Delhi High Court
O.P. Bhalla vs New Delhi Municipal Council And Ors. on 9 September, 1996
Equivalent citations: 1996IVAD(DELHI)603, 65(1997)DLT895
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
(1) This petition has been filed by the petitioner primarily to take benefit of the judgment of the Supreme Court in the case of Union of India v. Harnam Singh, . In this judgment, the Supreme Court while interpreting note (5 to Fundamental Rights 56, governing the correction of the date of birth in service record, has interpreted that within 5 years from the date of this notification, (30.11.79) the Government servant can apply for any correction in the date of birth.
(2) The submission of the petitioner is that he has applied for correction within 5 years from the date of the said notification, and the respondent/N.D.M.C. was under an obligation to correct the same but the respondent has erroneously and illegally rejected the petitioner's representation to that effect. Brief facts which are necessary to appreciate the controversy involved in this case are set out as under:
(3) The petitioner who was an employee of the New Delhi Municipal Committee (N.D.M.C.). At the time of joining the service, 19th April, 1936, was recorded as the date of his birth. This was done on the basis of school leaving certificate filed by the petitioner.
(4) The submission of the petitioner is that his real date of birth is 14th April, 1938 which was correctly recorded in the school leaving certificate. The N.D.M.C. asked the petitioner to obtain the certificate of Matriculation examination where correct date of birth has been recorded.
(5) It is submitted that the petitioner was born on 14th April, 1938 at Sarai Alam Gir, District Gujarat, Pakistan. He studied upto 2nd standard in the Government High School, Sarai Alam Gir, District Gujarat, Pakistan. When the partition of the country took place, he alongwith his parents migrated to India and was lodged in the refugee camp at Kurukshetra. The father of the petitioner died of cholera. The petitioner was admitted to the refugee camp at Kurukshetra by his maternal grand parents, who happened to give his date of birth on estimation as 19th April, 1936.
(6) On the basis of his chance discussion with his mother, the petitioner came to learn that his date of birth could not be 19th April, 1936 and according to her, the petitioner was born on 14th April, 1938. She informed the petitioner that his correct date of birth was entered by his father in the school admission form at Sarai Alam Gir, District Gujarat, Pakistan. In order to get the proof of the same, the petitioner applied to the Headmaster, Primary School, Sarai Alam Gir, District Gujarat, Pakistan, through the Ministry of External Affairs, Government of India. The Government of India forwarded the application of the petitioner to the Indian High Commission in Pakistan and the matter was duly pursued. Ultimately, the school authorities of Pakistan gave a school leaving certificate on the basis of record they had maintained. According to the school leaving certificate, the date of birth of the petitioner was mentioned as 14th April, 1938. On the strength of the said certificate, the petitioner got necessary corrections carried out in the Matriculation certificate and the same was produced before the Secretary, N.D.M.C. (7) The N.D.M.C. in the subsequent correspondence asked the petitioner to produce certain original documents. Those documents were also furnished from July, 1985 to 1990, the matter remained under correspondence and under consideration of the N.D.M.C. In February, 1990, the petitioner was orally informed that his case was rejected but nothing was given to him in writing. The petitioner had sent some reminders but he did not hear from the N.D.M.C. but before he could receive any firm reply to his representation, the petitioner received retirement notice dated 3.5.93 in which it was mentioned that according to the service record, the date of birth of the petitioner was recorded as 19th April, 1936. Therefore, he would accordingly retire from the service of the respondent -N.D.M.C. w.e.f. 30th April, 1994. Thereafter, the petitioner had again sent a representation to the N.D.M.C. but received no reply. Ultimately, on 8.3.94, the petitioner was informed by the N.D.M.C. that his request for change in the date of birth as recorded in the service records had been examined in detail and there being no valid ground for changing his date of birth and consequently the petitioner's request was rejected by the Administrator, N.D.M.C. vide his order dated 8th March, 1994.
(8) Ultimately, the petitioner was compelled to move this Court by filing this writ petition. In this petition, the petitioner had specifically mentioned that the N.D.M.C. is discriminating amongst its employees. He had given a specific instance of Shri Sadhu Singh, who was working as a driver in the N.D.M.C. Even after his retirement the Ndmc allowed the change in his date of birth and, delay was also ignored whereas much better case of the petitioner, was rejected. The petitioner had submitted the representation seeking alteration of his date of birth within 5 years of the notification, even then the petitioner's representation was rejected without any valid ground.
(9) According to the Supreme Court judgment, the date of birth of a Government servant can be corrected within 5 years of the notification, meaning thereby, five years from 30th November, 1979. The petitioner had applied in 1983 well within the specified limit of five years, on the strength of the corrected High School certificate.
(10) This Court issued rule in the petitioner's petition, and directed that the petitioner shall not be dispossessed from the house allotted to him by the respondent /NDMC. The N.D.M.C. filed reply affidavit of Shri A.S. Awasthi, Secretary, N.D.M.C. From this affidavit, it is clear that the petitioner's claim has been rejected on the ground of delay and latches, and because of wrong interpretation of the said Supreme Court judgment in Harnam Singh's case (supra).
(11) The ratio of the judgment is that the Government servants can get the date of birth corrected within 5 years from the date of notification (30th November, 1979). In that case, the petitioner would not be non suited on the ground of earlier delay. In this case, admittedly, the petitioner had sought the necessary correction of the date of birth in 1983 i.e., within 5 years. Therefore, the respondent-N.D.M.C. was not justified in rejecting the bonafide claim of the petitioner filed well within the prescribed time limit.
(12) During the pendency of the writ petition, the petitioner has retired even as per his correct date of birth i.e. 14th April, 1938. Therefore, the petitioner can now only claim financial and other consequential benefits.
(13) I have heard the learned Counsel for the parties and examined the relevant documents. In the facts and circumstances of this case, the claim of the petitioner seems to be totally legitimate and justified. Consequently, the N.D.M.C. is directed to calculate the financial and other consequential benefits and to give all those benefits to the petitioner, to which he is entitled to within 3 months from today. Since the petitioner has already retired from the service, even on the basis of corrected date of birth, therefore, the petitioner must vacate the accommodation allotted to him by the N.D.M.C. according to the Rules. The interim order granted by this Court in this regard is accordingly modified. In case the accommodation is not handed over by the petitioner, the N.D.M.C. would be entitled to withhold this amount till the accommodation is handed over to the N.D.M.C. (14) The writ petition is accordingly allowed and disposed of but in the facts and circumstances of this case, the parties are directed to bear their own costs.