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2009 DIGILAW 927 (GAU)

Ananda Saikia v. Union of India

2009-12-22

ANIMA HAZARIKA

body2009
JUDGMENT Anima Hazarika, J. 1. Heard Mr. P.J. Saikia, learned Counsel, appearing for the petitioner. Also heard Mr. D Choudhury, learned Central Government counsel appearing for the respondents. 2. The petitioner herein calls in question the legality of the Office Memorandum dated 30.1.2008, 12.3.2008 and 13.8.2008 respectively whereby and whereunder the official respondents rejected the claim of the petitioner to alter his date of birth in the service record and consequent thereto the petitioner was asked to submit pension paper immediately. The instant writ petition has been filed invoking power under Article 226 of the Constitution of India for setting aside the above orders and further for a direction to the respondent authorities to correct the date of birth of the petitioner in the service record as on 1.03.1950. 3. The factual controversy lies within a very narrow compass, which is summarized herein below: The petitioner was appointed as Fireman by the Assistant Director, Aviation Research Centre, Government of India vide memorandum No. 103(DDM)/68-69 dated 14.4.1969 in the office at Doom Dooma and accordingly he joined in the service. At the time of appointment he was asked to submit all the certificates and documents which he had duly submitted and accordingly his date of birth was recorded as 17 years 10 months as on 31.12.1967 meaning thereby that he was born on 1.3.1950, whereas his date of birth was recorded on 1.3.1949 in his service book and during the year 2008 the respondents have initiated for processing the pension papers showing his date of superannuation as on 28.2.2009, though, he is to retire on. 28.2.2010, if the date of birth is taken into consideration as on 1.3.1950 and, hence, challenged the orders as indicated hereinabove. 4. 28.2.2010, if the date of birth is taken into consideration as on 1.3.1950 and, hence, challenged the orders as indicated hereinabove. 4. The facts pleaded in the writ petition is that the petitioner was born on 1.3.1950, which is reflected in the School Leaving Certificate dated 16.2.1968 issued by the Headquarter, Bhadoi High School, Lakhimpur District, Assam wherein it was specifically demonstrated that the petitioner had left School on 31.12.1967 and his age on that day was 17 years 10 months which was submitted at the time of entry in the service including the attestation Form (C) on which basis the petitioner is to go on superannuation on 28.2.2010, whereas the respondent authority has recorded his date of birth as on 1.3.1949, which was apparently wrong and on the wrong entry of his date of birth he would superannuate on 28.2.2009. Therefore, coming to know about the processing of his pension papers in the month of January 2008 itself, the petitioner had submitted representation before the Deputy Director(A), ARC, Doom Dooma whereby he had requested to correct his date of birth as 1.3.1950, which was turned down by the authority vide Office Memorandum dated 30.1.2008 holding that his request of change of date of birth at the belated stage cannot be acceded to, more so, when there was no representation against the seniority list published earlier where his date of birth was shown. 5. On receipt of the office Memorandum dated 30.1.2008, the petitioner once again represented on 3.3.2008 to the respondent authorities, contending, inter alla, that the seniority list as referred in the Office Memorandum dated 30.1.2008 was not shown to him and he was not aware of the seniority list. In the said representation, it was further contended that the petitioner's request was only for correction of date of birth in the service book given at the time of his joining in the service and for the same requested the authority to verify the records and correct the date accordingly, which was not acceded by the respondent authorities holding vide Memorandum dated 12.3.2008 that the decision contained in the Memorandum dated 30.1.2008 stands. 6. 6. Since the respondent authorities did not alter the date of birth as sought for, the petitioner submitted another representation dated 4.4.2008 before the respondent No. 2 reiterating the said facts as indicated above contending that the date of birth reflected in the attestation form as well as in the School Leaving Certificate would show that his date of birth was 1.3.1950 whereas his date of birth in the service record was wrongly entered while computing the age as per the School Certificate due to inadvertence and requested to alter the date of birth as 1.3.1950 instead of 1.3.1949. 7. On receipt of the aforesaid representation dated 4.4.2008, the respondent No. 5 has asked for his original certificate for their consideration which was supplied on 21.5.2008 and by office Memorandum dated 13.8.2008, the petitioner was informed that his date of birth was recorded as 1.3.1949 in the service book as per School Leaving Certificate dated 16.2.1968 which has also been gone through by the competent authority with a direction not to make any further representation in this regard which has also been challenged in the instant writ petition. 8. An affidavit-in-opposition has been filed on behalf of the respondents controverting the averments made in the writ petition contending, inter alla, the following: (a) The alteration/correction of date of birth has been sought for at the fag end of the service career of the petitioner and he had tried to show his date of birth by way of calculation on the basis of the High School Leaving Certificate dated 16.2.1968 issued by the Headmaster Bhadoi H.E. School, which he has submitted with his application dated 14.1.2008 for correction of age but he was silent as to other certificates which he produced at the inception and which bears the date of birth as 1.3.1949. But the certificate which bears the same date, i.e., 16.2.1968 with the application dated 14.1.2008 differs from the other certificates pasted in the service book and the new certificate produced at the fag end, at the stage of a few days ahead of his retirement cannot be entertained under FR 56. (b) The seniority list published by the competent authority wherein the age of the petitioner was reflected has not been disputed and the petitioner had all opportunity for correcting his age in the service record which are shown to officers every year as per Supplementary Rule 202. (b) The seniority list published by the competent authority wherein the age of the petitioner was reflected has not been disputed and the petitioner had all opportunity for correcting his age in the service record which are shown to officers every year as per Supplementary Rule 202. Further on the basis of the service records, the Cadre service seniority list is prepared in a routine manner, and the petitioner's seniority was reflected on the basis of the said date of birth i.e., 1.3.1949 but he never disputed the same. Such seniority list of all the Cadre Officials was circulated vide Memorandum dated 17.8.2007, too, but the petitioner never raised any dispute about his age and, hence, the claim for correction of his date of birth in the service book at the fag end of his career cannot be entertained. 9. A Government servant, after entry into service acquires the right to continue in service till the age of retirement, unless the services are dispensed with on some other grounds. 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. However, he is not precluded from making a request later on for correcting his age. Note 6 to Fundamental Rule (FR for short) 56(m) provides for requests to be made for correction of date of birth Note 6 to FR 56(m) being relevant in the case in hand is quoted hereunder: Note - 6. 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. 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. 10. A bare reading of the above provision makes it clear that the request for correction of date of birth is required to be made by the Government servant within five years of his entry into Government service and his date of birth may be corrected if it is established that a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service. In Union of India v. Harnam Singh (1993) 2 SCC 162 at paragraph 12, the Apex Court held as, thus: The approach of the Tribunal does not commend to us as it tends 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 and 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. 11. In the instant case the petitioner did not take any step nor made any representation for correction of date of birth till 1984. 12. The petitioner herein has entered into the service on 14.4.1969. The date of birth in his service book was recorded as 1.3.1949 and even the date of retirement was also fixed as 28.2.2009. The petitioner has served the Department for two months less than forty years. Within almost about forty years the petitioner for the first time sought for correction of the date of birth in his service record on the 39th year, which cannot be entertained at a belated stage and the request so made has been rightly denied by the respondent authorities. 13. It would be appropriate to refer the decisions rendered by the Apex Court relating to change of date of birth in the service record wherein the court did not encourage to alter/change the date of birth in the service record at a belated stage. The decisions are: (i) State of Assam and Anr. v. Daksha Prasad Deka AIR 1971 SC 173 . (ii) Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v. Rangadhar Mallik AIR 1993 SCW 559 . (iii) Secretary and Commissioner Home Department and Ors. v. R. Kirubakaran AIR 1993 SCW 3333 . (iv) State of Tamil Nadu v. T.V. Venugopalan AIR 1994 SCW 3947. (v) State of Orissa and Ors. v. Ramanath Patnaik AIR 1997 SCW 2370 and (vi) State of U.P and Ors. v. Smt. Gulaichi AIR 2003 SCW 3775. 14. From the discussion made above and the decisions rendered by the Apex Court the inevitable conclusion is that Office Memorandum dated 30.1.2008, 12.3.2008 and 13.8.2008 do not require to be interfered with in exercise of power under Article 226 of the Constitution of India. 15. v. Smt. Gulaichi AIR 2003 SCW 3775. 14. From the discussion made above and the decisions rendered by the Apex Court the inevitable conclusion is that Office Memorandum dated 30.1.2008, 12.3.2008 and 13.8.2008 do not require to be interfered with in exercise of power under Article 226 of the Constitution of India. 15. Accordingly, the writ petition being devoid of merit, the same is dismissed. There shall, however, be no order as to costs. 16. At this stage, the learned Counsel appearing for the petitioner has prayed for issuing a direction to the authority for releasing the pension as well as the retirement benefit to the petitioner at an early date. There is substance in the prayer so made. The respondent authorities are hereby directed to take necessary steps for releasing pension and other retirement benefit to the petitioner at the earliest, preferably within four months from today. Petition dismissed.