Central Administrative Tribunal - Mumbai
Date Of Decision: 30Th November vs Union Of India on 30 November, 2012
1 OA No. 503/2012 CENTRAL ADMINISTRATIVE TRIBUNAL BOMBAY BENCH, MUMBAI. ORIGINAL APPLICATION: 503 OF 2012 Date of decision: 30th November, 2012. CORAM : HON'BLE SMT. CHAMELI MAJUMDAR, MEMBER (J) Subhash Pandurang Nakhwa, Service (as Section Engineer at EMU Carshed, Kurla), R/at: Nakhwa House, Chendni, Koliwada, Anand Bharti Road, Opp. Parijat Building, Thane(East)-400603. ... Applicant (By Advocate Shri V.G. Indrale) VERSUS 1. Union of India, through its General Manager (Personnel Branch), Central Railway, Mumbai CST 400001. 2. Divisional Railway Manager, (Personnel Branch), Central Railway, Mumbai CST 400001. 3. Sr. Divisional Electrical Engineer, (Traction Rolling Stock), EMU Carshed, Central Railway, Kurla, Mumbai 400070. ... Respondents (By Advocate Shri S.C. Dhawan) O R D E R (ORAL) Per: Smt. Chameli Majumdar, Member (J)
The Applicant, presently working as Section Engineer at EMU Carshed, Kurla, has challenged the communication dated 17/08/2012 issued on behalf of Sr. DPO CSTM whereby the Respondents refused to change the recorded date of birth of the Applicant.
2 OA No. 503/20122. Briefly stated the facts of the case: The Applicant was appointed in the Railway Service as Class-IV employee as Khalasi on 21/04/1975. The date of birth of the Applicant was recorded in the Service Book in September 1975 as 23/11/1952. The same date of birth was recorded on the basis of the School Leaving Certificate submitted by the Applicant. The contention of the Applicant now is that the Applicant did not notice that the date of birth was wrongly recorded in the School Leaving Certificate as 23/11/1952 instead of 23/11/1953.
3. The Applicant made out a case that the Respondent No. 3 advised the Applicant to submit an extract of his Birth Certificate recorded in the office of Register of Births and Deaths. The Applicant, thereafter, applied to the office of the Register of Births and Deaths, erstwhile Thane Municipal Council for issuance of the relevant extract of the certificate of date of birth. Accordingly, the same was provided on 24/08/1979 showing date of birth as 23/11/1953 as recorded at page No. 104 of the Registration Book. The Applicant also submitted a duly affirmed affidavit in original on stamp paper alongwith extract of the Birth Registration Certificate to the authorities to correct his date of birth. The Applicant, thereafter, was under bonafidary belief that the Respondent No. 3 corrected his date of birth in the Service Record. The 3 OA No. 503/2012 Applicant further contended that in the last week of December, 2005 when the Applicant casually visited the office of Respondent No. 3 for collecting his pay-slip for the month, he was informed that the same was not done. The Applicant, therefore, submitted his Written Application on 02/01/2006 alongwith the above mentioned documents for correcting the date of birth in the Service Record. The Applicant annexed the said representation dated 02/01/2006 but without any proof of receipt on the said application. The Applicant contended that he was under the impression that after 2006 the correction was made and that is why in monthly pay-slip, the date of retirement of the Applicant was shown as 30/11/2013. In pan-card of the Applicant also, his date of birth appears to be as 23/11/1953.
4. The Applicant was shocked in the month of March, 2012 when the Applicant was informed that the Applicant would retire on 30/11/2012 instead of 30/11/2013. The Applicant made a representation dated 19/03/2012. The Respondents thereafter, issued a letter dated 17/08/2012 declining to correct the date of birth. The contents of the said letter are inter-alia:
"1) In your Service Register your date of birth is recorded as 23/11/1952, you have been apppointed in raiway services on 21/04/1975.
You have signed the same. You are literate person.
2) You have submitted you School Leaving Certificate dated 20/09/1975 shows your date of birth as 23/11/1952 at the time of your appointment in the Railway services.
4 OA No. 503/20123) At the time of your appointment in the Railway Service you had submitted attestation form dated 30/12/1976, wherein you have mentioned your date of birth is 23/11/1952.
4) As per the seniority list published time to time, your date of birth is 23/11/1952. You have not raised any objection regarding your date of birth.
From the above it is seen that the Date of Birth 23/11/1952 is declared by you at the time of appointment and the same is accepted by you also in time to time.
It is also mentioned that there is no clerical error while recording your date of birth in Service Register (SR) at the time of appointment.
As per extent rules there is no procedure of change in recorded date of birth."
5. The Respondents filed their reply and denied all the allegations made by the Applicant. The Respondents contended that the Applicant in January, 2003 inspected his Service Book and expressed his satisfaction about his date of birth. The relevant extract was annexed to the Reply. He admitted in the Original Application that upto 2006, his date of birth was not changed in the Service Book and was shown as 23/11/1952 which prompted him to submit a representation for correction of date of birth. The Respondents further contended that if the Applicant was aggrieved with the recorded date of birth in his School Leaving Certificate, he should have approached the School authorities first for change of his date of birth, thereafter to the Railway Administration after notifying the same in Gazzete.
5 OA No. 503/2012The Birth Certificate and the Affidavit was attached to the letter dated 02/01/2006. From the receipt stamp, it appears that the said letter was received by the office on 06/03/2012. Therefore, the Respondents raised suspicion with regard to the date of letter being 02/01/2006 which was received on 06/03/2012. However, the first of such application for correction of date of birth could not be before 02/01/2006 i.e. after 31 years from the date of joining the Railway service. The Applicant failed to produce evidence to prove that the extracts of the Birth Certificate or the Affidavit of the year 1979 were received by the Department. The learned counsel for the Respondents rightly pointed out that the Affidavit was affirmed in 1979 for the correction of date of birth in the School Leaving Certificate. The Applicant, however, did not approach the School authorities for correction in the School Leaving Certificate. The Respondents contended that the Applicant approached them in 2012 only with his letter which is allegedly dated 02/01/2006. However, the correction which was made by hand in Service Book does not bear any signature or any initials of the officer authorised to do so. In the attestation form, the date of birth in words is still recorded as 1952.
6. The Respondents annexed the Rules of Railways regarding the change of date of birth. Para 225 of 6 OA No. 503/2012 Indian Railway Establishment Code deals with the date of birth. Clause-III of sub-para 4 says that the date of birth could be altered but the request for such alteration should not be entertained after three years of service or after completion of the probation period, whichever is earlier. Sub-para 4 of para 225 further says that the date of birth as recorded shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall however be open to the President in the case of a Group 'A' & 'B' Railway servants and the General Manager in the case of a Group 'C' & 'D' Railway servants to cause the date of birth to be altered. In the instant case, there is no document to show that he ever approached the General Manager within the period as stipulated in the relevant Railway Code.
7. I have heard Shri V.G. Indrale, learned counsel for the Applicant and Shri S.C. Dhawan, learned counsel for the Respondents.
The learned counsel for the Applicant has relied on the following judgments:
(1) Santenu Mitra v/s State of West Bengal reported in (1998)5 SCC 697.(2)
Birad Mal singhvi v/s Anand Purohit reported in (1998) SC 1786.(3)
CIDCO v/s Vasudha Gorakhnath Mandevlekar reported in (2009)7 SCC 283.
7 OA No. 503/2012 (4)Harpal Singh v/s State of H.P. reported in AIR (1981)1 SCC 361.
The learned counsel for the Respondents relied on the following judgment:
Punjab & Haryana High Court at Chandigarh v/s Megh Raj Garg & Anr. reported in (2010)6 SCC 482.
8. The judgement pronounced by the Hon'ble Supreme Court of India in the case of CIDCO v/s Vasudha Gorakhnath Mandevlekar (supra) cannot be made applicable in the facts and circumstances of this case. In the said case, in the application form submitted by the Respondent before the Hon'ble Supreme Court in response to the memo dated 25/07/1975, the date of birth was typed as 02/10/1948. The year was corrected in handwriting as 1950 in the form itself by the Respondent. The Birth Certificate produced by the Respondent before the Supreme Court showed the date of birth to be 02/10/1950. The Seniority list, the Gradation list, the Retirement list, etc. submitted by the Respondent before the Supreme Court showed the date of birth as 02/10/1950. The authority issued the notices, first of such notice was in 1997 and thereafter in 2004 asking the Respondent to submit the documents. The Hon'ble Supreme Court held that the charge of interpolation of Service Records cannot be sustained since in all other records i.e. Gradation list, Seniority list and Retirement list, the date of 8 OA No. 503/2012 birth was shown as 02/10/1950. The other judgements relied by the Applicant are relating to the trial of offences under Criminal law, and has no bearing in adjudication of the service dispute.
9. The learned counsel for the Respondents relied on the judgement of Punjab & Haryana High Court at Chandigarh v/s Megh Raj Garg & Anr. (supra). In the said judgement, the Supreme Court has clearly said that the Competent Authority cannot entertain any application for correction of age beyond the time limit prescribed by the relevant rule. The Hon'ble Supreme Court has time and again cautioned the Civil Courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth.
In this regard, the Hon'ble Supreme Court in the said judgement referred to the judgment Union of India v/s Harnam Singh, (1993)2 SCC 162. In Harnam Singh's case, the Hon'ble Supreme Court observed:
"7. A government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A government servant who has declared his age at the initial stage of the employment is, of course, not precluded for making a request later on 9 OA No. 503/2012 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. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a government servant can be entertained. A government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said:
(SCC pp. 625-26, para 4)
10. In the instant case, the rules clearly prescribe that an application for change of date of birth in respect of Group 'C' & 'D' Railway servant should reach the General Manager within three years of service or after completion of the probation period.
10 OA No. 503/201211. The Hon'ble Supreme Court in the case of U.P. Madhyamik Shiksha Parishad v/s. Raj Kumar Agnihotri, AIR 2005 SC 2491 held that when a statutory rule provides that an application for correction in date of birth must be made within two years of issuing certificate, correction of date of birth considered after several decades, specially on the eve of superannuation was disallowed and the plea of continuing cause of action was rejected.
12. The Hon'ble Supreme Court in the case of State of Tamil Nadu v/s. T.V. Venugopal reported in (1994)6 SCC 302 has further held that in the exercise of power of judicial review the courts or tribunal will not reappreciate the evidence to reach a different conclusion when the application for correction is rejected by the authorities. The dispute cannot be placed before the Court for resolution in an application for judicial review since the Court is not equipped to decide such disputed questions of fact.
13. Accordingly, the Original Application is dismissed. No order as to costs.
(Smt. Chameli Majumdar) Member (J) ssn.