account the bio-data and service particulars which also indicates the date of birth of the Opp. Mr. Mishra, Learned Asst. Solicitor General, apart from drawing the attention of the Court to the above documents referred by him, has also placed reliance on the Seniority List of GDS employees of the Division which was prepared taking into account the bio-data and service particulars which also indicates the date of birth of the Opp. Party as 15.12.1942 and no objection was raised to the same by the Opp. Party during his employment. It was submitted that with an ulterior motive in order to remain in service beyond the date of his lawful retirement i.e. 14.12.2007, the Opp. Party had filed the Original Application before the Tribunal. Mr. Mishra, submitted that the Tribunal erred in law by accepting the contentions of the Opp. Party, without properly relying on the official documents on the basis of which his date of birth has been recorded and had passed the impugned order directing his reinstatement and recording his date of birth as 15.12.1949. He, therefore, asserts that the order and Judgment of the Tribunal may be quashed and set aside. Mr. Mishra, submitted that no reliance should have been placed on Annexure-A/1 submitted by the Opp. Party with his counter affidavit since the same is clearly an interpolation and a copy of the said document i.e. the order of original appointment order, maintained in official records has been annexed as Annexure-6 to the writ application. . According to him the document appended as Annexure-A/1 is an interpolation since the date 15.12.1942 has been circled and above it, the date 15. 12.1949 has been inserted. Mr. Mishra submitted that the interpolation made is clear to the naked eye and no reliance can be placed on Annexure-A/1. Mr. Mishra, further placed reliance on Rule-282 of the P & T F.H.B. Rules (Vol-I) and submitted that in the present case since the date of birth of the Opp. Party has been recorded in the official records as 15.12.1942 and has been deduced from the attestation Form provided by the Opp. Party at the time of appointment, the same can no longer be reopened or questioned. 3. Learned Counsel appearing for the Opp. Party, on the other hand, submitted that while it is a fact that Annexures-2,3,4 and 5 were duly signed by the Opp. Party at the time of appointment, the same can no longer be reopened or questioned. 3. Learned Counsel appearing for the Opp. Party, on the other hand, submitted that while it is a fact that Annexures-2,3,4 and 5 were duly signed by the Opp. Party, yet Learned Counsel submitted that his client is unable to recollect as to whether he had himself filled up various columns of attestation Forms under Annexures- 4 and 5. Apart from this, he submitted that in the letter of appointment under Annexure-6, while it is a fact that the date of birth was originally recorded as 15.12.1942, yet, Opp. Party had made a representation to the Inspector of Post Offices, Aska who was the appointing authority, in the year 1973. Such representation was produced by the Petitioner before the Tribunal and has been appended as Annexure-8 to the writ application. He submitted that whereas Annexure-8 is the copy of the representation made by the Opp. Party, the said document carries an endorsement of the Inspector of Post Offices at its left side which indicates that the Inspector had verified the date of birth of the Opp. Party with the original service records and noted that the date of birth of the Opp. Party as 15.12.1942 instead of 15.12.1949. Learned Counsel for the Opposite Party further submitted that in the inquiry conducted by the Inspector of P.Os to the question of date of birth of the Opp. Party, the Inspector himself has made the endorsement in . Annexure-A/1 i.e. the original order of appointment and in place of 15.12.1942, the date 15.12.1949 was duly endorsed by him. He, therefore, submitted that the date of birth in the appointment letter is not an interpolation by the Opp. Party, but an endorsement made by the Inspector of Post Offices after an inquiry was conducted by him pursuant to the representation made by the Opp. Party under Annexure-8. Learned Counsel for the Opposite Party submitted that in terms of Clause-3 of the Post and Telegraphs Manual (Vol-IV), in the case of extra-departmental agents, in respect of whom the usual enquiries regarding their character and antecedents have not been dispensed with, the enquiry papers may be kept with their security bonds with necessary remarks in the register of security bonds. In this connection, Learned Counsel for the Opp. In this connection, Learned Counsel for the Opp. Party submitted that it was incumbent upon the postal authority to carry out an inquiry and on their failure to carry out such an inquiry at the time of appointment, no objection can be raised by the Petitioners to the inquiry carried out by the Inspector of Post Offices basing on the representation made by the Opp. Party. He, therefore, submitted that the order of the Tribunal may be sustained and the writ application may, accordingly, be dismissed. 4. On consideration of the submissions advanced by the Learned Counsel for the parties, we deem it appropriate to quote Rule-281 of the P & T, F.H.B. (Vol-I) which reads as follows: 281. Every person newly appointed to a service or a post under Government should, at the time of the appointment, declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date shall be given. The actual date or the assumed date determined (vide Rule 282) should be recorded in the history of services, service book, or any other record that may be kept in respect of the Government servant; service under Government and, once recorded, it cannot be altered, except in the case of a clerical error, without the previous orders of a Department of the Central Government or an Administrator. From the aforesaid provision, it would be clear that it is incumbent upon a person appointed to service or post under the Government to declare the date of his birth at the time of appointment along with confirmatory documentary evidence. In the present case, the Petitioners have recorded the date of birth of the Opposite Party as 15.12.1942 based on such declaration made by the Opposite Party under Annexures-2, 3, 4 and 5. Swamy's Compilation further contains Govt. of India's decision regarding the conditions for changing the date of birth which is quoted hereinbelow: Conditions for changing date of birth. In the present case, the Petitioners have recorded the date of birth of the Opposite Party as 15.12.1942 based on such declaration made by the Opposite Party under Annexures-2, 3, 4 and 5. Swamy's Compilation further contains Govt. of India's decision regarding the conditions for changing the date of birth which is quoted hereinbelow: Conditions for changing date of birth. -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 the 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. 5. In the present case admittedly, the alleged alteration of the date of birth of the Opposite Party has been made by the Inspector of Post Offices under Annexure-A/1 purportedly basing on the School Leaving Certificate dated 4.7.1961 under Annexure-A/2. From this it is clear that alteration of the date of birth as claimed has been done without the necessary sanction of the Ministry or Department of the Central Government. From this it is clear that alteration of the date of birth as claimed has been done without the necessary sanction of the Ministry or Department of the Central Government. In terms of the aforesaid Government of India's decision, the date of birth declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except in terms as specified in the said decision and without sanction of the Ministry. In the present case at hand, it is a fact that neither the Department nor the Ministry had ever accorded approval to the alleged change of date of birth made in the order of appointment under Annexure-A/1 and therefore, such alleged change can have no legal effect. 6. Apart from this, we find that the Opp. Party has relied upon the Transfer Certificate under Annexure-A/2 dated 4.7.1961 purportedly issued by one Ganeswar Udgata, Head Pandit and Secretary of a Sanskrit Tol. It appears from Annexure-3 that the Opp. Party himself has provided his employer with a copy of the Transfer Certificate dated 1.7.1961 purportedly signed by the self-same person, namely, Ganeswar Udgata, wherein it has been noted that the date of birth of the Opp. Party was 15.12.1942. It is admitted by the Learned Counsel for the Opp. Party that Annexure-3 had been provided by the Opp. Party to the employer at the time of appointment, but he claimed that the date of birth mentioned therein was an error which was corrected by issuing Annexure-A/2. We are unable to accept such an explanation especially when the date of birth 15.12.1942' is not only found in Annexure-3, but also in Annexure-4 which is the attestation. Form duly signed by the Opp. Party as well as in Annexure-5 which is the descriptive particulars once again signed by the Opp. Party. 7. In view of the aforesaid facts, the writ application is allowed and the impugned order of the CAT dated 13.2.2008 passed in O.A. No. 473 of 2007 is quashed. 8. We further declare that the date of birth of the Opp. Party is 5.12.1942 and hence, his order of termination on his superannuation on 14.12.2007 is valid in law. L. Mohapatra, J. I agree Final Result : Allowed