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2018 DIGILAW 221 (GAU)

Union of India v. K. Chandraiya

2018-02-06

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : MANOJIT BHUYAN, J. 1. Heard Mr. H.K. Das, learned counsel representing the petitioners as well as Mr. M. Dutta, learned Counsel for the respondent. The issue concerns determination of the correct date of birth of the respondent herein K. Chandraiya whether it is 16.10.1953 or 16.10.1959. The former is the date of birth primarily recorded in the Service Book of the respondent, whereas the latter has been claimed on the basis of the Service Book for Casual Labour at a time when the respondent was engaged in such capacity. Reference is made to certain other documents by either side in support of their individual stand, which shall be referred to in the present order. 2. To trace few relevant dates chronologically, the respondent was initially engaged as a Project Casual Labour under the establishment of the appellant on 16.10.1975. He worked off and on and eventually was granted Temporary Status w.e.f. 25.09.1984 vide order dated 24.11.1986. In the list of Casual Labours who had been granted Temporary Status, the name of the respondent figured at serial no. 96, with the date of birth shown as 16.10.1953. For removal of doubt, the respondents name was initially K. Trinath, which was subsequently changed to his present name K. Chandraiya. At serial no. 96 of the Temporary Status List, he is therefore shown as K. Trinath. 3. On his entry into regular service, Service Book was opened and the date of birth recorded in the opening page of the Service Book is 16.10.1953, similar to the one as recorded in the aforesaid Temporary Status order. His educational qualification is shown as having read up to Class-V. The opening page contains his finger impressions including his left hand thumb impression, duly attested to by an officer in the rank of the Executive Engineer, N.F. Railways, Maligaon. This position with regard to his date of birth as shown in the order granting Temporary Status as well as in the opening page of the Service Book remained unaltered and unaffected although in certain other documents, say in the Provisional Seniority List published in the year 1997, 2000 and 2005, his date of birth was shown as 16.10.1959. In some other documents, say in the various provident fund temporary withdrawal slips/ documents, the date of birth of the respondent are shown as 16.10.1953. In some other documents, say in the various provident fund temporary withdrawal slips/ documents, the date of birth of the respondent are shown as 16.10.1953. Besides, in one of the documents i.e. the Medical Fitness Certificate dated 08.04.1987 issued by the Assistant Medical Officer, N.F. Railways, Maligaon, his age is recorded as 33 years 5 months 8 days as on 08.04.1987, which on calculation works out to his birth year being 1953. 4. On 09.06.2011, the Railway authorities published a Retirement List and at serial 15 thereof, the date of retirement of the respondent was shown as 31.10.2013, having regard to his date of birth as 16.10.1953. About one year later i.e. on 31.07.2012, the respondent submitted representation before the Divisional Railway Manager (P), Lumding, N.F. Railways, for correction of his date of birth. In April 2013, he approached the Central Administrative Tribunal, Guwahati Bench being aggrieved of the Retirement List dated 09.06.2011 and for non-disposal of his representation dated 31.07.2012. Grievance expressed is that the date of birth shown in the Retirement List as 16.10.1953 is incorrect as all other previous records and seniority list shows his date of birth as 16.10.1959. The Original Application was allowed by setting aside the Retirement List dated 09.06.2011 in so far as the respondent was concerned, with direction to the appellants to take into account the date of birth of the respondent herein as 16.10.1959. The findings and decision of the Tribunal is based on the factors (i) the date of birth of the respondent recorded in the Service Book for Casual Labour is 16.10.1959, (ii) the Provisional Seniority List for the post of Khalashi/Helper/AC as on 01.04.1997 shows the date of birth the of the respondent as 16.10.1959, (iii) in the Provisional Seniority List as on 01.04.2000, it is shown as 16.10.1959 and (iv) in the Provisional Seniority List as on 01.04.2005, it is again shown as 16.10.1959. The Tribunal also referred to Rule 225 of IREC Vol. 1 where the requirement is that the date of birth is to be entered in the record of service by the Railway servant in his own handwriting in case he is a literate person. In the case of illiterate staff, the declared date of birth is to be recorded by a senior Railway servant and witnessed by another Railway servant. 1 where the requirement is that the date of birth is to be entered in the record of service by the Railway servant in his own handwriting in case he is a literate person. In the case of illiterate staff, the declared date of birth is to be recorded by a senior Railway servant and witnessed by another Railway servant. In the case in hand, the Tribunal held that if the respondent is considered to be a literate person, the date of birth was to be entered in his own handwriting, which is not seen as there are thumb impressions of the respondent and no signature appeared. Also, the handwriting as appearing do not show that it is that of the same person. The Tribunal also held that if the respondent was an illiterate person, the declared date of birth ought to have been recorded by a senior Railway servant and witnessed by another Railway servant. In the case in hand, although there is a signature of one attesting Officer, there is no signature of another Railway servant standing as witness. According to the Tribunal, much confusion prevailed, so much so that the Service Book was not properly maintained. Also, the appellants failed to review the Service Book at least every 5 (five) years, as required to be done. 5. Having noticed the basic facts above, it may be observed that in matters relating to correction of the date of birth, the Tribunal or the High Court should not interfere unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the public servant concerned. The onus is always on him to prove and substantiate any wrong recording of the date of birth in his Service Book. It cannot be lost sight of that in many cases a public servant approaches the Courts or the Tribunal on the eve of their retirement, questioning the correctness of the entries with regard to the date of birth in the Service Book. Generally, when a person is taken into service on appointment, the employer would require him to declare his correct date of birth and in support of the same by production of relevant certificates or documents. Generally, when a person is taken into service on appointment, the employer would require him to declare his correct date of birth and in support of the same by production of relevant certificates or documents. Where persons fail or are unable to produce the certificates or documents in proof of their date of birth, they are required to affix their thumb impression or signature in authentication of their declared dates of birth. When on the basis of such declaration, an entry is made of his date of birth in the Service Book, that will amount to acceptance of such date of birth as correct. 6. The Master Circular of 19.11.1990, issued by the Government of India, Ministry of Railways, lays down the procedure for recording the date of birth on entering Railway Service as well as the procedure for alteration. According to it, the date of birth as recorded in accordance with the rules shall be held to be binding and no alteration shall ordinarily be permitted subsequently. The time period for making a request for alteration is either before completion of the probation period or three years service, whichever is earlier. A rider is provided that the time limit will not apply in the case of illiterate Group-D staff. The relevant part of the Master Circular, with which we are concerned of, is Clause 3 thereof. It reads as under: "3. In the case of literate staff, the date of birth shall be entered in the record of service in their own handwriting. In the case of illiterate staff, the declared date of birth shall be recorded by a senior railway servant and witnessed by another railway servant." Having regard to the aforesaid provision, a perusal of the Service Book produced in original, particularly the opening page thereof, shows that the date of birth is recorded as 16.10.1953, which has been endorsed and authenticated by the respondent by affixing his finger impressions, perhaps because he only read up to Class V, including his Left Thumb Impression. The said impressions have been attested by a senior Railway servant in the rank of Executive Engineer, N.F. Railways, Maligaon. The only shortfall in the document is the absence of a witness. The said impressions have been attested by a senior Railway servant in the rank of Executive Engineer, N.F. Railways, Maligaon. The only shortfall in the document is the absence of a witness. Compared to this, the document produced by the respondent in the form of the Service Book for Casual Labour where his date of birth is shown as 16.10.1959, is a document which was never produced before the authorities as a supporting certificate or document at the time of opening of the Service Book on regular entry into service. There are no pleadings to the effect that the Casual Labour Card had been produced at the relevant time and the Railway authorities had ignored/ discarded the same from due consideration. In our opinion, the Casual Labour Card does not amount to irrefutable proof relating to his date of birth. In any case, the procedure and the rules only make mention of the Service Book on entering regular service, in which the Government Servant is required to declare his date of birth and which shall be accepted by the appropriate authority. In support of the declaration so made, support may be had to confirmatory documentary evidence, as prescribed under the rules. In the case in hand, it is not the case of the respondent that he had produced confirmatory evidence in the form of the Casual Labour Certificate where his date of birth is recorded as 16.10.1959 and that the same was not taken into consideration. 7. The counter argument of the respondent is that the Service Book brought on record, where the date of birth is shown as 16.10.1953, is not a genuine or the correct Service Book. Allegations of endorsements being made in different inks is made to demonstrate that the date of birth so shown had been subsequently entered. Also, the date of verification made by an Officer shown as 01.05.1990 raises reasonable doubt as to the genuinity of the Service Book, as brought on record. According to the respondent this is not the Service Book which had been prepared at the time of regular entry into service in the year 1986. It is also argued that copy of the Temporary Status order as well as copy of the Service Book was made available to the respondent for the very first time pursuant to his application under the Right to Information Act in the year 2013. It is also argued that copy of the Temporary Status order as well as copy of the Service Book was made available to the respondent for the very first time pursuant to his application under the Right to Information Act in the year 2013. Until then, he was not aware that his date of birth was recorded as 16.10.1953. He was all along under the belief that his date of birth in the Service Records is 16.10.1959, which was shown in the Provisional Seniority List as well as in the Casual Labour Card. 8. We do not agree to the submission made on behalf of the respondent. Although a statement has been made that the Casual Labour Card was submitted in original to the Railway authorities, when asked for, the same had been denied by the appellants in their written statement before the Tribunal. There is no evidence to show that the Casual Labour Card was produced as a supporting document at the time of opening of the Service Book on regular entry into service. It is most unlikely that a casual labour who had been granted Temporary Status would be unaware of the order granting the benefit or be without a copy of such order. Also, it is most unlikely that since initial entry into regular service in the year 1986 and until the year 2011, a Government Servant would be unaware of his date of birth shown recorded in the Service Book. According to us, no clear case is made out by the respondent by producing materials which can be held to be conclusive in nature to justify that his date of birth is 16.10.1959 and not 16.10.1953. The Tribunal while discussing the various other documents i.e. the Provisional Seniority Lists, while deciding the case in favour of the respondent, utterly failed to read the opening page of the Service Book in its corrective perspective. It merely recorded some confusions arising out of the handwritings appearing in the opening page of the Service Book and that of the absence of a witness. The observation so made cannot conclusively discredit the endorsements, finger impressions and attestation made by a senior Railway servant, as appearing in the opening page of the Service Book. There is no substantial departure from the rules and procedure prescribed for recording date of birth of a Government servant, who is an illiterate person. 9. The observation so made cannot conclusively discredit the endorsements, finger impressions and attestation made by a senior Railway servant, as appearing in the opening page of the Service Book. There is no substantial departure from the rules and procedure prescribed for recording date of birth of a Government servant, who is an illiterate person. 9. For all the reasons stated above, we do not agree with the findings and decision of the Tribunal. Accordingly, the order of the Tribunal dated 30.10.2013 is set aside and quashed and the present writ petition stands allowed. No cost.