Madhya Pradesh High Court
Prabhat Kumar vs Union Of India (Uoi) And Ors. on 6 May, 2002
Equivalent citations: 2002(4)MPHT560
Author: Dipak Misra
Bench: Dipak Misra, Uma Nath Singh
ORDER Dipak Misra, J.
1. We are compelled to preface this judgment by stating in a most categorical and unequivocal manner that the effort of the petitioner to get his age of superannuation extended is indefatigable at times creating a sense of puzzlement and at times transgressing all limits of rationality and logicality. The persuasive proclivity is unmatched but unfortunately unwarranted. Hopes harboured by the petitioner would unfold layer by layer when the facts would be uncurtained and we will be required to deal with the same.
2. The petitioner was working as H.S.-I in the Machine Shop of the Gun Carriage Factory. It is his case that at the time of his entry into service in the historic year of 1962 his date of birth was mentioned as 7-8-1940 on the basis of the educational certificate as he had passed Class VII. He appeared in the matriculation examination in the year 1966 but fortune did not favour him and he remained unsuccessful to cross the bridge. However, the certificate granted by the authority of the Board of Secondary Education reflected his date of birth as 7-8-1942. Time as usual passed without even waiting for darkness of night or the bright rays of the sun and with the passage of time many an employee raised disputes with regard to dates of birth inasmuch as dates of birth in respect of some employees were entered on the basis of the medical examination. Keeping the aforesaid factual scenario in view the concerned Department on 12-6-1987 issued a letter circular inviting objections by 25-6-1987 to substantiate the dates of birth. The toll of time as it seems did not have much of effect or impact on the petitioner but his undaunted attitude prompted him to approach the Central Administrative Tribunal (in short 'the Tribunal'), Jabalpur Bench, Jabalpur by filing an O.A. No. 79/98 claiming correction of his date of birth. The Tribunal vide Paragraph 3 of its order held as under:--
"The applicant has neither made any representation nor has placed copy of it on record. There is also no mention of the representation in the application. In this background we cannot entertain this application. Any application for correction of date of birth should be made within five years of entry into service. Further in the instant case the applicant passed matriculation in the year 1966 and in his Matriculation Certificate the date of birth recorded is 7-8-1942. The applicant should have approached the authorities at least within five years of his passing the Matriculation Examination. That having not been done, the application is dismissed without notice to the other side."
3. The petitioner chose to maintain golden silence at that juncture not to assail the aforesaid order, but being enterprising in nature, if we allow ourselves to say so, and slightly innovative, he approached the Tribunal in the O.A No. 850/98. The Tribunal did not lend much importance to the pleas putforth by the petitioner. It was his stance that he had submitted a representation in the year 1987 for alteration of his date of birth but the Tribunal did not give much credence to the said version. Quite apart from the above, the Tribunal also opined that the application was barred by limitation as well as res judicata. Being of this view, the Tribunal rejected that aforesaid Original Application.
4. Being unsuccessful before the Tribunal the petitioner has approached this Court under Article 227 of the Constitution of India assailing both the orders and prayed for issue of a writ in the nature of certiorari for quashment of the aforesaid orders with a further prayer that his date of birth should be declared as 7-8-1942,
5. It is averred in the petition that the petitioner had produced the School Leaving Certificate which indicated his date of birth to be 7-8-1942 and when the recruitment was made in mass scale, he was not shown the prescribed proforma and was compelled to sign. It is also urged in the petition that though he had submitted a representation no action was taken and, therefore he was compelled to approach the Tribunal but the Tribunal has erroneously refused to interfere in the matter. School Leaving Certificates have been brought on record to show that his date of birth has been incorrectly mentioned in the records and requires to be corrected.
6. A return has been filed by the respondents contending, inter alia, that the petitioner had signed at the time of entry into his service and that tantamounts to acceptance of correctness of She document and the petitioner cannot be permitted to play fast and loose. A preliminary objection has also been taken that at the fag end of the service career of the petitioner he had approached the Tribunal for correction of his date of birth which is impermissible in law. It is also urged that the petitioner had appeared in the Matriculation Examination in the year 1966 but he did not approach the authorities concerned for rectification of the error, if any. It is also averred that the petitioner had signed on the attestation form and no documentary evidence were produced in the year 1987 hut duplicate certificate was produced in the year 1998. It is also the case of the respondent that as there has been gross delay in seeking correction of date of birth the matter has been rightly rejected by the Tribunal, We may hasten to add, though the Tribunal vide order dated 10-2-1998 has mentioned that the applicant had passed the matriculation examination in the year 1966 and as an actual fact, he had failed in the examination.
7. Questioning the soundness of the orders of the Tribunal, Mr. Parag Chaturvedi, learned Counsel for the petitioner has contended that the employer did not conduct any enquiry to confer the benefit of age to the petitioner and the Tribunal in a mechanical manner rejected the application in limine on 10-2-1998. The learned Counsel fairly submitted that if the order dated 10-2-1998 is not set aside the other orders cannot be set aside inasmuch as it is the fall out of the aforesaid order. It is his submission that the petitioner has passed Class VII and had signed wherever it was required but onus is cast on the department to prove that the petitioner was born in 1942. It is also urged by him that no opportunity was given to the petitioner to produce the documents in regard to his date of birth. In support of this submission he has placed reliance on the decision rendered in the case of S.C. Verma v. Union of India and Anr., passed by a Division Bench of this Court in W.P. No. 4597/99 --2000(4) M.P.H.T. 384.
8. Resisting the aforesaid submissions Mrs. Indira Nair, learned Senior Counsel for the respondents has contended that the petitioner time and again, had, in token of acceptance, signed the documents in proof of his age and, therefore, he cannot be permitted to take a somersault. It is also urged by her that at the fag end of his career an employee cannot seek rectification of date of birth, as such an attempt would bring chaos in administration of many an organization. The learned Senior Counsel further submitted that the petitioner pursuant to the circular dated 12-6-1987 contained in Annexure R-4 did not file any objection and, therefore, question of holding any enquiry did not arise. It is also urged by her that the decision rendered in the case of S.C. Verma (supra) is distinguishable on facts.
9. To appreciate the rival submissions raised at the Bar, we have carefully perused the order passed by the Tribunal. In the initial order dated 10-2-1998 the Tribunal had taken exception to the fact that the petitioner did not approach the authorities within five years of passing of the matriculation examination. We may quickly add that the Tribunal has expressed the opinion as if the petitioner has passed matriculation, but actually he had failed and the fact remains that he had undertaken the examination. If the certificate which was relied upon was given to him in the year 1966 mentioning his date of birth as 7-8-1942, he could have approached the authority within a reasonable time.
10. We shall refer to the original documents which have been produced by the learned Counsel for the respondents at the appropriate stage.
11. Mr. Chaturvedi, learned Counsel for the petitioner submitted that he had not filled up the form but only had signed. However, he did not dispute the original documents. It was his further submission that initially he had passed Class VII and on that basis the date of birth was entered into but the said document is not being produced by the department. To appreciate the aforesaid stand of Mr. Chaturvedi we have perused the original documents wherein we find that the date of birth is 7-8-1940 as per educational certificate. The petitioner is the signatory to the said document and he had signed in English. The document which we have referred to above is the 'workman record' service. Another original document which has been produced before us is the attestation form. In the said document the date of birth of the petitioner has been mentioned as 7-8-1940. It is apposite to mention that the said date also finds mention in the letters and the petitioner has signed and given the date underneath his signature and both are in English. It is also pertinent to mention here that the petitioner had filled up two attestation forms. Another document which is of significance is the application filed by the petitioner wherein he has nominated his legal heirs in the Provident Fund proforma. In the said document the date of birth has been mentioned as 7-8-1940 and the petitioner has signed on both the pages. Thus, it is quite clear that the date of birth was entered on the basis of the attestation forms and it was maintained in the workmen's record of service. The petitioner though appeared in the matriculation examination in the year 1966 yet he signed in the Provident Fund form wherein his date of birth was mentioned.
12. Submission of Mr. Chaturvedi is that when the letter circular was issued in 1987 he filed his objection but the same was not taken note of. No document indicating filing of objection was produced before the Tribunal as it is apparent from the order passed in O.A. No. 850/98. Mr. Chaturvedi has fairly conceded that he does not dispute that he had filed no proof regarding putting forth an objection. That apart, if petitioner had filed the petition in 1987 and no action was taken for rectification of his date of birth, he could have immediately approached the Tribunal but he preferred to sleep like Rip Van Winkle. We have stated earlier that he approached the Tribunal in the year 1998 after almost 11 years. Thus, in effect it is to be construed that the petitioner approached the Court two years prior to the date of his retirement.
13. In this context we may profitably refer to the decision rendered in the case of Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran, AIR 1993 SC 2647, wherein their Lordships have held as under :--
"If the date of birth of a public servant, is corrected only on the basis of a report submitted by a Revenue Officer after holding an enquiry, according to us, it will introduce uncertainty, in public services. This Court has repeatedly pointed out that correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. Any such order must be passed on materials produced by the public servant from which the irresistible conclusion follows that the date of birth recorded in the service book was incorrect. While disposing of any such application, the Court or the Tribunal, has first to examine, whether the application has been made within the prescribed period under some rule or administrative order. If there is no rule or order prescribing any period, that the Court or Tribunal has to examine, why such application was not made within a reasonable time after joining the service."
14. In the case of State of Orissa and Ors. v. Shri Ramanath Patnaik, 1997 (II) LLJ 1022 (SC), wherein a Two Judge Bench in Paragraph 3 held as under:--
"3. The controversy is no longer res Integra, this Court has considered the entire case law on this point in State of Tamil Nadu v. T. V. Venugopalan, JT1994 (5) SC 337. Therein this Court has held thus :--
'It is well known that the service record would be opened after the Government servant enters the service record would be countersigned by the Government servant. The date of birth as entered in the school record is the source of material for making entry in the service record'."
15. Recently in the case of G. M., Bhamt Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and Ors., AIR 2001 SC 72, the Apex Court referred to the earlier decisions rendered in the case of Union of India v. C. Ramaswamy, AIR 1997 SC 2055; Bum Standard Co. Ltd. v. Dinabandhu Majumdar, AIR 1995 SC 1499 and the decision rendered in the case of R. Kirubakaran (supra) and expressed the view as follows :--
"The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends that quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters Courts should bear in mind that a change of the date of birth long after joining service, particularly the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the Court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect.
The burden can be discharged only by producing acceptable evidence of a clinching nature. Court is constrained to make this observation because it is found that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the Courts are inclined to pass an interim order for continuance of such employee beyond the dale of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the Court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion which he has all along been lead to believe will be his due on the retirement of the senior."
(Quoted from the platitum)
16. In view of the aforesaid exposition of law there remains no scintilla of doubt that all efforts have to be made for rectification of date of birth at the earliest. It has to be within the period stipulated in the Rules or provided in the circular or within a reasonable period of time.
17. Mr. Chaturvedi, learned Counsel for the petitioner has commended us to the decision rendered in the case of State of M.P. v. R.P. Sharma, AIR 1996 SC 2665. He has referred to Paragraph 10. It reads as under :--
"10. The question arises whether a further opportunity need to be given to the respondent ? In our considered view, the principles of natural justice cannot be stretched to the ridiculous edge of opportunity at every stage. Lokayukt, a retired Chief Justice had undertaken full-fledged trial whereat the respondent had been given ample opportunity to prop up his best trump card and had given him report in the light of the unimpeachable evidence repeat performance by the Government in an empty ritual. The principle of natural justice must be pragmatically allowed, fruitful play to meet the given fact situation. When the respondent had the opportunity before the Lokayukt and had adduced all the evidence, no further opportunity need to be given at the time of correcting the date of birth on the basis of the report submitted by the Lokayukt. It would, therefore, be seen that the Tribunal was grossly in error in directing that he should be given an opportunity afresh before correcting the date of birth,"
18. We have carefully perused the aforesaid judgment. Submission of Mr. Chaturvedi is that there should have been an enquiry and as there has been violation of principle of natural justice, the matter should be remitted to the department to conduct an enquiry. We are afraid such is not the ratio of the aforesaid case. The factual matrix is totally different. In the aforesaid case the question arose whether there had been an enquiry when the objection was raised and in that context their Lordships observed that Lokayukt, a retired Chief Justice, had undertaken full-fledged trial it cannot be said there was no adherence to principle of natural justice. In that context the Apex Court allowed the appeal preferred by the State of M.P. and set aside the order of the Tribunal.
19. Mr. Chaturvedi has drawn immense inspiration from the case of S.C. Verma (supra). We have bestowed our anxious consideration and carefully perused the decision rendered in the aforesaid case. In the said case the petitioner, S.C. Verma, was employed as a tailor, Grade-C. His date of birth was recorded on the basis of medical certificate. He was appointed in the year 1963. He came to know that the said entry is not in consonance with his school certificate. As this factum was known to him in the year 1976 he preferred a representation immediately without any delay. He furnished school leaving certificate in the year 1978 and on that basis the Division Bench came to hold in Paragraph 10 as under :--
"10. For the reasons stated above, it cannot be said that this case is barred under Rule 56 Note 6 which calls upon a person to apply for correction of date of birth within five years from December 15, 1979. On the principle of reasonableness, even assuming that the petitioner was appointed on the post prior to the commencement of Note 6 of F.R, 56, the petitioner cannot be denied the benefit of this rule. Even otherwise, the action would be violative of Article 14 of the Constitution of India, since, there is no basis for discrimination between the employees who seek correction of date of birth prior to December 15, 1979 and those who seek such correction thereafter (see Union of India v. Hamam Singh, AIR 1993 SC 1367). Therefore, rejection of petitioner's representation in 1983 is rendered illegal in the light of the decision and so also the rejection recorded in 1996."
20. The present factual matrix and the factual 'expose' in both cases are quite distinct. In the present case the attestation form was given by the petitioner wherein the date of birth was mentioned as 7-8-1940. He had signed the said document. In the workmen's record, he also signed the same and the date was reflected. That apart, he appeared in the matriculation examination in the year 1966. He might have failed in the examination but reliance is placed on the date of birth mentioned therein. The petitioner (if his version is accepted that his date of birth is 7-84942) should have submitted a representation immediately but he chose to maintain a sphinx like silence and get into hibernation. He had submitted the Provident Fund form wherein his dale of birth was mentioned as 7-8-1940. The said form was submitted on 17-9-1974 as has been mentioned at two places in the said form. It is submitted by Mr. Chaturvedi, learned Counsel for the petitioner that he was a layman and, therefore, he was not aware that his date of birth had been filled up in that manner. When the petitioner at the time of entry into service had passed Class VII and at the time of filling up the Provident Fund form he had appeared in the matriculation examination, it cannot be believed that the petitioner was a layman. With the passage of time he had gained experience and also appeared in the matriculation examination. Thus, the petitioner is making a maladroit effort that he was not aware about his date of birth in the year 1962. In 1974 he chose to sign the form. If we accept the submission of Mr. Chaturvedi that the petitioner was a layman, law does not countenance to play possum or appreciate any kind of playing possum. Judging from any angle the case of S.C. Verma (supra) cannot be compared with that of the petitioner and, therefore, we unhesitatingly distinguish the decision rendered in the case of S.C. Verma (supra). We repeat at the cost of repetition that in the case of S.C. Verma (supra), his entry was on the basis of medical certificate and he was quite prompt and he had brought the documents immediately, and in that backdrop the Division Bench interfered. But in the present case, as has been indicated hereinbefore, the petitioner had not availed the opportunity within a reasonable time and approached the Tribunal only a couple of years before his retirement. Such an action is not to be appreciated and no indulgence can be given to the petitioner.
21. In view of our preceding analysis, we are not inclined to interfere with the orders passed by the Tribunal and accordingly, the writ petition stands dismissed without any order as to costs.