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2016 DIGILAW 260 (JK)

Union of India v. Mohd. Ramzan Sheikh

2016-05-11

ALI MOHD.MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This writ petition is filed by the petitioners, Union of India and its officers, challenging the order of the Central Administrative Tribunal, Chandigarh Bench made in OA No. 061/00032/2015, dated 02.09.2015 wherein the Tribunal has allowed the application of the respondent seeking quashing of impugned order Bearing No. C-18013/3/7(248) 2014-LC/250, dated 30.04.2015, rejecting the request of the respondent to correct his date of birth, entered in his service book from 31.05.1955 to that of 10.04.1957 with a direction to the petitioners to treat the respondent's date of birth as 10.04.1957 and re-instate him to the position he has held before his enforced retirement w.e.f. 29/31/05/2015 and to treat the period from 29/31.05.2015 till the date of his actual joining as duty for all intents and purposes and his salary be also released to him. The respondent was also held entitled to cost of Rs. 20,000/- to be paid by the petitioners within three months from the date of order. The case of the respondent before the Tribunal was that in his school leaving certificate, his date of birth is entered as 10.04.1957. He was initially appointed as Assistant Instructor on consolidated salary of Rs. 400/- per month by order dated 07.05.1979 along with several other persons. At the time of his appointment in the year 1990, the department directed the respondent to submit his testimonials before them for making entries in his service book and according to the petitioner he has submitted his Under Metric Certificate dated 09.05.1979 along, with marks card, dated 29.07.1976. As per the said certificate his date of birth has been shown as 10.04.1957. It was also the case of the respondent that after serving in the department for about 11 years his services were considered for temporary appointment against the newly created posts in the year 1990 by order dated 24.04.1990 and his services were regularized against the said post retrospectively from 03.10.1985. According to the respondent, in the year 2009 the seniority list was prepared of all the employees and in the said seniority list his date of birth was not rightly recorded and instead of 10.04.1957 it was recorded as 31.05.1955. According to the respondent, in the year 2009 the seniority list was prepared of all the employees and in the said seniority list his date of birth was not rightly recorded and instead of 10.04.1957 it was recorded as 31.05.1955. The contention of the respondent is that even while submitting the certificate of fitness the respondent was shown as 33 years of age on 29.06.1990 which was counter signed by the Medical officer and Head Master Government Secondary School, Qullan Kangan and said certificate was received by the officials of the department. It is the further case of the respondent that he made verbal requests to correct his date of birth and filed a formal representation on 31.12.2009. No action being taken, further application was submitted on 24.09.2012 and the same having not been considered, the respondent filed OA No. 062/00002/2014 before the Tribunal which was disposed of on 24.03.2015 with a direction to consider the documents relating to the school attendance of the respondent wherein the date of birth is indicated as 10.04.1957 with a direction to verify the same by conducting enquiry and complete the same within a period of one month and take a decision latest by 30.04.2015 and the respondent may not be retired from service before decision is taken regarding his request for correction of date of birth. 2. Thereafter the request of the petitioner was considered and rejected on 30.04.2015, stating that as per the existing Government Rules/Instructions as contained in Chapter 58 under Sub-head "Date of Birth and its subsequent alteration" request for seeking correction of date of birth is maintainable within a period of five years of the entry in Government service" and as the request of the respondent is belated that too at the fag end of his service career, the same cannot be acceded to. The said order was challenged by the respondent and the Tribunal allowed the application as if positive direction was issued in the earlier application to correct the date of birth of the respondent. 3. The said order was challenged by the respondent and the Tribunal allowed the application as if positive direction was issued in the earlier application to correct the date of birth of the respondent. 3. The said order is challenged in this writ petition by the petitioners-department contending that the respondent having been appointed as Assistant Instructor on consolidated basis in the year 1979 and his service having been regularized by order dated 24.04.1990 retrospectively from 03.10.1985, the service books of all the concerned employees including the respondent was required to be prepared from the date of appointment in service. The respondent was asked to furnish the bio-data including documentary evidence for determining his age/date of birth to be recorded in the service book. The respondent submitted the proof of age in the shape of an affidavit on non-judicial paper, duly signed by him, showing his date of birth as 31.05.1955, attested by judicial signatory dated 07.04.1992. The date of birth so submitted by the respondent was accordingly recorded in his service book mentioning his date of birth as 31.05.1955. Copy of the affidavit filed by the respondent is also filed along with the writ petition. The date of birth entry made in the service book of the respondent on 07.04.1992 is also filed to prove the contention of the petitioner which is found in Annexure C. 4. It is the contention of the petitioners that the said order, namely, PART II Office Order dated 07.04.1992 was also delivered to the respondent and he continued to sign his service book right from updating his service book from 1990 onwards year after year and he never objected about the alleged wrong date of birth entry and only after 24 years of his service he made a representation in the year 2009 claiming that his actual date of birth is 10.04.1957 and not 31.05.1955. Since the Rules contemplates submission of application within five years for correction of date of birth, his request was considered in pursuance of the directions of the tribunal and rejected. 5. Since the Rules contemplates submission of application within five years for correction of date of birth, his request was considered in pursuance of the directions of the tribunal and rejected. 5. The learned counsel appearing for the petitioners argued that even if the entry made in the school record is genuine, the date of birth entry made in the service book being based on the affidavit filed by the respondent and the same having been allowed to stand for over 24 years and the respondent having not submitted any application within five years as required under rules, his representation was rightly rejected by the department and he has now retired from service on counting his date of birth with effect from 31.05.1955. Learned counsel relied on the judgments of Hon'ble the Supreme Court reported in AIR 1993 SC 1367 (Union of India v. Harnam Singh) and AIR 1993 SC 2647 (Secretary and Commissioner, Home Department v. R. Kirubakaran) and contended that application seeking correction of date of birth shall be submitted within a period of five years and belated applications are to be rejected. The learned counsel further argued that the judgment of Hon'ble the Supreme Court reported in [2014] 4 Supreme Court Reports 887 (M/S Bharat Coking Coal Ltd. v. Chhota, Birsa Uranw) is distinguishable on facts as the Hon'ble Supreme Court found that government servant in that case had submitted representation for correction of his date of birth within five years and there was inordinate delay on the part of the officials to consider the said representation and in this case the respondent has submitted application for correction of his date of birth, even according to his own claim, in the year 2009 i.e. after 24 years of his entry into service and even if the order of regularization is taken as relevant date, after 19 years i.e. at the fag end of his service. 6. The learned counsel appearing for the respondent supported the order of the Tribunal and contended that in the earlier round of litigation the respondent's claim having been directed to be considered taking note of his school certificate and the said order having become final, the officials/department is not entitled to go into the limitation/time limit in which the application for correction of date of birth is not filed. According to the learned counsel the judgment of Hon'ble the Supreme Court in Bharat Coking Coal case supra is squarely applicable to the facts of this case and the order of the Tribunal is bound to be upheld. 7. We have considered the rival submissions. 8. It is not in dispute that respondent's services were regularized along with others on 24.04.1990 with retrospective effect from 03.10.1985. In the regularization order dated 24.04.1990 the name of the respondent is found at Serial No. 96 and his date of birth/age is mentioned as 34 years. The affidavit filed by the respondent claiming his date of birth is also found in the documents filed. In the service book, admittedly the respondent's date of birth is entered as 31.05.1955. FR S6 (Note 6) of the fundamental rules and supplementary rules is the relevant provision under which government servant can claim correction of date of birth which states as follows:- "(a). A request in this regard is made within five years of his entry into Govt. service. (b). It is clearly established that a genuine bona fide mistake has occurred. (c). The date of birth so altered would not make him ineligible to appear in any School, 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." 9. On perusal of the above Rule, it is evident that correction of date of birth is service register once entered can be entertained only within five years of entry into service. Here in this case the services of the respondent were regularized on 24.04.1990 with retrospective effect from 03.10.1985. Thus in any event the application for change of date of birth is bound to be submitted by the respondent within five years from the date of regularization order i.e. 24.04.1990 or at least from the date of preparation of the service book which the respondent has signed. 10. The entertaining of belated applications seeking correction of date of birth that too at the fag end of service of government servant cannot be entertained and the said issue is well settled by Hon'ble the Supreme Court. In the decision reported in, 1994 SCC Suppl. 10. The entertaining of belated applications seeking correction of date of birth that too at the fag end of service of government servant cannot be entertained and the said issue is well settled by Hon'ble the Supreme Court. In the decision reported in, 1994 SCC Suppl. (1) 155 (Secretary and Commissioner, Home Department v. Kirubakaran), Hon'ble the Supreme Court held as under:- "7. An application for correction of the date of birth should not be dealt with by the tribunal 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 their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important 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, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, 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 order. Before any such direction is issued, 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 order. 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 filed within the time, which can be held to be reasonable....." (Emphasis added) In the decision reported in (1994) 6 SCC 302 (State of Tamil Nadu v. T.V. Venugopalan), in paragraph 7 it is held thus:- "7.......This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs. 3000.'' In the decision reported in (2003) 6 SCC 483 (State of U.P. v. Gulaichi), in paragraphs 8 and 9, Hon'ble the Supreme Court held as follows: "8. The appeal is accordingly allowed with costs quantified as Rs. 3000.'' In the decision reported in (2003) 6 SCC 483 (State of U.P. v. Gulaichi), in paragraphs 8 and 9, Hon'ble the Supreme Court held as follows: "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. 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. 9. 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.. 9. 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......" (Emphasis added) The same approach was followed by Hon'ble the Supreme Court in the decisions reported in (1994) 2 SCC 491 (State of Orissa v. Brahamarbar Senapathi), (1996) 7 SCC 421 (Union of India v. Ram Suia Sharma), (2000) 8 SCC 696 (G.M. Bharat Coking Coal Ltd., v. Shib Kumar Dushad), (2004) 3 SCC 394 (State of Punjab v. S.C. Chadha), (2005) 6 SCC 49 (Shiv Narain Upadhyay v. State of Gujarat and Ors.), (2005) 11 SCC 465 (U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri), (2005) 12 SCC 201 (Coal India Ltd. v. Ardhendu Bikas Bhattacharjee), (2006) 6 SCC 537 (State of Gujarat v. Vali Mohd. Dosabhai Sindhi). In the decision reported as (2010) 14 SCC 423 State of Maharashtra v. Goraknath Sitaram Kamble) it is held that if rules restricts entertaining the application for alteration of date of birth, no application after the said date be entertained. The liberal interpretation give by the High Court of Bombay was held unsustainable. In paragraph 9 it is held thus:- "9. The High Court, in the impugned judgment, has failed to notice the settled legal position which is crystallized by a series of judgments of this Court. All the judgments have consistently taken the view that change in the date of birth cannot be permitted at the fag end of the service career. In paragraph 9 it is held thus:- "9. The High Court, in the impugned judgment, has failed to notice the settled legal position which is crystallized by a series of judgments of this Court. All the judgments have consistently taken the view that change in the date of birth cannot be permitted at the fag end of the service career. In the instant case, according to the Notification dated 24th December, 2008, it is made clear that no alteration of the entry should be allowed after five years." Applying the said judgments to the facts of this case and in the light of the rule position, which is binding on the respondent who is governed under the said rules, we are of the view that the Tribunal has committed an error in ordering correction of date of birth of the respondent. The application for such change having been filed in the year 2009, which is in violation of the statutory rule, the order of the Tribunal is liable to be set aside and accordingly the writ petition is allowed and the order of the Tribunal is set aside. No costs.