Union of India & Ors. v. Mukul Chandra Bhattacharyya S/o. Late Jankinath Bhattacharyya
2016-07-28
HRISHIKESH ROY, L.S.JAMIR
body2016
DigiLaw.ai
1. Heard Mr. HK Das, the learned counsel appearing for the writ petitioner. The respondent who was the applicant before the Central Administrative Tribunal (CAT), is represented by the learned Advocate Mr. I. Hussain. 2. The respondent joined service in the Railways initially as a casual lineman on 16.6.1982 but after he qualified in the trade test, he was absorbed as a Lineman Gr.III, through the order dated 12.12.1988 (page 27). The issue here relates to the date of birth of the respondent and he contends that his correct date of birth is 19.2.1956 but in the Service Book, maintained by the Railways, the birth date was wrongly recorded as 21.2.1955. 3. The first representation for correction of the date of birth was made by the respondent on 5.12.2012 but this was rejected on 12.12.2012, on the ground that such belated application for alteration of date of birth can’t be considered. Two years later, just on the eve of superannuation, the respondent re-applied on 26.2.2014 for correction of his birth date but this representation too was rejected by the Railways on 10.4.2014 by reiteration of the earlier decision. 4. On the basis of the date of birth recorded in the service book, the respondent was scheduled to superannuate on 28.2.2015 but a few months earlier, the employee approached the CAT, Guwahati praying for correction of his date of birth as 19.2.1956 from 21.2.1955. The learned Tribunal through the interim order dated 25.8.2014, stayed the retirement of the applicant. Eventually through the final judgment rendered on 27.2.2015 (Annexure-p/14), direction was issued to the employer to correct the birth date of the applicant on the basis of the HSLC certificate and to allow him to continue in service as per the corrected date. 5. Assailing the legality of the impugned judgment of the Tribunal, Mr. HK Das, learned counsel submits that in the service book of the respondent, his date of birth was recorded as 21.2.1955 and when the employee signed the service book on 12.11.1986, he never protested that it was an incorrect entry. The Railway lawyer refers to the provisional seniority list(s) circulated on 1.1.2006 and on 1.4.2012 respectively to project that 21.2.1955 was also reflected as the date of birth in the circulated lists but neither in 2006 or in 2012, the respondent objected to that entry, recorded in the seniority lists. 6.
The Railway lawyer refers to the provisional seniority list(s) circulated on 1.1.2006 and on 1.4.2012 respectively to project that 21.2.1955 was also reflected as the date of birth in the circulated lists but neither in 2006 or in 2012, the respondent objected to that entry, recorded in the seniority lists. 6. The writ petitioners reads the Railways’ circular dated 19.11.1990, to refer to the prescribed procedure for alteration of the date of birth and Mr. Das submits that application for correction can’t be entertained after completion of probation or three years of service - whichever is earlier. The respondent was absorbed as a regular Lineman Gr.III on 12.12.1988 and accordingly it is submitted that when the incumbent remained silent for about 24 years, the correction of his date of birth on a much belated representation of 5.12.2012, should not have been ordered by the learned Tribunal. 7. Mr. I. Hussain, the learned counsel for the respondent however submits that when the entries in the service book was tendered to the employee for verification and endorsement, the respondent failed to notice the incorrect entry and it is submitted that the respondent innocently appended his signature to the service book on 12.11.1986, being oblivious of the wrong date of birth. 8. The respondent further submits that HSLC is an essential qualification for being appointed as Lineman Gr.III and it is clearly reflected in the service book itself that the HSLC certificate was available with the employer and therefore it is argued that the correction sought by the respondent is clearly based on the age specified in the HSLC certificate and normally the age details should be recorded as per the HSLC certificate of the employee. 9. The Railways counsel had resisted the application before the CAT by projecting that the respondent failed to apply for rectification in due time and approached the Tribunal just on the eve of retirement. But this substantial objection was not at all taken into account by the Tribunal, while giving relief to the respondent. The focus of the Tribunal was that the respondent applied for correction on the basis of the HSLC certificate and since matriculation is an essential qualification for the post of Lineman Gr.III, the date of birth was mistakenly entered by the employer and on that basis, correction of the entry was ordered.
The focus of the Tribunal was that the respondent applied for correction on the basis of the HSLC certificate and since matriculation is an essential qualification for the post of Lineman Gr.III, the date of birth was mistakenly entered by the employer and on that basis, correction of the entry was ordered. It was also observed that the entries in the service book were not by the employee himself but he only appended his signature to the service book on 12.11.1986. 10. The respondent was made aware of the date of birth recorded in the service book as far back as in the year 1986 and yet without any reservation, he endorsed the entries in the service book by appending his signature thereto on 12.11.1986. Even thereafter, when the gradation lists was circulated in the year 2006 and also in the year 2012, the birth date was recorded as on 21.2.1955 against the respondent, but even then, he failed to apply for rectification. Therefore at least on three occasions the recorded birth date was made known to the employee but he never questioned the correctness of the entry. 11. Eventually at the fag end of his service career, the respondent made a representation on 5.12.2012, for correction of his date of birth but the same was rejected on 12.12.2012, on the ground of belated application. Even at this stage, the respondent failed to challenge the employer’s decision in a legal forum and re-applied for the same relief through his 2nd representation dated 26.2.2014 but then, the earlier rejection decision was reiterated on 10.4.2014 by the employer. 12. Under the applicable norms, the application for rectification of date of birth must be made within reasonable time limit of three years. Here if we ignore the time limit from the date of joining service and calculate it from the date of knowledge of the respondent, the employee should have applied for correction of the entry in his service book soon after the same was brought to his knowledge. But he signed the service book endorsing the entries therein without any protest on 12.11.1986 and allowed the incorrect entry to remain without objection until he represented for the first time on 5.12.2012.
But he signed the service book endorsing the entries therein without any protest on 12.11.1986 and allowed the incorrect entry to remain without objection until he represented for the first time on 5.12.2012. Then also when his representation was rejected on 12.12.2012, the employee failed to approach any legal forum with reasonable promptitude and he filed the O.A. in the Tribunal only on the eve of superannuation. 13. While the HSLC certificate can be an acceptable document for rectification of the date of birth for an employee, the representation for rectification can’t be considered on the eve of retirement as was held in the Secretary & Commissioner, Home Department v. R. Kirubakaran, reported in AIR 1993 SC 2647 . It is well settled that application for correction of date of birth can’t be entertained at the fag end of the service career (Burn Standard Co. Ltd. v. Dinabandhu Majumdar reported in AIR 1995 SC 1499 ). 14. Following the above legal principles, when the respondent knew in 1986 itself of the entry in the service book, as can be gathered from the signature of the respondent appended on 12.11.1986, the belated approach for age correction many years thereafter, is indeed uncondonable. Therefore the direction for rectification of the date of birth, ordered by the learned CAT, in view of the ratio of the Apex Court’s decisions referred to above, is found to be erroneous. Accordingly the impugned decision dated 27.2.2015 (Annexure-p/14) in the O.A. No. 040/00283/2014 of the CAT is quashed. 15. We therefore declare that the date of superannuation of the respondent should be on the basis of the date of birth (on 21.2.1955), recorded in his service book. Hence steps should be taken for early release of his retirement dues with 28.2.2015, as his retirement date. But for the extra service rendered until 26.5.2015, recovery should not be made as this will cause hardship to the retired person. It is ordered accordingly. 16. With the above order, the writ petition stands allowed in the manner indicated, without any order on cost.