Central Administrative Tribunal - Chandigarh
Unknown vs The Union Of India Through Secretary on 31 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.No.1253-PB-2011 Decided on: 31.05.2012
CORAM : HONBLE MS. SHYAMA DOGRA, MEMBER (JUDICIAL)
Ved Parkash son of Shri Bihari Lal, Refrigerator Mechanic, office of MES, Ferozepur i.e. CE (West), Ferozepur.
. APPLICANT
By: Mr. Vinod Khungar, Advocate
VERSUS
1. The Union of India through Secretary, Ministry of Defence, New Delhi.
2. Commander Works Engineer, Ferozepur Cantt.
3. The Garrison Engineers (West), Military Engineer Service, Ferozepur Cantt.
By: Mr. Ashwani Kumar Sharma, Advocate
Mr. Ram Niwash, Subedar Major C/o GE (West) Ferozepur Cantt,
Departmental Representative.
. RESPONDENTS
O R D E R (oral)
SHYAMA DOGRA, MEMBER (J) The applicant has filed this O.A. challenging the order dated 7.7.2010 (A-8) vide which his representation for correction of date of birth from 17.5.1952 to 17.7.1952 has been rejected with a prayer to quash the same and that the respondents be directed to correct his date of birth as 17.7.1952 on the basis of matriculation certificate and not to force him to submit pension papers.
2. The facts in brief are that the applicant joined service as P/Attendant on 31.3.1973 and at present he is working as Refrigerator Mechanic in the office of MES, Ferozepur. He claims that his Date of birth is 17.7.1952 whereas due to clerical mistake, it has been wrongly mentioned as 17.5.1952. The applicant submitted number of representations starting from 1978 onwards including one dated 12.11.1979 (A-1), 15.4.1986 (A-2), 23.2.1978 (A-3) and 2.12.2009 (A-4). The office has mentioned his amended date of birth on front page of service book on the basis of his record but same has not been published. He is having GPF Account No. in which his date of birth is mentioned as July, 1952 (A-5). Even in pay certificate, it is mentioned as 17.7.1952 (A-6). The applicant served a legal notice for correction of date of birth to 17.7.1952 vide Annexure A-7, which has ultimately been rejected vide impugned order dated 7.7.2010 (A-8). The applicant claims that his DoB is correctly recorded in middle & Matriculation Examination Certificate. Even though it is mentioned in order dated 7.7.2010 (P-8) that application of applicant dated 2.12.2009 is pending yet his claim has been rejected.
3. The respondents have filed a detailed reply. They submit that applicant has wrongly claimed submission of representation way back in 1978-79 as the designation mentioned in the same was not even in existence at that time. The applicant connived with other officials and tempered with his date of birth in service book for which he was given a warning. The date of Birth in Service Book mentioned as 17.5.1952 was made on the basis of declaration given by him and he had counter signed the entry. The cause of action, if any, arose to him in 1973 itself and at best he could have sought change in DoB upto 1978. Placing reliance on various case-law, it is claimed that correction of date of birth at the fag end of career is not permissible. The powers of courts cannot be used to make employees of the Government or its instrumentalities to continue in service beyond the period of their entitlement according to the date of birth accepted by such employers on the basis of such newly found material or to grant relief regarding emoluments on the basis of such change of date of birth. They place reliance on the following cases to oppose the claim of the applicant :-
(i) U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC, 465.
(ii) Commissioner of Police, Bombay v. Bhagwan V. Lahane, (1991) 1 SCC 247.
(iii) Union of India v. Harnam Singh, (19930 2 SCC 162.
(iv) Harchand Singh v. Punjab State, 204 (4) SLR, (P&H), 349.
(v) P.S. Bheemeswara Rao vs. Regional Joint Director of Intermediate Education, 2004 (3) SLR (AP), 347.
(vi) Sheo Pujan Lal Vs. State o Bihar, 2004 (1) SLR, (Patna) (DB), 593.
(vii) State of Punjab v. S.C. Chadha, 2004 (2) SLR (SC) 741.
(viii) State of Assam v. Daksha Prasad Dekha, AIR 1971 SC 173.
(ix) Government of Andhra Pradesh. M. Hayagreev Sarma.
4. They further submit that a discretion is vested in the appropriate authorities to accept or decline the request of the employees for change of DoB. Unless such discretion is exercised arbitrarily or offends specific rules, which are to the benefit of the employees, the court would not normally exercise such discretion. They submit that action on representation dated 15.4.1986 could not be taken as record pertaining to that period has already been destroyed. Record pertaining to November, 1979 has also been destroyed. In the alteration of date of birth, enquiry was conducted in which applicant and Smt. Satya Rani, LDC were found guilty of tempering with the service book. As per rules, the DoB recorded in service book is treated as final. GPF Receipt or Pay Certificate issued by AGE, E/M is not a proof of date of birth. In this case applicant did not approach the court in time and as such O.A. merits dismissal.
5. I have heard learned counsel for the parties and perused the material on file including the Original Record produced by the respondents.
6. On close scrutiny of pleadings and original record produced by the respondents, it is noticed that the applicant has in fact made a request for correction of his date of birth even prior to 1979 also, as is reflected in his letter / representation dated 12.11.1979 (A-1) wherein he has mentioned that his qualifications were not introduced in his service book and correct date of birth as 17.7.1952 has not been recorded. He has specifically mentioned in the said letter that while serving under GE (West) Firozepur, he applied for amendment of date of birth but got no response and then again wrote a letter vide Annexure A-1. He has categorically mentioned that his actual date of birth is 17.7.1952 on the basis of Matric / Higher Secondary Certificates which was already enclosed with his service book as claimed by him in the said letter.
7. It is relevant to mention here that this letter dated 12.11.1979 as well as subsequent letters were duly acknowledged by the office as is evident from the note written below these letters. Vide Endorsement in Annexure A-1, his qualification was inserted in his service book and for correction of his date of birth matter was referred to G.E. (East) for publishing the amendment. Annexure A-3 is dated 23rd February, 1978, a request by the applicant for correction of his date of birth.
8. This Court has also seen the original certificates of middle and Higher Secondary examination qualified by the applicant, wherein his date of birth is also shown as 17.7.1952.
9. Respondents in their reply as well have not denied the factum of receipt of Annexure A-1 while submitting that relevant qualification was added in his service book but at the same time, they deny that the applicant had applied for correction of his date of birth. Such stand taken by the respondents cannot be appreciated as on the one hand they have taken the plea of destruction of record for relevant period and on the other hand admitted part of the representation submitted by the applicant in 1979 (A-1). Thus, in view of the contrary stand taken by the respondents, possibility of applicant having made a request in 1978 vide Annexure A-3 also cannot be ruled out.
10. Thus, from the documents and facts as narrated above, what is gathered by this Court is that though initially applicant himself had mentioned his date of birth as 17.5.1952 but realizing the mistake, he made a request for correction of his date of birth on the basis of his Higher Secondary Certificate, which was perhaps already on record. This fact can be inferred simply because of the reason that subsequent entries in his service book show his date of birth as 17.7.1952 e.g. in G.P.F. Account upto 2010 (A-5) and in the salary slip for October, 2010 (A-6), his date of birth has been shown as 17.7.1952.
11. The respondents have failed to tell this Court as to on the basis of what material or document his date of birth was recorded either as 17.5.1952 or 17.7.1952. In such eventuality it goes without saying that the documentary evidence of applicants Higher Secondary Certificate is the most authenticated piece of evidence to infer that his date of birth is 17.7.1952 which appears to have been also corrected as such by the respondents on receipt of his representations which are also found to have been filed within 5 years of applicants service. Moreover, as per submission made by the respondents, the relevant instructions of getting the date of birth corrected by the employees have come into force in 1993 much after the request made by the applicant, therefore, these instructions cannot be made applicable retrospectively in applicants case. Therefore, respondents are held to have failed to make out their case on all counts.
12. The respondents have cited various case law on the issue involved in this case, however, in the given facts and circumstances of the case, these decisions are distinguishable. Rather in one of the cases cited by respondents in S.C. Chadhas case (supra), it is held that date of birth can only be corrected on the basis of clinching material which can be held to be conclusive in nature. In the present case, this Court is of firm opinion that Higher Secondary Examination Certificate, whose authenticity is also not doubted by the respondents is the most clinching, reliable and conclusive piece of evidence to draw the inference that the applicants correct date of birth is 17.7.1952. In the case of Harpal Singh and Anr. VS. State of Himachal Pradesh reported in AIR 1981, SC, 361, the Hon'ble Apex Court held that in the matriculation certificate or Board certificate or school certificate the entries with regard to the age are based on the entries in the birth register. These entries are admissible in evidence under Section 35 of the Indian Evidence Act. In the case of Nahar Singh Vs. State of Raj. And Anr. reported in WLC(Raj.) U.C (2002 at page 85, it has been held that when there are school certificate as also the opinion of the Medical Board with regard to the age are available on record, then in such a situation, school record or the matriculation certificate would prevail upon the medical opinion. Rule 12 of the Rules 2007 categorically envisages that the medical opinion from the medical Board should be sought only when the matriculation certificate or school certificate or any birth certificate issued by a Corporation or by any Panchayat or Municipality is not available.
13. Moreover, present case is not a case of change of years of birth and the applicant has been repeatedly asking for correction and notification of his date of birth as 17.7.1952 instead of 17.5.1952, with difference of only two months, that too on the basis of his matriculation certificate which appear to be a bonafide request.
14. So far as tempering with the date of birth at relevant page of applicants service book is concerned, it is observed that said alteration of date of birth from May, 1952 to July, 1952 (17.5.1952 to 17.7.1952) has never been sent to any Hand Writing Expert to seek his expert opinion and to hold the applicant guilty. Otherwise, the applicant has already been given warning as submitted by the respondents.
15. However, this Court refrains from making further comments on this issue as the point involved in the present case is of change of date of birth. Otherwise also on this document, R-3 which is alleged to have been tampered with by the applicant, various signatures with different dates are found to have been appended thereon, therefore, possibility of correction of his date of birth by the competent authorities themselves in this document cannot be ruled out as CE (West) has also put his signature on this document on 16.11.1988. Thus, as is observed here-in-above, for want of any authentic documentation on the basis of which, applicants date of birth was recorded as 17.5.1952, the original certificates shown to the Court showing his date of birth as 17.7.1952 along with other documents like GPF, Pay Slip issued by the respondents cannot be ignored.
16. Similarly, in Attestation Form and Form of Verifications-Roll dated 18.4.1973, submitted in the office of Deputy Commissioner, Ferozepur, the applicants date of birth is mentioned as 17.7.1952 along with mentioning of his educational qualification as B.A. Part-I April, 1971 as regular candidate. Thus, the present case of change of date of birth of the applicant appears to be a case of genuine bonafide mistake occurred while noting wrong date of birth which otherwise appears to have been corrected by the respondents later on as is seen from his GPF account and Pay-Slips . Even 1993 Instructions permit correction of such genuine bonafide mistake.
17. Thus, in the conspectus of the facts and legal position narrated above, the impugned order dated 7.7.2010 (A-8), is hereby quashed and set aside, with directions to the respondents to notify and treat the date of birth of the applicant as 17.7.1952 and allow him to continue in service for another two months till he superannuates on due date in July, 2012 with all the consequential benefits. No costs. Copy Dasti.
(SHYAMA DOGRA) MEMBER (J) Place: Chandigarh.
Dated: 31.05.2012 HC*
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O.A.No.1253-PB-2011