Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 1251 (GUJ)

RATHOD KANJI KHIMJI v. STATE OF GUJARAT

2018-12-11

A.J.SHASTRI

body2018
JUDGMENT : 1. JUDGMENT : 1. The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs: “(A) Your lordships be pleased to issue a writ of certiorari to quash and set aside the order 12.8.2011 passed by the respondents (Annexure - A); (B) Your Lordships be pleased to issue a writ of mandamus commanding the respondents to reinstate the petitioner to his original post with all consequential benefits; (C) Your Lordships be pleased to permanently restrain the respondents from retiring the petitioner at the age of 55 years and by considering his date of birth as 14.8.1956; (D) Your Lordships be pleased to issue a writ of mandamus commanding the respondents to allow the petitioner to serve in the Border Wing Home Guards of No.2 Battalion, Kachchh-Bhuj till the age of 58 years, in light of the High Court's CAV Judgment dated 6.4.2011 passed in Letters Patent Appeal 712 of 2005; (E) Pending admission and final hearing of the present petition, Your Lordships be pleased to stay the operation and implementation of the order dated 12.8.2011 passed by the respondents(Annexure-A); (F) Pending admission and final hearing of the present petition, Your Lordships be pleased to direct the respondents to reinstate the petitioner in service with all consequential benefits by giving effect to the High Court's CAV Judgment dated 6.4.2011 passed in Letters Patent Appeal 712 of 2005; (G) Your Lordships be pleased to issue a writ of certiorari to quash and set aside the order dated 12.8.2011 passed by the respondents (Annexure-A); (H) Your Lordships be pleased to issue a writ of mandamus commanding the respondents to reinstate the petitioner to his original post with all consequential benefits; (I) Your Lordships be pleased to issue a writ of mandamus commanding the respondents to correct/rectify the service records of the petitioner so as to reflect his correct date of birth which is 2.12.1965 and not 14.8.1956; (J) Your Lordships be pleased to permanently restrain the respondents from retiring the petitioner at the age of 55 years and by considering his date of birth as 14.8.1956; (K) Your Lordships be pleased to issue a writ of mandamus commanding the respondents to allow the petitioner to serve in the Border Wing Home Guards of the No.2 Battalion, Kachchh-Bhuj till the age of 58 years and by considering his date of birth as 2.12.1965; (L) Your Lordships be pleased to declare that the petitioner's correct date of birth is 2.12.1965 and his superannuation age is 58 years in light of the High Court's CAV Judgment dated 6.4.2011 passed in Letters Patent Appeal 712 of 2005; (M) Pending admission and final hearing of the present petition, Your Lordships be pleased to restrain the respondents from retiring the petitioner by considering his date of birth as 14.8.1956 and his superannuation age as 58 years; and (N) Your Lordships may be pleased to pass any other appropriate order, as deemed fit in the interest of justice.” 2. By way of draft amendment, aforesaid prayers (A) to (F) have also been added but, when the matter is taken up for hearing, two main issues were agitated before the Court about correction of date of birth and to extend the benefit of retirement dues by treating his age of superannuation as 58 years and, therefore, the Court has taken up the issue in the aforesaid perspective as per the broad submissions of both the learned advocates. 3. It is the case of the petitioner that the petitioner was born in Village Suvai on 2nd December, 1965 which date of birth is recorded in the Birth and Death Register to be maintained by the local authority under the provisions of Registration of Birth and Death Act, 1969 read with Rule 8 of the Gujarat Registration of Birth and Death Rules, 2004. The same is also certified on 21.1.2011 by the Judicial Magistrate First Class and Civil Judge, Rapar- Kachchh. On the basis of this date of birth, which has been recorded, the petitioner is to retire on 31.12.2020 on the basis of 55 years of service and if the petitioner's age of superannuation is to be construed as 58 years, then he would be retiring on 31.12.2023. It is the case of the petitioner that despite the aforesaid situation, the respondent authority wanted to retire him from the services on 31.8.2011, considering the date of birth of the petitioner as 14.8.1956 which has been recorded in the service record of the petitioner. It is further the case of the petitioner that apprehending his retirement on the basis of incorrect date of birth, which is being recorded in the service book, the petitioner approached this Court by way of Special Civil Application No.8974 of 2011 inter alia praying to rectify the service record of the petitioner so as to reflect his correct date of birth as 2.12.1965 instead of 14.8.1956 and prayed to permanently restrain the respondent from retiring the petitioner on the basis of 55 years by considering the correct date as 14.8.1956. The High Court vide order dated 19.7.2011 directed the petitioner to make a detailed representation and accordingly, respondent No.2 was under a direction to examine and communicate the decision on or before 23.8.2011. Accordingly, the petitioner made a detailed representation on 20.7.2011. The High Court vide order dated 19.7.2011 directed the petitioner to make a detailed representation and accordingly, respondent No.2 was under a direction to examine and communicate the decision on or before 23.8.2011. Accordingly, the petitioner made a detailed representation on 20.7.2011. However, vide order dated 12.8.2011, the petitioner's representation came to be rejected on the ground that once the entry of the age or date of birth has been made in the service book, no alternation of entry afterwards be allowed nor any alteration will be allowed within few days before superannuation and this decision dated 12.8.2011 is under challenge in the present proceeding. 4. Mr. Niral Mehta, learned advocate for the petitioner has vehemently contended that the correct date of birth of the petitioner, which has been recorded by the statutory authority under the provisions of Registration of Birth and Death Act, 1969 read with Rule 8 of the Gujarat Registration of Birth and Death Rules, 2004, is 2.12.1965 and, therefore, this date i.e. 2.12.1965 is to be treated as valid for all purposes and not only that, the learned Judicial Magistrate First Class and Civil Judge, Rapar-Kachchh has also certified it by way of certification dated 21.1.2011 and, therefore, the petitioner is to be retired on the basis of this correct date of birth i.e. 2.12.1965. 5. It has further been contended that when the petitioner came to know about this fact, a legitimate expectation was to see that the incorrection, which has taken place, must be corrected by the authority since the recording of date of birth is completely in consonance with the rules relevant to the issue. It has further been contended that the respondent authority has not followed the procedure as laid down under Rule 40 of the Gujarat Civil Services (General Conditions of Services) Rules, 2002 which has mandated the authority to verify the relevant documents while dealing with the issue and, therefore, the rejection which has taken place against the petitioner is invalid. 6. Mr. 6. Mr. Niral Mehta, the learned advocate has further contended that additionally, it is also reflecting that the Home Guard services were to be treated akin to the State services and, therefore, right upto the Hon'ble Apex Court, this issue has been scanned and accordingly, the petitioner's services are to be treated on the basis of retirement age as 58 years and not 55 years and, therefore, in addition to the correction of date of birth, the age of retirement is also to be treated as 58 years. Mr. Mehta, learned advocate has further contended that error which has been crept in can be considered for rectification in view of the procedure, which is to be adopted, as laid down by Hon'ble Apex Court in the decision rendered in Civil Appeal No.3043 of 2006 arising out of Special Leave Petition(Civil) No.17788 of 2005 where the request of the petitioner was legitimately pressed, which ought not to have been ignored. It has further been contended that the petitioner is given a permanent status by virtue of implementation of a decision dated 6.4.2011 delivered in Letters Patent Appeal No.712 of 2005 and, therefore, the age of superannuation of the petitioner is to be treated at 58 years instead of 55 years. The petitioner erroneously was tried to be superannuated much before 12 years from his usual reaching the age of superannuation and, therefore also, the action is not only unjust and arbitrary but contrary to settled proposition of law. Mr. Niral Mehta, learned advocate has further submitted that apart from this, even by virtue of the decision of the Hon'ble Apex Court, which has confirmed the decision of the Division Bench of this Court, the age of retirement in any case is to be treated as 58 years and, therefore, at least the petitioner is legitimately entitled to all due benefits on the basis of 58 years and not 55 years. So, even if the issue of correction of date of birth is not be considered at this stage, at least this aspect is to be considered as all employees similarly situated have been extended such benefit by treating their age of superannuation at 58 years and, therefore, difference of this period is also to be paid to the petitioner. In view of this, learned advocate has requested the Court to grant the relief as prayed for in the petition. 7. In view of this, learned advocate has requested the Court to grant the relief as prayed for in the petition. 7. No other submissions have been made. 8. To meet with the stand taken by learned advocate for the petitioner, Mr. Bhargav Pandya, learned Assistant Government Pleader appearing for the State authority has submitted that here is the case in which the birth date correction request has been made by the petitioner at the fag end of his service and all throughout, he has continued to discharge his function on the basis of birth date which has been recorded at the relevant point of time. This move has taken place only with a view to see that some more benefit is carried and derived after disposal of Special Leave to Appeal (Civil) No.17143 of 2011 on 29.7.2011 as reflecting on page 67. The learned Assistant Government Pleader has submitted that here is the case in which there is no challenge to the rule in any form and it is undisputed fact that services are being governed by the provisions of Gujarat Civil Services Rules, 2002 as is applicable to Home Guard employees, who are appointed under Bombay Home Guards Act, 1947. According to learned AGP, Rule 40 is clearly indicating that an employee who joins the service of Government has to request for correction of date of birth within a period of five years of continuous service after joining or after the probation period over, whichever is earlier, and this rule has got a statutory effect and the same has not been observed by the petitioner is not controverted. Even apart from this, learned AGP has substantiated his submission by referring to the decisions delivered by the Hon'ble Apex Court in the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majumdar and Another reported in (1995)4 SCC 172 and also in the case of G.M.Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and others reported in (2000)8 SCC page 696 and has contended that no such change can now be permitted at the fag end of his service. Mr. Ltd. and others Vs. Dinabandhu Majumdar and Another reported in (1995)4 SCC 172 and also in the case of G.M.Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and others reported in (2000)8 SCC page 696 and has contended that no such change can now be permitted at the fag end of his service. Mr. Pandya, learned AGP has placed on record the xerox copy of the decision taken by the State authority after disposal of Letters Patent Appeal No.1231 of 2017 decided by the Division Bench of this Court and by virtue of said decision, the retirement age of the employees, who are serving in the Home Guards organization have been treated to be that of 58 years instead of 55 years and the said conscious decision is taken on 7.8.2018. A further resolution is also placed on record dated 23.8.2017 in which also, it has been resolved that pursuant to the Division Bench judgment of this Court as well as of the Hon'ble Apex Court, even all part-time employees are also being paid the wages and allowances for the period commencing from 6.4.2009 to 5.4.2011 and by referring to these two decisions of the Government, learned Assistant Government Pleader has submitted that at the best, the case of the petitioner can be considered by treating the petitioner's services as per 58 years and difference of the period between 55 years and 58 years is possible to be paid to the petitioner and by taking proper instructions in the presence of officers, who are present before the Court, learned Assistant Government Pleader has submitted that such difference of pay, allowances and consequential effect will be given to the petitioner preferably within the reasonable period of three months and services of the petitioner would be treated to have been superannuated at the age of 58 years and by referring to these, a request is made that in view of the aforesaid decisions, which are delivered by Hon'ble Apex Court and in view of a specific effect of Rule 40 of Gujarat Civil Services Rules, 2002, it is not open for the petitioner to make any grievance with regard to correction of date of birth. By referring to the well reasoned paragraph from the decision of Hon'ble Apex Court dated 19.7.2006, the learned AGP has requested the Court not to entertain the grievance of the petitioner with regard to the correction of the date of birth. Since the said paragraph and the observation finding it relevant is reproduced hereinafter: “ ...... The said respondent did not take any step nor made any representation for correcting his date of birth till September 9, 1986. In case of Union of India v. Harnam Singh ( 1993 (2) SCC 162 ) the position in law was again re-iterated and it was observed: “A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay.” By referring to these, learned AGP has requested the Court not to grant any relief in the direction of correction of date of birth, of course, has candidly submitted on instruction that whatever due benefits which are to be paid on the basis of treating the petitioner as superannuated at the age of 58 years and not 55 years, the same will be extended as early as possible. With these submissions, learned AGP has requested the Court to dispose of the petition. 9. Having heard the learned advocates appearing for the respective parties and having gone through the material on record, it clearly appears that the petitioner has joined the services on the basis of his date of birth as 14.8.1956 and has raised the grievance with regard to correction of date of birth only from the year 2011 when the controversy has been set right by Hon'ble Apex Court vide decision taken in the year 2011 in Special Leave to Appeal (Civil) No.17143 of 2011 reflecting on page 67. So, undisputedly prior thereto, atleast prior to the decision delivered by the Division Bench of this Court, no such dispute has been raised. So, undisputedly prior thereto, atleast prior to the decision delivered by the Division Bench of this Court, no such dispute has been raised. Apart from this, it is also reflecting that the certification which has been got about his correct date of birth is also obtained in the month of January 2011 and not prior thereto. As a result of this, it appears that throughout, the petitioner has not raised any grievance and has made an attempt at the fag end of his career. 10. In such a situation, a perusal of Rule 40 of Gujarat Civil Services Rules, 2002, which is undisputedly applicable, has clearly suggested that within a period of five years on completion in the service or after lapse of probation period, whichever is earlier, the correction of date of birth issue can be raised and requested by the concerned employee and it has been stated that in any case such request cannot be entertained after 5 years of length in the service. It is undisputed fact here that the petitioner has not observed the effect of this rule and has never applied prior thereto upon completion of 5 years and it is not even the case of the petitioner as well and as such, in the absence of any challenge to the rule and the same binding upon the petitioner, the Court is of the clear opinion that such request of correction of date at this stage cannot be permitted, otherwise the same would frustrate the very object for which the rule is stipulated. 11. Additionally, the Hon'ble Apex Court time and again has observed that no such request at a belated stage be entertained and the paragraph which has been quoted hereinbefore is also amply clear. Further, the High Court in exercise of jurisdiction should not undertake such inquiry which consists of elements of fact and, therefore, in such a situation when not only the petitioner has not applied the same in compliance with the Rule 40 but has also applied much after the decision which has taken place by this Court and confirmed by the Apex Court and, therefore, the Court is of the opinion that this is not a fit case in which any extra- ordinary jurisdiction deserves to be exercised. Similar was the position before Hon'ble Apex Court in the case of G.M.Bharat Coking Coal Ltd., West Bengal Vs. Similar was the position before Hon'ble Apex Court in the case of G.M.Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and others reported in (2000)8 SCC page 696 wherein, after considering the effect and after considering series of decisions, Hon'ble Apex Court has observed like this in paragraphs 23 and 24. Since the same is considered by the Court and relied upon, it deems it proper to reproduce hereinafter: “23. In the case of Union of India v. C. Ramaswamy, (1997) 4 SCC 647 : (1997 AIR SCW 1879 : AIR 1997 SC 2055 ), interpreting Rule 16A of the All India Services (Death cum Retirement Benefits) Rules, 1958, this Court held that the date of birth as recorded in the service book and the date as declared by an officer in the application for recruitment has to be accepted as correct by the Central Govt. and this can be altered only if under sub-rule (4) it is established that a bona fide clerical mistake had been committed in accepting the date of birth (See Para 21). 24. On the analysis and the discussions in the foregoing paragraphs, we have no hesitation to hold that the High Court erred in interfering with the date of birth/age of the respondent as determined by the appellant. Accordingly, the appeal is allowed. The judgment of the single Judge in writ petition No. 2717 of 1994 and the judgment of the Division Bench, confirming the judgment of the single Judge with a modification, are set aside. Writ petition stands dismissed. Consequentially the respondent shall not be entitled to any service benefit on the basis of the service beyond the date/year of superannuation as determined by the appellant, except the salary/wages already received by him. No costs.” 12. Yet in another decision, which is almost relevant to the issue in controversy, delivered in the case of Burn Standard Co. Ltd. and others Vs. No costs.” 12. Yet in another decision, which is almost relevant to the issue in controversy, delivered in the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majumdar and Another reported in (1995)4 SCC page 172, Hon'ble Apex Court has also dealt with the similar issue with regard to a request of correction of date of birth by an employee and has held that date of birth entered in the service and leave record, on the basis of voluntary declaration made by an employee at the time of the appointment authenticated by him and never objected to upto the fag end of service, ordinarily cannot be entertained in a writ petition on grounds of delay, laches and acquiescence. In view of this, the claim with regard to the correction of date of birth is not possible to be accepted by this Court in exercise of jurisdiction under Article 226 of the Constitution of India and, therefore, qua that issue, the petition stands dismissed. 13. However, with regard to the issue, which is now well settled, the petitioner is entitled to the same treatment in respect of the superannuation age and the Division Bench as well as Hon'ble Apex Court have clearly opined that whatever benefits which are available to the permanent and full time Border Wing Home Guards, the same have to be given to the petitioner and the like employees and, therefore, in view of the proposition of law which has been laid own by the Division Bench of this Court, the petitioner is entitled to be superannuated as on reaching the age of 58 years and since there is no quarrel on the issue of treating the petitioner as being superannuated on reaching the age of 58 years on the part of the respondent authority, the Court deems it proper to consider the case of the petitioner in this direction. This fact is not in dispute even from the side of the authority which has accepted the said proposition laid down by the Court and treated the age of superannuation as that of 58 years by now. As a result of this, there is no contest against the petitioner in so far as extending all consequential benefits to be paid to the petitioner by treating his age of superannuation to that of 58 years. As a result of this, there is no contest against the petitioner in so far as extending all consequential benefits to be paid to the petitioner by treating his age of superannuation to that of 58 years. In view of this, there is no much insistence on the part of learned advocate for the petitioner and with these broad agreement on the aforesaid proposition, the respondent authorities are directed to pay all consequential benefits to the petitioner by treating his age of superannuation at 58 years. Though multifarious reliefs have been prayed for in the petition, but upon such submission and proposition, the Court deems it proper to mould the relief and grant, whereby the respondent authorities are directed to pay all the consequential benefits to the petitioner within a period of three months from the date of receipt of this order. This petition is accordingly partly allowed. Rule is made absolute to aforesaid extent.