Research › Search › Judgment

Himachal Pradesh High Court · body

2009 DIGILAW 1064 (HP)

CHUNI LAL SHARMA v. UNION OF INDIA

2009-11-17

DEEPAK GUPTA, V.K.AHUJA

body2009
JUDGMENT Per V.K. Ahuja, J.-This judgment shall dispose of the civil writ petition filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the orders passed by the learned Central Administrative Tribunal on 18.11.1999. 2. Briefly stated the facts of the case are that the petitioner is serving the respondent Department as Assistant Audit Officer. He joined the service of the respondent as Lower Division Clerk on 26.5.1971. He was promoted in the year 1975, then in 1980 and thereafter in 1985. He alleged that in the year 1991, he learnt from an old family friend that his date of birth was February 5, 1953 instead of February 5, 1951 and that his date of birth has been wrongly recorded in his Matriculation certificate. The petitioner applied to the respondents for correction of the entry alongwith copy of the school certificate etc. The respondent informed the petitioner that the date of birth cannot be changed in view of the Government of India’s decision dated 28.11.1980 as the said application has been made beyond five years from the date of entry of the petitioner into the government service. However, the petitioner was asked to take up the matter with the concerned University and get the date of birth rectified as recorded in Matriculation certificate. The petitioner pursued the matter with the Punjab University and his date of birth entry was corrected as February 5, 1953 in the Matriculation certificate. 3. Thereafter, the petitioner filed a representation to the respondents on August 18, 1998. He also made further representations on different dates from 28th July, 1999 to 30th September, 1999, but no decision was taken by the competent authority. Thereafter, the petitioner filed an Original Application before the learned Central Administrative Tribunal and the learned Tribunal dismissed the said application filed by the petitioner on 18.11.1999. Being aggrieved by the said order passed by the learned Tribunal, the petitioner has filed the present petition. 4. A notice of the petition was issued to the respondents. We have heard the learned counsel for the parties and have gone through the record. 5. The submissions made by the learned counsel for the petitioner were that the petitioner had been making representations since 1991 for changing his date of birth entry. 4. A notice of the petition was issued to the respondents. We have heard the learned counsel for the parties and have gone through the record. 5. The submissions made by the learned counsel for the petitioner were that the petitioner had been making representations since 1991 for changing his date of birth entry. It was further submitted that on the advice or directions or the respondents, the petitioner had applied to the authorities for correction of the entry in Matriculation certificate and, therefore, it gave a fresh cause of action to the petitioner to get the relief sought from the respondents. It was, therefore, submitted that once the petitioner had applied for correction of entry of his date of birth and had been making representations since long and the fact that the entry in the Matriculation certificate was corrected by the concerned Department, the entry of birth recorded in the service record of the petitioner was liable to be corrected accordingly. 6. To substantiate her submissions that the entry can be corrected, the learned counsel for the petitioner had relied upon the decision in Bibekananda Barua versus Regional Director Food Corpn. and others, 2000(1) SLR 783. A perusal of the same shows that the petitioner had applied for correction of the entry relying upon the contemporaneous documents, namely, letter of Deputy Commissioner of a District of Bangladesh, the certificate issued by the school where the petitioner had studied as well as by the Board of Secondary Education of West Bengal. A plea was also taken in regard to late filing of the application, but it was observed that since the petitioner had not applied for correction of birth entry at the fag end of the service and the fact that the petitioner had been pursuing his case for the last 10 years, it was held that the application for correction was liable to be allowed and, therefore, the writ petition was allowed accordingly. 7. On the other hand, the learned Assistant Solicitor General of India had submitted that the application for correction having been filed at a belated stage cannot be allowed and the said entry cannot be allowed to be corrected at the fag end of the career of the petitioner. 7. On the other hand, the learned Assistant Solicitor General of India had submitted that the application for correction having been filed at a belated stage cannot be allowed and the said entry cannot be allowed to be corrected at the fag end of the career of the petitioner. In support of his submission, the learned Assistant Solicitor General of India placed reliance upon the directions issued by the Central Government that no application for correction can be made after five years of joining of the service. 8. To substantiate his plea, the learned Assistant Solicitor General of India had relied upon the decision in State of Gujarat and others versus Vali Mohmed Dosabhai Sindhi, JT 2006 (6) SC 468. The facts of the case show that the respondent was appointed as a Constable in the year 1947 and in February 1981, he was informed about his impending retirement due in November, 1981. Thereupon, he sought correction of his date of birth producing school leaving certificate etc. It was held that the respondent was not entitled to any relief despite production of evidence subsequently. 9. Another decision relied upon was in Narinder Kumar versus Union of India and others, 2007 (1) Shim. LC 274. The facts of the case are that the petitioner joined service on 12.2.1976. He was due to retire on 31.12.2005. Somewhere in the year 2004 or 2005, he moved an application for correction of his date birth. In this case also, reliance was placed upon the decision in Vali Mohmed Dosabhai Sindhi’s case (supra), wherein it was observed that there is a tendency to file application for correction after waiting for years. In para 8, it was clearly observed that such request for correction should be made within 5 years of joining of service and the request made at the fag end of the career, a few years before retirement, can never be said to be the request made within reasonable time under any circumstances. Accordingly, the petition was dismissed. 10. In the present case, the petitioner made a representation on 18.2.1991, which was rejected on 17.6.1991. Accordingly, the petition was dismissed. 10. In the present case, the petitioner made a representation on 18.2.1991, which was rejected on 17.6.1991. He was only advised that he may apply for correction of the entry of the Matriculation certificate but neither it was a direction to him nor it gave any undertaking to hold that once a correction is ordered, the respondents shall be bound to make correction in the birth entry in the service record maintained by them. The observations made were advisory in nature that the petitioner may apply for correction and once the correction is ordered, still it was for the Department to consider as to whether the said correction is liable to be made in the record maintained by them or not as per the rules prevalent at that time. It is, therefore, clear that no benefit can be taken of the fact by the petitioner that he was permitted to apply for correction of the birth entry. 11. Apart from the above, it is clear that the petitioner joined the service on May 26, 1971 and for the first time, he made representation for correction after 20 years i.e. in the year 1991. His request was declined and he was asked to apply for correction in the Matriculation certificate, which was later on done. Thereafter, the petitioner filed various representations right from July, 1999 to September, 1999, as per Annexures P-6 to P-9. Thereafter, in the year 1999, the petitioner filed an Original Application before the learned Central Administrative Tribunal. The said Original Application was dismissed on 18.11.1999. It is, therefore, clear that he approached the respondents for correction for the first time after 20 years of his joining the service, then pursued with representations for number of years and though the correction was ordered in the year 1998 in the Matriculation certificate, he applied for correction in the record and had been making representations for 8 years, but did not file any Original Application earlier. A perusal of the order passed by the learned Central Administrative Tribunal shows that the learned Tribunal had concluded that such a request for correction cannot be considered after a period of 5 years of joining service and those findings are correct in view of the law referred to above. 12. A perusal of the order passed by the learned Central Administrative Tribunal shows that the learned Tribunal had concluded that such a request for correction cannot be considered after a period of 5 years of joining service and those findings are correct in view of the law referred to above. 12. Apart from the above, during the course of arguments, it was also pointed out that in case the date of birth entry is corrected and the date now given is considered, the petitioner was not even of the age of 18 years when he applied for the post of LDC, which fact was not disputed by the petitioner during arguments. It was rightly submitted by the learned Assistant Solicitor General that the petitioner cannot have one date for getting entry into service and once on that date he claims eligibility to be appointed as LDC, now he cannot claim that the said date was incorrect and after serving the Department for some years, his date of birth should be corrected by two years. Thus, the petitioner cannot have two dates, one for the eligibility and other for superannuation and this is also the reason to hold that the petitioner cannot seek the discretionary relief of writ jurisdiction to get the date of birth entry corrected in his favour, which cannot be allowed to be corrected after five years of joining the service, as per the discussion made hereinabove. 13. In view of the above discussion, we hold that there is no merit in the petition filed by the petitioner and the order passed by the learned Central Administrative Tribunal does not suffer from any infirmity calling for an interference by this Court and as such the writ petition is dismissed. However, the parties are left to bear their own costs.